Law Commons^™

Local Power, Alexandra B. Klass, Rebecca Wilton

Vanderbilt Law Review

This Article is about “local power.” We use that term in two distinct but complementary ways. First, local power describes the authority of local governments to enact regulatory policies in the interests of their citizens. Second, local power describes the authority of local governments to exercise proprietary control over the sources and delivery of electric power to their citizens. This dual meaning of local power is particularly important today, as an increasing number of local governments are seriously considering “municipalizing”--taking control of local electric power systems-—at the same time that, outside the electric power sector, many states are constraining local …

Zombie Energy Laws, Joshua C. Macey

Vanderbilt Law Review

This Article traces the development of three legal rules—cost recovery for vertically integrated utilities, the requirement that regulators assess the financial viability of energy projects before issuing a certificate of public convenience and necessity, and the filed rate doctrine—that emerged out of the view that electric power companies should be shielded from market forces. It argues that important elements of these legal rules have become “zombie energy laws.” Zombie energy laws are statutes, regulations, and judicial precedents that continue to apply after their underlying economic and legal bases dissipate. Zombie energy laws were originally designed to protect consumers by, among …

Sunny And Share: Balancing Airspace Entitlement Rights Between Solar Energy Adopters And Their Neighbors, Joshua B. Landis

Vanderbilt Law Review

In an effort to ameliorate the effects of climate change, state and local governments have made increasingly large commitments to support solar energy adoption. For solar investments to be successful, however, solar adopters require unobstructed access to sunlight, which is directly at odds with the interests of neighbors and developers who value vertical development, especially in urban centers. To mitigate these looming conflicts, governments have enacted a variety of laws that assign airspace entitlements to either solar adopters or their neighbors. Unfortunately, these solutions are all poorly tailored for dense cities, which is where future airspace conflict is likely to …

The Regulatory Contract In The Marketplace, Emily Hammond, David B. Spence

Vanderbilt Law Review

For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract--a nineteenth-century concept that stands more for ordered regulation than competitive markets. This Article examines how piecemeal pursuit of two energy visions has produced mismatches between rapidly evolving markets and governance institutions that cannot change as quickly. To better evaluate these mismatches, the Article develops a framework that accounts not just for market operation and environmental externalities, but …

Symposium - Supply And Demand: Barriers To A New Energy Future, Michael P. Vandenbergh, J. B. Ruhl, Jim Rossi

Vanderbilt Law Review

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon- constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of …

Environmental Law And Fossil Fuels: Barriers To Renewable Energy, Uma Outka

Vanderbilt Law Review

Renewable energy is gaining momentum around the globe, but the United States has only just begun to change its energy trajectory away from fossil fuels. Today, only about 10% of electricity in the United States is generated from renewable energy, and most of that comes from hydroelectric power plants that have been operating for many years. The U.S. Energy Information Administration projects 30% of new capacity over the next twenty years will utilize renewable resources, without significant changes in U.S. energy policy, but at that pace renewable energy will still account for only 16% of generated electricity. These prospects stand …

Interstate Transmission Challenges For Renewable Energy: A Federalism Mismatch, Alexandra B. Klass, Elizabeth J. Wilson

Vanderbilt Law Review

It is impossible to talk about developing renewable energy resources in the United States without also talking about developing electric transmission infrastructure. More specifically, the transmission-planning strategies that may have worked in the past are no longer effective to integrate new sources of renewable energy into the transmission grid. Transmission lines were historically built to link large stationary power plants to nearby electricity demand centers like cities. For renewable energy, however, state mandates and policies are driving investment in wind-and to a lesser extent solar-energy, creating a need for new transmission lines to link these dispersed resources with electric load …

Building-Related Renewable Energy And The Case Of 360 State Street, Sara C. Bronin

Vanderbilt Law Review

This Article focuses on small-scale and midsized facilities and does not consider large-scale facilities, which tend to be located far from population centers. These facilities certainly raise pressing legal concerns, not least of which is how the energy sprawl they create should be managed. Indeed, siting (along with initial start-up financing) is a primary barrier to large-scale renewable energy. This Article sets large-scale facilities aside and focuses primarily on projects whose scale allows them to be incorporated into inhabited structures.

