Law Commons^™

Reconsidering Regulatory Uncertainty: Making A Case For Energy Storage, Amy L. Stein

Amy L. Stein

This Article begins the complex dialogue that must take place to address the emerging technologies providing energy storage for our electricity grid. Energy storage has the capacity to be a game-changer for many facets of our grid, providing better integration of renewable energy, enhanced reliability, and reduced use of carbon-intensive fuels. Energy storage faces a number of obstacles, however, including technological, financial, and regulatory uncertainty. This Article focuses on the regulatory uncertainty, and defends the proposition that not all regulatory uncertainty is created equal. It argues for differential treatment of this uncertainty, depending on its context, scope, and source, and …

The Tipping Point Of Federalism, Amy L. Stein

Amy L. Stein

As the Supreme Court has noted, “it is difficult to conceive of a more basic element of interstate commerce than electric energy, a product that is used in virtually every home and every commercial or manufacturing facility. No state relies solely on its own resources in this respect.” And yet, the resources used to generate this electricity (e.g., coal, natural gas, or renewables) are determined largely by state and local authorities through their exclusive authority to determine whether to approve construction of a new electricity generation facility. As the nation finds itself faced with important decisions that directly implicate the …

Renewable Energy Through Agency Action, Amy L. Stein

Amy L. Stein

Despite the many societal benefits associated with renewable energy, it is used to generate only about 5 percent of our nation's electricity needs. The bulk of governmental efforts to rectify this situation have disproportionately impacted private actors. This Article argues that the federal government should expand its efforts to more fully capture the gains that can be achieved by targeting both private and public actors, particularly federal agencies. Federal agencies have enormous purchasing power that can be channeled toward using electricity and fuels derived from renewable energy. Federal agencies are some of the largest consumers of electricity. Federal agencies manage …

Beyond Yucca Mountain: Split Liability Drives Action For Interim Nuclear Waste Storage, Amy L. Stein

Amy L. Stein

After fifteen years and six billion dollars, the United States still lacks a viable long-term solution to the mounting levels of high-level nuclear waste scattered across the nation in 68 sites. The Nuclear Waste Policy Act of 1982 (“NWPA”) and its 1987 Amendments have driven regulators to approve Yucca Mountain, Nevada, for burial of the 37,000 metric tons of nuclear waste in need of a final resting place. In the NWPA, Congress set January 31, 1998 as the deadline by which the Department of Energy (“DOE”) was to dispose of the utilities' nuclear waste. However, litigation challenges, scientific uncertainty, and …

Federalism And The Rise Of Renewable Energy: Preserving State And Local Voices In The Green Energy Revolution, Daniel Lyons

Daniel Lyons

The rise of renewable energy has disrupted the traditional regulatory structure governing electricity. Unlike traditional fossil fuel power plants, wind and solar facilities are geographically constrained: they exist where the wind blows and the sun shines. Large-scale renewable energy is more likely to flow interstate, from resource-rich prairie and Southwestern states to energy-hungry population centers elsewhere. The difficulties of coordinating interstate electricity policies have led some to call for greater preemption of the states’ traditional duties as chief regulators of the electricity industry. But while preemption would eliminate some state-level roadblocks to interstate cooperation, it would sacrifice many of the …

Applying Administrative Law Principles To Hydraulic Fracturing, Joel M. Pratt

Joel M Pratt

Because fracking regulators and industry need both legal clarity and the ability to react to new information, courts should apply principles of administrative deference to resolve conflicts between state and local fracking regulations.Under these principles, courts weigh expert agency decision making more heavily when the agency has acted reasonably. When faced with a conflict between state and local fracking laws, courts should adopt administrative principles and privilege expert agency regulations rather than engage in an independent judicial inquiry. Part I provides background on fracking and argues that states are in the best position to regulate the practice. Part II then …

Sustaining An Unsustainable Fuel Source: How Lifecycle Greenhouse Gas Limitations Can Improve The Sustainability Of The Tar Oil Industry, Brittany Debord

Brittany DeBord

The United States seeks to achieve energy security and self-sufficiency by acquiring energy from Canadian tar sands and promoting a domestic tar sands industry. However, support for this industry is inconsistent with the greenhouse gas reduction policies of the Energy Independence and Security Act and the North American Agreement on Environmental Cooperation, since tar oil extraction creates three times more carbon emissions than conventional oil extraction. Legislation limiting lifecycle greenhouse gas emissions has already been implemented through the Renewable Fuel Standard Program in response to concerns that plant-based fuel production leads to greater carbon emissions than intended. Since the lifecycle …

