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Full-Text Articles in Law
The New(Clear?) Electricity Federalism: Federal Preemption Of States’ “Zero Emissions Credit” Programs, Joel Eisen
The New(Clear?) Electricity Federalism: Federal Preemption Of States’ “Zero Emissions Credit” Programs, Joel Eisen
Law Faculty Publications
This Article proposes and applies a “conscious disregard” test for resolving the upcoming appellate litigation that involves the conflict between federal authority over the electric grid and state laws providing subsidies to nuclear power plants in the form of “zero emissions credits” (ZECs). This test draws upon principles of conflict preemption, as elaborated in three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid under the Federal Power Act. It provides that if a state law explicitly aims to directly affect wholesale electricity market prices, terms or conditions, its subsidy program is impermissible …
Free Trade In Electric Power, Joel Eisen
Free Trade In Electric Power, Joel Eisen
Law Faculty Publications
This Article develops the core legal framework of a new electricity-trading ecosystem in which anyone, anytime, anywhere, can trade electricity in any amount with anyone else. The proliferation of solar and other distributed energy resources, business model innovation in the sharing economy, and climate change present enormous challenges — and opportunities — for America’s energy economy. But the electricity industry is ill equipped to adapt to and benefit from these transformative forces, with much of its physical infrastructure, regulatory institutions, and business models a relic of the early days of electrification. We suggest a systematic rethinking to usher in a …
Dual Electricity Federalism Is Dead, But How Dead And What Replaces It?, Joel B. Eisen
Dual Electricity Federalism Is Dead, But How Dead And What Replaces It?, Joel B. Eisen
Law Faculty Publications
The Supreme Court decided three cases in the past year involving the split of jurisdiction between the Federal Energy Regulatory Commission (FERC) and the states in the energy sector: FERC v. Electric Power Supply Association, Hughes v. Talen Energy Marketing and ONEOK v. Learjet. This Article concludes that these watershed decisions herald a new approach to governing the rapid evolution of the modern electric grid. Discussing the decisions, the analysis demonstrates that they mark the end of “dual federalism” in electricity law that treated federal and state regulators as operating within separate and distinct spheres of authority, and proposes that …
Ferc V. Epsa And The Path To A Cleaner Electricity Sector, Joel B. Eisen
Ferc V. Epsa And The Path To A Cleaner Electricity Sector, Joel B. Eisen
Law Faculty Publications
This article analyzes the impact of FERC v. Electric Power Supply Association, in which the Supreme Court upheld FERC’s demand response rule (Order 745) and confirmed FERC’s authority over “practices” “directly affecting” wholesale rates for electricity. It contends that the Supreme Court made a definitive pronouncement on FERC’s authority over end users of electricity who also provide resources back to the electric grid. It also contends that FERC v. EPSA marks the end of “dual federalism” in electricity law that treated federal and state jurisdiction as separate and distinct spheres of authority. Instead, it posits a new era of concurrent …
Who Regulates The Smart Grid?: Ferc's Authority Over Demand Response Compensation In Wholesale Electricity Markets., Joel B. Eisen
Who Regulates The Smart Grid?: Ferc's Authority Over Demand Response Compensation In Wholesale Electricity Markets., Joel B. Eisen
Law Faculty Publications
This Article argues that Order 745 is both justified under the Federal Power Act (FPA) and important to ensure the transition to a clean energy future. A challenge to Order 745, Electric Power Supply Association v. FERC, is currently pending in the D.C. Circuit. This Article contends that Order 745 should be upheld against this challenge because it fits within FERC's broad authority to regulate the wholesale power markets.
Smart Regulation And Federalism For The Smart Grid, Joel B. Eisen
Smart Regulation And Federalism For The Smart Grid, Joel B. Eisen
Law Faculty Publications
This Article examines the “Smart Grid,” a set of concepts, technologies, and operating practices that may transform America’s electric grid as much as the Internet has done, redefining every aspect of electricity generation, distribution, and use. While the Smart Grid’s promise is great, this Article examines numerous key barriers to its development, including early stage resistance, a lack of incentives for consumers, and the adverse impacts of the federal-state tension in energy regulation. Overcoming these barriers requires both new technologies and transformative regulatory change, beginning with the development of a foundation of interoperability standards (rules of the road governing interactions …
Can Urban Solar Become A "Disruptive" Technology?: The Case For Solar Utilities, Joel B. Eisen
Can Urban Solar Become A "Disruptive" Technology?: The Case For Solar Utilities, Joel B. Eisen
Law Faculty Publications
After examining the theory of disruptiveness and the inadequacy of current initiatives for renewables, I argue for a disruptive solution to solar. Achieving the kind of deployment that would be required to make a serious down payment on our climate obligations will take something far different than we have seen to date: companies devoted to national (or at least regional), large-scale installations of solar technology, and which are deeply capitalized and willing to take risks to bring solar to many homeowners. I will term these "solar utilities,'' and I propose that one or more of them should take over the …
The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen
The Environmental Responsibility Of The Regionalizing Electric Utility Industry, Joel B. Eisen
Law Faculty Publications
In this Article, I will address environmental issues in the context of our rapidly evolving understanding of "restructuring." The market for electricity is fast becoming a series of regional marketplaces for wholesale transactions, operating on bid-based systems that move power at the lowest cost. There are plenty of states where power is still delivered as it has been for decades: by "bundled" service provided by vertically integrated utilities. However, the trend is toward regionalization, where independent entities control the transmission grid and play a major role in determining how power is delivered. These market participants, confusingly, have been known by …
The Blackout Of 2003: What Is Next?, Joel B. Eisen
The Blackout Of 2003: What Is Next?, Joel B. Eisen
Law Faculty Publications
The blackout of August 2003 was a massive dislocation of American life, with millions of people in eight states and Canada losing power and a cost estimated in billions of dollars. As many as fifty million people were affected by the blackout. While the ultimate cause of the blackout is still being investigated, the implications for national policy may not be fully known for decades. The blackout was a wake up call and a watershed event that calls for reevaluation of just about every facet of the electric utility industry. We tend to think of a "wakeup call" as something …