Environmental Law Commons^™

V. 14, 2023 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Hot August Nights: California’S Quest For Resource Adequacy Solutions To Promote Integration Of Renewables And Energy Storage In The Midst Of Climate Change-Related Challenges To Reliability, Noelle R. Formosa

San Diego Journal of Climate & Energy Law

This Article focuses on the CPUC RA program’s role in helping to keep the lights (and air conditioning) on while advancing California’s continued mission to decarbonize the grid, even in the face of extreme climate-change induced weather events. It explains how the existing RA program creates risks of overestimating the availability of some capacity, including solar, wind, and energy storage resources, to meet demand in the increasingly critical evening hours. These risks are attributable to the program’s original design, which assumed that all resources will be available to meet load in all hours. This Article outlines the major CPUC regulatory …

Can Local Governments Exercise Police Power To Combat Climate Change Impacts By Banning Natural Gas In New Buildings?, Yichao Gu

San Diego Journal of Climate & Energy Law

This Article analyzes whether the Berkeley Gas Ban Ordinance would survive federal or state preemption challenges and examines whether Berkeley properly exercised its police power in adopting the Gas Ban Ordinance. Section II of this article provides background on the air quality and climate change impact from natural gas combustion. Section III discusses Berkeley’s police power authority to adopt the Gas Ban Ordinance. Sections IV through VI present potential express and implied preemption challenges and analyze arguments on both sides. Section VII concludes that the Gas Ban Ordinance is likely to survive federal and state express preemption, but it may …

State Sequestration: Federal Policy Accelerates Carbon Storage, But Leaves Full Climate, Equity Protections To States, Gabriel Pacyniak

San Diego Journal of Climate & Energy Law

The Intergovernmental Panel on Climate Change—the UN’s expert science panel—has found that limiting climate change to prevent catastrophic harms will require at least some use of carbon capture and sequestration (CCS) unless the world rapidly shifts away from fossil fuels and reduces energy demand. There is significant uncertainty, however, about the level of lifecycle GHG reductions achievable in practice from varying CCS applications; some applications could even lead to net increases in emissions. In addition, a number of these applications create or maintain other harms, especially those related to fossil fuel extraction and use. For these reasons, many environmental justice …

Carbon Capture And Storage: Models For Compensating Holdout Landowners, Keith B. Hall

San Diego Journal of Climate & Energy Law

The United Nations Intergovernmental Panel on Climate Change and numerous individual governments have concluded that largescale use of carbon capture and storage (CCS) is vital as one tool to address climate change, even as society transitions to renewable sources of energy. CCS is important because transitioning to renewable sources of energy takes time and because some industries (e.g., cement making) release carbon dioxide (CO₂) without regard to the source of energy used.

But in the United States, and perhaps in other countries, CCS raises property rights issues that—if left unresolved—could complicate a ramp-up of CCS. For …

Climate Change And Real Estate In California: Can Climate-Related Risk Be A Required Disclosure For Residential Real Estate?, Lindsey Jacques

San Diego Journal of Climate & Energy Law

This Article will examine whether liability can extend to residential real estate sellers for non-disclosure of climate change related risk. First, this Article will outline current California statutes and common law regarding disclosures of climate change risk to prospective buyers of real estate. Next, this Article will explore potential routes for expanding liability, then will follow with hypotheticals for specific types of climate-related risk. This Article concludes by considering likely outcomes and routes for sellers and their agents to evade such liability should an expansion of liability prove legitimate.

The Long And Winding Road To Carbon Neutrality: Can California’S Zero Emission Vehicle Survive The Twists And Turns Of The Legal System?, Erin Hudak

San Diego Journal of Climate & Energy Law

The effects of climate change are becoming more and more obvious every year, evidenced by extreme weather events, rising sea levels, and increased global temperature. In an effort to mitigate the damage caused by greenhouse gases, California Governor Gavin Newsom announced a goal to have all new passenger vehicles sold in California be Zero-Emission Vehicles (“ZEVs”) by 2035. This Article explores the possible legal issues that California’s ZEV mandate faces now and may face in the future. First, California will likely face a federal preemption challenge under the Clean Air Act. Second, the California Air Resources Board’s authority to mandate …

On The Hook-Can The Commercial Fishing Industry Hold Big Oil Accountable For Climate Change?, Matthew K. Bowen

