Law Commons^™

Constrained Regulatory Exit In Energy Law, Jim Rossi

Vanderbilt Law School Faculty Publications

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …

Ferc V. Epsa, Jim Rossi, Jon Wellinghoff

Vanderbilt Law School Faculty Publications

This Essay explores the implications of the U.S. Supreme Court's decision in FERC .v. EPSA for state regulation of customer energy resource initiatives, such as net metering policies for rooftop solar and energy storage programs. Unlike many past judicial decision that fixate on a jurisdictional "bright line," EPSA does not define a turf for state policymaking as beyond FERC's reach but instead recognizes how state policies operate adjacent to FERC's regulation of practices affecting wholesale rates. As the first Supreme Court case to explicitly recognize cooperative federalism programs in the regulation of modern energy markets under the FPA, ESPA is …

"Maladaptive" Federalism: The Structural Barriers To Coordination Of State Sustainability Initiatives, Jim Rossi

Vanderbilt Law School Faculty Publications

While the federal government has been slow to address problems such as climate change, many states have adopted innovative approaches to address the climate impact of using natural resources to produce energy, including aggressive approaches to regulating carbon emissions and renewable and clean energy standards. This Article identifies an emerging challenge that subnational regulation faces in the energy and environmental context -- what I will call maladaptive federalism -- and argues that federalism discussions need to account for its possibility. Part I highlights adaptive regulation as a form of federalism, echoing a vision for subnational regulation many federalism scholars and …

General Design Principles For Resilience And Adaptive Capacity In Legal Systems--With Applications To Climate Change Adaptation, J.B. Ruhl

Vanderbilt Law School Faculty Publications

No force has put more pressure on the legal system than is likely to be exerted as climate change begins to disrupt the settled expectations of humans. Demands on the legal system will be intense and long-term, but is the law up to the task? If it is, it will at least in part be because the legal system proves to be resilient and adaptive. The question this Article explores, therefore, is how to think about designing legal instruments and institutions now with confidence they will be resilient and adaptive to looming problems as massive, variable, and long-term in scale …

Venue For Offshore Environmental Crimes: The Seaward Limits Of The Federal Judicial Districts, M. Benjamin Cowan

Vanderbilt Law Review

Consider the following scenario: USA Oil, an American company incorporated in Delaware with its principal place of business in California, has been conducting ongoing oil drilling operations in the Gulf of Mexico. The company operates three oil platforms off the Texas coast. One is located two miles offshore, another six miles offshore, and the third ten miles offshore.

Federal authorities receive notice that on several occasions since the company began operating these rigs, it deliberately allowed large quantities of oil to leak into the Gulf from each of them. The government seeks to indict USA Oil on three counts of …

Environmental Policy And Federal Structure: A Comparison Of The United States And Germany, Susan Rose-Acherman

Vanderbilt Law Review

The assignment of tasks to the appropriate level of government is an important aspect of environmental policy design. Because the costs and benefits of pollution control policies are closely tied to geography, political solutions should reflect the underlying spatial structure of environmental problems. These solutions should not only incorporate the long-distance effects of air and water pollution, but also account for the mobility of economic actors and the resource base of governments.

There are three general types of environmental problems. Global issues have no complex geographical component. Regional problems arise when political boundaries do not coincide with the pollution's geographical …