Sustainable Consumption, Energy Policy, And Individual Well-Being, Daniel A. Farber

Vanderbilt Law Review

The United States is an exceptional place in many ways, not least in its consumption. The United States consumes a disproportionate share of the world's energy and resources, with a correspondingly large environmental footprint. At present, although we have been successful in creating economic wealth, well-being has lagged behind. Could the United States shift to a more sustainable path? Would that require an unacceptable sacrifice of social welfare? This Article argues that a shift really is possible, and that many of the steps to sustainability would actually make people better off even apart from their environmental benefits.

At present, we …

Hydro Law And The Future Of Hydroelectric Power Generation In The United States, Dan Tarlock

Vanderbilt Law Review

Hydroelectric energy ("hydro") is the oldest major source of noncarbon, renewable energy in the United States. For three reasons, increased hydro generation should be a major element of any national climate change and energy-security policy designed to promote the greater use of renewables to help the country transition to the production of sustainable, i.e., noncarbon-based, energy. First, hydro is relatively clean because it does not cause air pollution or substantial greenhouse gas emissions.' Second, hydro is relatively reliable. Third, hydro can help wean the United States from its dependence on imported and often politically unstable hydrocarbon sources of energy, because …

Blowing Hot Air: An Analysis Of State Involvement In Greenhouse Gas Litigation, Caroline Cecot

Vanderbilt Law Review

In Massachusetts v. EPA (2007), the U.S. Supreme Court interpreted the Clean Air Act ("CAA") to require the Environmental Protection Agency ("EPA") to regulate greenhouse gas emissions1 from motor vehicles if the EPA Administrator finds that the emissions endanger public health and welfare ("Endangerment Finding"). In December 2009, the Administrator made such an Endangerment Finding, obligating the EPA to work with the National Highway Traffic Safety Administration ("NHTSA") to develop average fuel economy and greenhouse gas emission standards for new light-duty vehicles. After issuing proposals and reviewing comments from the public, the two agencies announced their groundbreaking final regulation ("Tailpipe …

State Taxation Of Energy Resources: Are Consuming States Getting Burned?, Nancy E. Shurtz

Vanderbilt Law Review

The Arab oil embargo of 1973 and the severe energy shortage it caused in the United States prompted federal authorities to formulate a national energy policy that would encourage exploitation of domestic energy resources. As the federal government has implemented this energy policy, states rich in natural resources have begun to tax the energy mining and production operations within their borders.

In this Article Professor Shurtz discusses the constitutional limits of this taxation and examines how the revenues from these taxes alter the balance of wealth between energy-producing and energy-consuming states. Professor Shurtz concludes that revisions in revenue sharing formulae, …

Implied Covenants In Oil And Gas Law Under Federal Energy Price Regulation, Jacqueline L. Weaver

Vanderbilt Law Review

This Article seeks to determine whether the federal pricing regulations have imposed new duties on the lessee in his relationship to a lessor, and, if so, the nature, scope, and consequences of those duties. The Article contends that the federal pricing schemes in oil and gas will lead to a renaissance of certain implied covenants that the law has traditionally recognized--albeit now framed in a new setting. The Article focuses on those issues that are likely to require resolution under both the implied covenant to market and the less well-known implied covenant to seek favorable administrative action.

The Role Of Warranties And Product Standards In Solar Energy Development, William H. Lawrence, John H. Minan

Vanderbilt Law Review

This Article examines the use of warranties and product standards in solar marketing as ways to bring about the needed confidence in and acceptance of solar equipment. The first part of the Article analyzes relevant warranty law from the perspectives of solar sellers and buyers. Some government and private groups have argued that warranties can provide the needed impetus for solar development, and there is thus a great tendency today to view warranties as the means to encourage solar usage. The premise advanced in this part of the Article, however, is that warranty law, operating independently, is unlikely to instill …

Natural Gas Rate Design: A Neglected Issue, Richard J. Pierce, Jr.

Vanderbilt Law Review

The theses of this Article are: (1) the present method of allocating natural gas costs among consumers produces significant allocative inefficiency that has contributed to the present problems in the natural gas market and is certain to create even greater problems in the future; (2) the new rate designs suggested over the past years in regulatory and congressional debates would do little to eliminate the allocative inefficiency inherent in present rate designs and would introduce unnecessary collateral problems; (3) several approaches to the rate design issue potentially could eliminate or greatly reduce allocative inefficiency at a tolerable cost; and (4) …

The Energy Crisis: The Need For Antitrust Action And Federal Regulation, P. Scott Dye, Samuel H. Gillespie, Iii, Steven P. Howard, Franklin M. Tatum

