Energy and Utilities Law Commons^™

Evolving Legal Conceptions Of “Energy Communities”, Uma Outka

University of Miami Law Review

The concept of “energy communities” has had long-standing and evolving significance in the United States and in other countries around the world. Under the Biden Administration, the term “energy communities” has acquired new legal meanings that differ by context and continue to evolve. This Article traces the shifting meaning of “energy communities” and examines how it relates to other dominant references to “communities” in the context of energy law and policy, including environmental justice, low-income, underserved, and disadvantaged communities, as well as newer community-scale energy system innovations, such as community solar or “advanced energy communities.” International comparisons, such as with …

The Future Of Crypto-Asset Mining: The Inflation Reduction Act And The Need For Uniform Federal Regulation, Liz Guinan

Sustainable Development Law & Policy

Crypto-asset mining is energy-intensive and environmentally harmful, presenting challenges and opportunities for federal, state and local governments, regulators, and society as a whole. As of December 2021, the United States has thirty-eight percent of the global crypto network hash rate, which is the total amount of computational power used to mine and process crypto transactions, making the United States the world’s largest crypto-asset mining industry. The total electricity consumption of crypto-asset mining in the United States is estimated to be around 121.36 terawatt-hours (“TWh”) per year, which is equivalent to the electricity consumption of approximately 10.9 million households in the …

The Case Against Regional Transmission Monopolies, Kristen Van De Biezendos

Faculty Scholarship

Over the next decade, the United States will need to build significant regional transmission infrastructure to achieve the country’s goal of net-zero power by 2035. However, there is a significant barrier: the transmission system is almost entirely owned by private monopolies. As a result, the grid has grown not to serve the public interest but in accordance with the economic priorities of these monopolies, which are not incentivized to innovate, find efficiencies, or lower costs. Past attempts to encourage competitive bidding for regional transmission projects have been stymied by laws intended to protect the monopolies, including the right of first …

Building The Future Of Energy Supply Chains In North America, Martha Hall Findlay, Pete Sheffield, Heather Ferguson, J.B. Chronister, Gary Sutherland

Canada-United States Law Journal

No abstract provided.

The Trouble With Farmouts: The Problem Of The Innocent, Nonperforming Farmee, Benjamin Idzik

Catholic University Law Review

The oil market is a volatile universe. The price of the commodity has a profound impact both on the national and global economies and on the lives of everyday consumers. Consider the high prices of 2022 compared with the record lows seen in 2020, the price of oil affects almost everything. The United States is one of the top oil producing nations in the world. The size and importance of the industry has led to a somewhat unique area of the legal practice known as oil and gas law. Among its many tenants is an instrument known as a farmout …

How Environmental Litigation Has Turned Pipelines Into Pipe Dreams, Madison Hinkle, Jesse J. Richardson

Law Faculty Scholarship

Proposed oil and gas pipelines have faced a myriad of legal challenges in the past several years. Even where pipeline proponents have prevailed, the cost and delay of protracted litigation has often caused cancellation of pipeline projects. In addition, presidential transitions have led to abrupt reversals of pipeline policies, which courts have often reviewed skeptically. This Article explores the regulatory framework for pipeline construction and analyzes recent lawsuits, describing the legal requirements that agencies must follow to change policies and discussing policies of the Obama and Trump Administrations in context of the legal challenges. It concludes by analyzing the approaches …

Sacrificing The Salmon: A Legal History Of The Decline Of Columbia Basin Salmon (Full Text Part 2 Of 2), Michael Blumm

Books & Contributions to Books

Salmon remain the cultural and economic soul of the Pacific Northwest, a species whose very life cycle largely defines the region. At the center of the salmon region lies the Columbia River, which once supported the world's largest salmon runs and which now is home to the world's largest interconnected hydroelectric system. These massive federal and non-federal dams have devastated Columbia Basin salmon runs, some of which are now extinct, others are on life-support.