The Rise And Rise Of The One Percent: Getting To Thomas Piketty's Wealth Dystopia, Shi-Ling Hsu

Shi-Ling Hsu

Thomas Piketty's Capital in the Twenty-first Century, which is surely one of the very few economics treatises ever to be a best-seller, has parachuted into an intensely emotional and deeply divisive American debate: the problem of inequality in the United States. Piketty's core argument is that throughout history, the rate of return on private capital has usually exceeded the rate of economic growth, expressed by Piketty as the relation r > g. If true, this relation means that the wealthy class – who are the predominant owners of capital – will grow their wealth faster than economies grow, which …

Avoiding The Road To Ferc-Dom: The Supreme Court Affirms The Right To Contract In Morgan Stanley V. Snohomish, Jorge A. Mestre

Jorge A Mestre

No abstract provided.

Renewable Energy: Where We Are Now And How Renewable Energy Investment And Development Can Be Expanded, Kevin M. Walsh

Kevin M Walsh

The renewable energy field is currently stifled because many renewable energy developments require tax equity investors to provide additional funds to get the project off the ground and running. The Code provides tax credits to incentivize investors to invest. Currently, the Investment Tax Credit (“ITC”) is the only available credit left for renewable projects placed in service from 2014 on. Tax credits are a step in the right direction to encourage renewable investment; however, the credits are limited in application mostly to large financial institutions. Moreover, investments into one specific renewable energy project can be risky because there is no …

"Solar Reits": A New Tax Paradigm For Renewable Energy Financing, Richard A. Grisel

Richard A Grisel

The demand for renewable energy has never been higher. Regrettably, however, current financing methods and administrative programs have been inadequate to produce the necessary and sufficient market conditions to meet this demand.

One key to accessing lower cost capital—which in turn will help fill ever-increasing demand for renewable energy—is to move away from reliance on tax credits and tax equity financing models and attract a broader investor pool. Real estate investment trusts (REITs) have historically been a proven, effective capital-raising vehicle for various capital-intensive projects, such as buildings, transmission lines, and communication towers. Essentially, REITs are financial vehicles that allow …

Drones, Henry H. Perritt Jr., Eliot O. Sprague

Henry H. Perritt, Jr.

Facts, Fiction, And Perception In Hydraulic Fracturing: Illuminating Act 13 And Robinson Township V. Commonwealth Of Pennsylvania, Joshua P. Fershee

Joshua P Fershee

Hydraulic fracturing for oil and natural gas is perhaps the most polarizing energy issue in the United States and around the world, and Pennsylvania has emerged as an example of passionate views both for and against hydraulic fracturing for shale gas. To limit local government restrictions on gas drilling, the Pennsylvania legislature passed Act 13 in September 2012, and the Act largely eliminated the ability of local governments to restrict oil and gas operations through zoning. The Pennsylvania Supreme Court overturned Act 13 in December 2013.

This Article reviews how Act 13 came to be, highlights the key provisions of …

Regulation Of Greenhouse Gases And Other Air Pollutants In The First Obama Administration And Major Air Issues For The Second Term, Patricia Mccubbin

Patricia Ross McCubbin

President Barack Obama has made addressing climate change the centerpiece of his environmental policy. Most recently, on June 25, 2013, the President gave a groundbreaking speech detailing the steps his administration will take to reduce greenhouse gas emissions throughout the United States. Of great controversy, the President directed the U.S. Environmental Protection Agency (EPA) to limit emissions of greenhouse gases from both new and existing power plants, which represent 40% of total U.S. carbon emissions. The President’s call to action – in his June 2013 speech and throughout his first term – stands in stark contrast to Congress’s inability to …

Third Party Access To Infrastructure In The United Kingdom Continental Shelf: An Unhappy Mix Of Heavy-Handed Regulation And Light-Handed Regulation, Yanal Abul Failat

Yanal Abul Failat

“An unhappy mix of poorly-drafted legislation; Statutory Guidance relative to the Ministerial power which is unfit for purpose; and a well-meaning but essentially useless industry code of best practice.”(Gordon 2012) The objective of this paper is to provide a synopsis on both hard law and soft law instruments addressing third-party access (“TPA”) to infrastructure in the UKCS. Firstly, the paper will outline the scope and purpose of TPA; followed by an outline and evaluation of the regulatory regime under the recently enacted Energy Act 2011 (“Act”) and the Infrastructure Code of Practice (“ICOP”). Finally, it will provide a conclusion on …

Ferc's Order No. 1000 From A Historical Perspective: Restructuring And Reorganization Of Electric Transmission Markets From 1996 Until Present, Nicolas A. Mctyre

Nicolas A. McTyre

No abstract provided.