Vanderbilt Law Review

The energy industry faces a crisis--an energy shortage that may not be alleviated for a number of years. Unlike the transitory regional supply shortages of the past, the present crisis is far more pervasive,threatening the industrial and economic progress of the nation. Authorities have predicted that this energy gap, spurred on by the convergence of a variety of circumstances affecting the delicate balance of supply and demand, will have collateral consequences that stagger the imagination, including sharp buyer competition for scarce fuel supplies and spiraling consumer prices for basic fuel services. The very existence of the crisis raises many grave …

Some Legal And Economic Aspects Of Industrial Development Financing, Everett H. Falk

Vanderbilt Law Review

The increasing popularity of industrial development financing suggests that there are considerable benefits to be gained from the intelligent use of these plans. However, before a community commits itself to a particular industrial development project it should develop a clear concept of the direction in which the community is to move and it should seek to define its long-range economic objectives in the context of its ability to support industrial growth and its economic relation to other regions. The states themselves can, with professional assistance,undertake studies to define regional objectives; but statutory standards implemented by state agencies are necessary to …

Aec Production And Distribution Of Radioisotopes: State Trading In A Free Enterprise Economy, E. Blythe Stason

Vanderbilt Law Review

Among the one hundred or so business-type activities of the Government are certain operations of the Atomic Energy Commission. In this article we shall examine the origin, growth and usefulness of just one phase of these AEC activities, that is, the production and distribution of radioisotopes. This activity is singled out for emphasis partly because of the remarkable success story resulting from the use of such isotopes, but more especially because of an unusual and even unique aspect of "state trading" introduced into the business by the AEC. We refer to, and shall explain in some detail, an unusual self-limiting …

Expanding Jurisdiction Of The Federal Power Commission And The Problem Of Federal-State Conflict, William A. Campbell

Vanderbilt Law Review

After exploring federal-state conflicts in the granting of licenses for hydro-electric projects, it is clear that, thus far, the FPC has won most of the disputes; and this is not altogether bad, for there are certainly legitimate national interests to be protected here. But there are also legitimate state interests to be protected, not out of concern for the preservation of federalism as a political theory, but because the state is the political unit with the primary concern and responsibility for certain matters and because it can administer and regulate those matters with a higher degree of effectiveness than can …

Annual Survey Of Tennessee Law, John S. Beasley, Ii

Vanderbilt Law Review

The Union Carbide and Ferguson cases were suits to recover Tennessee sales taxes and use taxes paid under protest for 1956 and 1958. Carbide and Ferguson urged that since they were under contract to the Atomic Energy Commission, the legal incidence of the tax was on the United States directly and therefore invalid. Carbide had been secured in 1943 to manage and operate certain plants involved in work on the atomic bomb, and Ferguson had subsequently been engaged to build additional facilities for this purpose. Both contended that their relationship with the United States and the Atomic Energy Commission was …

New Approaches By The Fpc / Scope Of Judicial Review, Charles E. Mccallum, Joel Porter

Vanderbilt Law Review

New Approaches By the FPC to the Regulation of Natural Gas Producers: an Evaluation

Since 1954 the independent producers of natural gas have been regulated by the Federal Power Commission, operating under the Natural Gas Act' as construed by the Supreme Court in the Phillips case. The results of this regulatory activity have been frustration and delay. Recently the Commission has taken steps to relieve some of its miseries. It has instituted a new approach to producer regulation, area pricing,and it has by regulation outlawed the use of certain contract provisions, indefinite price adjustment clauses, deemed especially harmful to the …

Cost Adjustment In Utility Rate Schedules, Joe H. Foy

Vanderbilt Law Review

For many years public utilities and regulatory commissions have been greatly concerned over the time and expense involved in proceedings relative to utility rates. Few types of legal proceedings are more complex, intricate and expensive than the full-blown utility rate case, with its myriad problems in valuation, economics, accounting, law and engineering. Particularly during inflationary periods, such as the present, mounting expenses of operation confront utilities and commissions with the dismal prospect of repeated applications for rate adjustment and formal hearings thereon. It is not surprising that techniques have been sought to simplify the rate making process, consistent with the …

Interstate Compacts As A Device To Develop And Regulate Atomic Energy, W. Harold Bigham

Vanderbilt Law Review

When the Congress adopted the Atomic Energy Act of 1954, releasing the atom from federal monopoly and inviting the division of regulatory and control functions between the federal government and the states, the gates were opened for large-scale participation by private industry in the new technology. It was natural, therefore, that the states should begin to view with awakened interest the role which they are to play in the development and regulation of this new source of energy. However amorphous the role of the states may be as yet, some preparation is being made to accept the responsibilities which will …

Radiation Protection Regulation: An Opportunity For Cooperative Federalism, Robert L. Hamilton, William A.W. Krebs, Jr.