This book tells the story of the decline of the Columbia Basin salmon in the 20th century. But it begins earlier, with the signing of mid-19th …

Deep In The Heart Of North America: Texas And The Future Of North American Energy Trade, Guillermo J. Garcia Sanchez, James W. Coleman

Mission Foods Texas-Mexico Center Research

Texas, the heart of North American energy markets, has recently emerged from history’s biggest oil boom, and is becoming the crossroads for an increasingly two-way trade in oil and gas. Texas and Mexico, in particular have much to gain from expanded energy trade. This report shows how energy law changes in the U.S. and Mexico present under-studied dangers to cross-border energy trade and will set an agenda for legal reform to enable mutually beneficial fuel and power trade.

Contested Places, Utility Pole Spaces: A Competition And Safety Framework For Analyzing Utility Pole Association Rules, Roles, And Risks, Catherine J.K. Sandoval

Catholic University Law Review

As climate change augurs longer wildfire seasons, safe, reliable, and competitive energy and communications markets depend on sound infrastructure and well-calibrated regulation. The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service, forms the twenty-first century’s technological scaffold. Utility poles are increasingly contested places where competition, safety, and reliability meet. Yet, regulators and academics have largely overlooked the risks posed by century-old private utility pole associations in California, composed of private and public utility pole owners and some entities who attach facilities to utility poles. No academic articles have examined the rules, roles, and risks …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

Faculty Publications

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies …

The Bounds Of Energy Law, Shelley Welton

Faculty Publications

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

Rethinking Grid Governance For The Climate Change Era, Shelley Welton

All Faculty Scholarship

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies …

The Bounds Of Energy Law, Shelley Welton

All Faculty Scholarship

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil …

Mtsun, Llc V. Mont. Dep't Of Pub. Serv. Regulation, Ryan W. Frank

Public Land & Resources Law Review

MTSUN, LLC initiated negotiations for a power purchase agreement with NorthWestern Energy in September of 2015 for a potential solar energy facility in eastern Montana. In December of 2016, at an impasse in contract negotiations with NorthWestern, MTSUN filed a petition with the Montana Public Service Commission requesting that the agency exercise its statutory authority to set the terms of the contract for the proposed project. Following MTSUN’s petition, the PSC issued a series of orders and reconsiderations which ultimately reconfigured the entirety of the agreement, including the terms that the parties had previously agreed upon. After exhausting its administrative …

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 …

Energy Emergencies, Amy L. Stein

UF Law Faculty Publications

Emergency powers are essential to the proper functioning of the government. Emergencies demand swift and decisive action; yet, our system of government also values deliberation and procedures. To enable such agility in a system fraught with bureaucracy, Congress frequently delegates unilateral statutory emergency powers directly to its most nimble actor: the President. The powers Congress delegates to the President are vast and varied, and often sacrifice procedural requirements in favor of expediency. Most scholars and policymakers have come to terms with this tradeoff, assuming that the need to respond quickly is outweighed by any loss of accountability. This Article challenges …

Energy Re-Investment, Hari M. Osofsky, Jacqueline Peel, Brett H. Mcdonnell, Anita Foerster

Journal Articles

Despite worsening climate change threats, investment in energy — in the United States and globally — is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment.

The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump …

The Statutory Separation Of Powers, Sharon B. Jacobs

Publications

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

Energy And Eminent Domain, James W. Coleman, Alexandra B. Klass

Faculty Journal Articles and Book Chapters

This Article examines the growing opposition to the use of eminent domain for energy transport projects such as oil pipelines, gas pipelines, and electric transmission lines. Such projects were protected from the state legislative reforms that restricted eminent domain following the Supreme Court’s controversial decision in Kelo v. City of New London in 2005 but are now under increased scrutiny. This Article evaluates why U.S. energy transport projects have become so controversial and suggests how states and the federal government should evaluate the need for eminent domain for these projects and enact appropriate reforms. We first detail the significant changes …

Grasping For Energy Democracy, Shelley Welton

All Faculty Scholarship

Until recently, energy law has attracted relatively little citizen participation. Instead, Americans have preferred to leave matters of energy governance to expert bureaucrats. But the imperative to respond to climate change presents energy regulators with difficult choices over what our future energy sources should be, and how quickly we should transition to them—choices that are outside traditional regulatory expertise. For example, there are currently robust nationwide debates over what role new nuclear power plants and hydraulically fractured natural gas should play in our energy mix, and over how to maintain affordable energy for all while rewarding those who choose to …