Los Centros De Despacho Económico De Carga Como Entidades Que Ejercen Potestades Públicas, Marcelo Mardones

Marcelo Mardones

No abstract provided.

The Sun Also Rises: Prospects For Solar District Heating In The United States, Adam L. Reed, John S. Mccartney

Kevin L Doran

Renewable thermal energy remains a largely untapped resource in the United States, despite its low costs and growing popularity in many other countries and the pressing need to rapidly deploy and scale carbon-free energy sources in order to mitigate anthropogenic climate change. In this article, an energy attorney and a civil engineer collaborate to examine the prospects in the United States for solar district heating (SDH), a thermal technology that leverages economies of scale to provide zero-carbon, round-the-clock space and water heating (on average, the two largest components of building energy demand) to neighborhoods and commercial zones at costs competitive …

The Next Great Compromise: A Comprehensive Response To Opposition Against Shale Gas Development Using Hydraulic Fracturing In The United States, Monika Ehrman

Monika U. Ehrman

Lights Out In The Bakken: An Analysis Of Flaring Regulation And Its Potential Effect On North Dakota Shale Oil Production

Monika U. Ehrman

Legal Analysis Of The Eu Policy For Sustainable Transport Biofuels, Evgenia Pavlovskaia

Evgenia Pavlovskaia

Warnings about limited oil resources, as well as the necessity to reduce GHG emissions and secure energy supply1 have become prioritized issues on the EU agenda. It has been suggested to partially replace traditional fossil fuels with other sources of renewable energy, for example with biofuels in the transport sector. This has been seen as a promising solution for complications connected with the extraction and supply of oil, as well as for the reduction of GHG emissions. It has also become understandable that the quality of biofuels and their production methods need to be sustainable. The material, from which biofuels …

Carbon Capture And The Information Quality Act, Brendan Burke

Brendan Burke

In January 2014, the U.S. Environmental Protection Agency (EPA) issued a proposed new source performance standard (NSPS) under the Clean Air Act for carbon dioxide (CO2) emissions from new or modified electric utility plants that will effectively require implementation of a process known as carbon capture and sequestration (CCS). The new rule would limit CO2, a previously unregulated greenhouse gas emission, from such generation facilities to a rate of 1,100 pounds per megawatt-hour. Energy producers, especially those employing coal-fired plants, are strongly opposed to these limits. In February 2014, the Center for Regulatory Effectiveness sent a letter to the EPA …

Behavioral Approaches To Environmental Policy Analysis: A Case Study Of Offshore Wind Energy In The North American Great Lakes, Erik Edward Nordman

Erik Edward Nordman

Behavioral economics, including prospect theory, offers new approaches to environmental policy analysis. The utility of behavioral approaches to environmental policy analysis is illustrated using a case study of offshore wind energy policy in Michigan, USA. Michigan has attempted to clarify the permitting process for offshore wind energy but those efforts have failed. Prospect theory suggests that Michigan legislators are, for the most part, risk averse to policy reforms as the state emerges from its “one-state recession” and into a gains domain. Legislators from some coastal districts perceive offshore wind development as a threat to coastal quality of life, are risk-seeking …

Risk Tradeoff Analysis, Public Opinion And Nuclear Safety: A Spanish Case Study, Xiao Recio-Blanco

Xiao Recio-Blanco

The 2011 nuclear accident at Fukushima-Daiichi nuclear power plant opened a heated worldwide debate over nuclear energy. Unfortunately, neither the previous nor current Spanish governments have publicized the evidence used to evaluate the merits of extending the lifespan of Spain’s own Garoña plant. This article uses the Garoña case for a twofold purpose. First, the article analyzes the accountability of Spain’s executive power decisions on potentially catastrophic industrial activities. The paper finds that the lack of appropriate information disclosure duties in Spain may allow the government to abuse its discretion on actions potentially damaging to human health and the environment. …

Public Lands And The Federal Government’S Compact-Based “Duty To Dispose”: A Case Study Of Utah’S H.B. 148 – The Transfer Of Public Lands Act, Donald J. Kochan

Donald J. Kochan

Recent legislation passed in March 2012 in the State of Utah — the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”) — has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of …