San Diego Journal of Climate & Energy Law

In 2018, The Pacific Coast Federation of Fishermen’s Associations (“the Federation”) sued several oil companies over these domoic-acid-related closures during the Dungeness crab fishing season. The Federation alleges the underlying reason for the closures is climate change, which brought warmer seas (and, in turn, algae blooms that release domoic acid) because of greenhouse gas emissions. The Federation is pursuing legal action in response to the economic harms its members have faced from the fishing season closures. In a 2018 article from NPR, Mr. Oppenheim (quoted above) stated that the 2015 to 2016 crab fishing closure caused some boats to leave …

Decarceration With Decarbonization: Renewable Rikers And The Transition To Clean Power, Rebecca Bratspies

San Diego Journal of Climate & Energy Law

This Article offers New York City’s Renewable Rikers project as an example of how this might be done, and how communities might combine decarbonization with decarceration in order to build a more just and sustainable society. By putting racial justice and overburdened communities at the center of building a clean energy grid, Renewable Rikers offers a model for genuine and transformative change that confronts root causes of inequality and builds a better, fairer city. It does so by tying electrification and land use decisions to equity concerns, and by facilitating meaningful community involvement in these infrastructure decisions. In this fashion, …

Will The Border Water Quality Restoration And Protection Act Of 2020 Be Enough To Flush The Tijuana River Valley Water Pollution Crisis Down The Drain?, Kyle A. Rudolph

San Diego Journal of Climate & Energy Law

This Article reviews the complex and decades-long wastewater pollution crisis occurring in the Tijuana River Valley, its legislative history, and whether the Water Quality Restoration and Protection Act of 2020 would flush the Tijuana River Valley water pollution crisis down the drain in light of the promulgation of the USMCA.

V. 13, 2022 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Fact Or Doctrine? Inconsistencies In The Application Of The Dormant Commerce Clause's Extraterritoriality Principle To Challenges To State Climate Change Prevention Policies, Kelsey Gagnon

San Diego Journal of Climate & Energy Law

The “dormant” Commerce Clause’s prohibition on extraterritorial regulation has tested state efforts to battle greenhouse gas-induced climate change using clean energy policies. This is partly due to the structure of the North American power grid. Simply put, the electricity generated by an in-state power facility might be consumed by any other state connected to that same interconnection during normal operations. This cross-border flow, sale, and consumption of electricity places the grid within the regulatory grasp of the United States Constitution’s Commerce Clause. Congress therefore has authority to regulate the interstate electricity market. The Supreme Court has also interpreted an implicit …

How Virtual Powers Plants Can Advance Electrification And Mitigate Infrastructure Needs As We Race To Meet Our Climate Challenges, Kevin B. Jones Phd, Mary Franco, Kim Mashke, Sarah A. Pardee

San Diego Journal of Climate & Energy Law

This paper explores three contemporary case studies of how distributed energy resources have been aggregated into Virtual Power Plants (VPPs) to provide resilient, low carbon solutions for our climate challenge in a manner that can mitigate demands on our energy infrastructure. These recent case studies will analyze distributed energy resources and how they can be aggregated to participate in wholesale electric markets to reduce the demand for larger utility scale resources while also providing grid services locally. These case studies build on previous research on distributed energy resources we have performed at our Institute for Energy and the Environment. The …

Hydropower's Promise: The Opportunities And Challenges Of Hydropower For Mitigating Climate-Driven Scarcity, Lauren Perkins, Sylwia Dakowicz, Ellen Hill, Peter Kissel, Sean Neal

San Diego Journal of Climate & Energy Law

This Article examines hydroelectric resources’ ability to assist states throughout the West and across the country in meeting their statutory and policy goals of reduced or zero carbon emissions, while maintaining reliability. Extreme weather events, and associated costs, are not isolated to the Western Interconnection, but rather increasingly impact other regions and their end-use customers. In its 2021 U.S. Hydropower Market Report, the Department of Energy (DOE) noted that, in nearly every Balancing Authority Area assessed, hydropower was more extensively used for hourly ramping flexibility than any other resource. Additional services hydroelectric resources provide, including storage capacity and black start …

Nevada's Energy Choice Initiative: A Case Study Of Deregulation, The Dormant Commerce Clause, And Energy Federalism, Joel A. Kaufmann

San Diego Journal of Climate & Energy Law

The fight over “Energy Choice” or “retail electricity market deregulation” in Nevada demonstrated a disagreement about how to structure electricity markets, economic consequences in the billions of dollars, and thorny legal doctrines like the Dormant Commerce Clause and dual sovereignty. The Energy Choice Initiative was the first attempt to deregulate a state’s retail electricity market by ballot initiative and the first include a right to “Energy Choice.” The Energy Choice Initiative is one example of the growing interest in retail customer choice or “Energy Choice” across the country. In the past two years, Virginia and Arizona considered retail customer choice …

Behind The Concrete Curtain: Acknowledging And Curbing Greenhouse Gas Emissions From Hydroelectric Facilities And River Impoundments, Joseph A. Welsh

San Diego Journal of Climate & Energy Law

From its early use as kinetic power to kick start the industrial revolution, a consensus emerged that hydroelectric power is clean, renewable, and reliable. In contemporary parlance it is universally classified as either “carbon free” or “low-carbon.” The history of hydropower in the United States supports this belief, and its use has rarely been scrutinized. However, an emerging consensus indicates scrutiny is necessary (for hydroelectric power and other energy sources avoiding acute assessment) given the challenges foisted upon us by anthropogenic climate change.

This Article will put the standard hydropower consensus to task and analyze whether it holds water as …

Panel Discussion: Energy Resilience And Deep Decarbonization, Miguel Romero

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Insights On Electrification And Energy Resilience, Tony Clark

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Decarbonization With Decarceration: Renewable Rikers And The Transition To Clean Power, Rebecca Bratspies

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Fact Or Doctrine? Inconsistencies In The Application Of The Dormant Commerce Clause’S Extraterritoriality Principle To Challenges To State Climate Change Prevention Policies, Kelsey Gagnon

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Keynote: Decarbonizing The Electricity Sector, Siva Gunda

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Energy Resilience And Extreme Weather Events, Alice Reynolds

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Hydropower’S Promise: The Opportunities And Challenges Of Hydropower For Mitigating Climate-Driven Scarcity, Lauren Perkins

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Virtual Power Plants And The Climate Challenge, Kevin B. Jones

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Panel Discussion: Extreme Weather Events In The Changing Climate Of California, Alexander Gershunov

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

Keynote: Climate Adaptation, Darcie Houck, Andrew Mcallister

Lesley K. McAllister Symposium on Climate and Energy Law

No abstract provided.

V. 12, 2021 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

Holding Polluters Accountable In Times Of Climate And Covid Risk: The Problems With “Emergency” Enforcement Waivers, Victor B. Flatt

San Diego Journal of Climate & Energy Law

One of the first actions of the Environmental Protection Agency after the declaration of the COVID-19 crisis in mid-March 2020 was to announce that it would relax its enforcement policies with respect to environmental reporting and violations during the time of the pandemic. Ostensibly this was to ensure that regulated entities were not penalized by their inability to have inspectors on the front lines to ensure that substantive permit and monitoring requirements were followed. Taking their lead from the EPA, many states announced that they were following suit.

EPA always has discretion in terms of enforcement, but in making a …

The World After Teitiota: What The Hrc Decision Means For The Future Of Climate Migration, Lucia Rose

San Diego Journal of Climate & Energy Law

The effects of global climate change is forecasted to cause millions of people to leave their homes and home countries over the next century. Until this point, the current legal framework for determining the fate and protection of people feeling their homes due to emergency was rooted in the United Nations (“UN”) Refugee Convention of 1951 and has been read to exclude those whose primary reason for migration is the effects or threat of climate change. However, the UN Human Rights Committee’s (HRC) January 2020 decision regarding Ioane Teitiota’s deportation to his home nation of the Republic of Kiribati suggests …

Carb V. Climate Change: Regulating California’S Land Use Regime To Reduce Transportation Emissions, William C. Shepherd Iv

San Diego Journal of Climate & Energy Law

California is currently facing two massive problems: climate change and affordable housing. The issues of affordable housing and greenhouse gas emissions intersect in the instance of vehicle miles traveled – the amount of miles driven by Californians in a given amount of time. Local governments have continuously excluded high density housing developments and contributed to rapidly increasing housing costs. As a result, many Californians must travel far distances between work and home. Increased vehicle miles traveled results in increased greenhouse gas emissions. Because local control has contributed to these problems, state regulation of vehicle miles traveled is needed to combat …