Vanderbilt Law Review

The purpose of this article is to explore the question of how governmental responsibility for regulation of radiation hazards associated with atomic energy activities may best be allocated between the federal government and the states. While division of such responsibility is theoretically not essential--it being legally conceivable that the federal government could shoulder the entire responsibility alone or could leave it entirely to the states--various factors which will be mentioned below appear to make some sort of division of responsibility a practical necessity. To explore this question of division of responsibility, we shall first review the nature of radiation and …

Workmen's Compensation And Radiation Injury, Gerald L. Hutton

Vanderbilt Law Review

The utilitarian and research value of radioisotopes, x-ray and fluoroscopic devices, cyclotrons and other particle accelerators, nuclear reactors, and other materials or devices emitting ionizing radiation is unquestioned. Ionizing radiation, however, can prove harmful as well as beneficial depending upon the care which is exercised in its use. Numerous cases of x-ray and radium injuries are reported in the literature, such injuries dating from 1896 when Roentgen first announced the discovery of x-rays. The most publicized cases of radiation injury are those occurring in the radium poisoning or "dial painters" cases in the 1920's. Unlike most noxious materials encountered in …

Labor Relations In The Atomic Program, David B. Johnson

Vanderbilt Law Review

As in other areas of the United States program, the most pervasive influence in labor relations in atomic energy has been the federal government. The non-government sector is expanding rapidly in terms of the number of companies launching atomic energy operations, but this expansion is still in the exploratory and research and development stage. During this period of development in the private sector of the industry employers have relatively heavy need for engineering and technical skills and less for manual workers who are more susceptible to union organization. Although some problems for management and labor in the private sector of …

International Cooperation In The Peaceful Uses Of Atomic Energy, David F. Cavers

Vanderbilt Law Review

Today cooperation in the peaceful uses of atomic energy is occurring under bilateral agreements between the major atomic powers--the United States, the United Kingdom, and the Soviet Union--and many other nations. Schemes of cooperation on a regional basis are well advanced in Europe and are emerging elsewhere. A new international agency with an almost world-wide constituency, Communist China being the chief omission, has come into being. After a three-year interval, the second of two great international conferences for the exchange of knowledge concerning nuclear fission and thermonuclear fusion was held in Geneva in the past summer. At Geneva, American scientists …

Atomic Energy And World Trade, Aley Allan

Vanderbilt Law Review

In what follows an attempt is made first to arrive at an estimate of the pattern and the volume of trade in atomic equipment and services in the areas and for the period under discussion (1960-1970); and then a brief survey is attempted of the principal problems affecting this trade. Most of what is discussed is not the usual stuff of a legal periodical. But it will be apparent that a great deal of it has important implications for lawyers and lawyering. In any case one may be forgiven, perhaps, for trying to describe in skeletal form the context in …

Federal Support Of Domestic Atomic Power Development -- The Policy Issues, James L. Morrisson

Vanderbilt Law Review

The possibility that controlled nuclear fission could produce useful energy was recognized early in 1939. During World War II developmental effort was focused on production of the bomb. Since the war, the U. S. atomic power program has grown to substantial proportions.By June 30, 1958, there were in operation in the United States one full scale civilian power reactor and seven civilian power reactor experiments, with a total rated electrical capacity of over 77,000 kw, as well as a number of military propulsion reactors and reactor experiments. There are currently planned fourteen power reactors in addition to the one now …

The Legal Aspects Of The Development Of Atomic Energy In The United Kingdom, C. J. Highton

Vanderbilt Law Review

The United Kingdom Atomic Energy Authority was constituted as a public corporation in 1954 by the Atomic Energy Authority Act.' The Government had decided in the previous year that the atomic energy undertaking, then in the hands of the Minister of Supply, should be transferred to a non-departmental organization and a committee of three under the chairmanship of Lord Waverley had been appointed to devise a plan for the transfer and to work out the most suitable form for the new organization. The committee fulfilled their task with admirable clarity, but many legal problems arose in drafting the bill, which …