Carbon Taxation By Regulation, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that, even though a carbon tax remains politically elusive, a carbon taxation by regulation has begun to flourish as a way of financing carbon reduction. For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general financial taxation. Various non-tax subsidies in customer energy rates have enormous untapped potential for promoting low-carbon sources of energy, while also balancing broader economic and social welfare goals. While carbon taxation by regulation offers many benefits, regulators' narrow fixation on consumer protection and economic goals has hobbled realization of its potential. …

Appliance Efficiency, David R. Hodas

David R. Hodas

In Defense Of Ecosystem Services, J.B. Ruhl

Vanderbilt Law School Faculty Publications

The path of ecosystem services as a theme in environmental law and policy spans my practice (1982-1994) and academic (1994-present) careers. The importance of nature to human well-being seems so obvious one would think it has been front and center in environmental law and policy since the beginning, but, until recently, that has not been the case. Lately, however, the ecosystem services framework has catapulted this theme into prominence, if not dominance, in environmental discourse.

Accidents Of Federalism: Ratemaking And Policy Innovation In Public Utility Law, William Boyd, Ann E. Carlson

Publications

Decarbonizing the electric power sector will be central to any serious effort to fight climate change. Many observers have suggested that the congressional failure to enact a uniform system of electricity regulation could stifle the transition to a low-carbon electricity grid. This Article contends that the critique is overstated. In fact, innovation is occurring across different aspects of the electricity system and across different types of states in ways one would not expect to see under a single, national approach. As the Article demonstrates, this innovation stems in part from Congress’s failure to enact a single, national approach to electricity …

Riio To Rev: What U.S. Power Reform Should Learn From The U.K., Heather Payne

Pace Law Review

After discussing the recent history of and need for regulatory reform in the U.K., this article will summarize the RIIO framework and analyze the three parts best suited for import into the regulatory frameworks of American states. Specifically, the article will evaluate how a performance-based framework with (1) longer rate cases, (2) proportionate assessment, and (3) a focus on total expenditures limiting regulatory asset value, should positively influence the U.S. regulatory landscape. While RIIO is only used for transmission and distribution in the U.K., there is a potential for its performance-based approach to be used in generation as well as …

Regulating Pot To Save The Polar Bear: Energy And Climate Impacts Of The Marijuana Industry, Gina Warren

Gina Warren

No abstract provided.

Slides: The Columbia River Treaty, Barbara Cosens

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Barbara Cosens, Professor, University of Idaho College of Law and Waters of the West Graduate Program

22 slides

Advancing Climate Justice In International Law: Evaluating The United Nations Human Rights Based Approach, Dr. Damilola S. Olawuyi

Environmental and Animal Law

The Florida Agricultural & Mechanical University College of Law's Center for International Law & Justice and the Environment, Development & Justice Program presented the First Annual Climate and Energy Justice Lecture featuring Dr. Damilola S. Olawuyi. Dr. Olawuyi teaches and conducts research in the area of public international law, specializing in natural resources, energy and environment, oil and gas law and international human rights law.

Promoting The Sustainability Of Biofuels In America: Looking To Brazil, Julia Johnson

Julia Johnson

This article explores the reasons why previous attempts at biofuels legislation in the United States have not been successful and focuses upon market-level incentives that drive consumer willingness to purchase biofuels. For the U.S.’s biofuels policies to be more effective, the nation must better employ consumer-side factors and devise policies around promoting biofuels’ ability to compete with conventional fuels. Consumer-side factors include biofuels’ accessibility and pricing, as well as the ease and attractiveness of purchasing alternative energy-powered vehicles. The U.S.’s initiatives have also neither been aggressive enough, nor sufficiently comprehensive, to enable the U.S. to mirror Brazil’s success.

This article …

Brief For Federal Energy Regulatory Commission As Amici Curiae Of Energy Law Scholars Supporting Petitioners, Joel Eisen

Law Faculty Publications

Amici curiae are law professors who have significant research and teaching experience in the field of energy law, with a particular focus on electric power markets. They are listed in the Appendix to this brief. They are submitting this brief because they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that the Federal Energy Regulatory Commission (FERC) lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets.