Law Commons^™

Clean Energy Justice: Charting An Emerging Agenda, Joel B. Eisen, Shelley Welton

Law Faculty Publications

The rapid transition to clean energy is fraught with potential inequities. As clean energy policies ramp up in scale and ambition, they confront challenging new questions: Who should pay for the transition? Who should live next to the industrial-scale wind and solar farms these policies promote? Will the new “green” economy be a fairer one, with more widespread opportunity, than the fossil fuel economy it is replacing? Who gets to decide what kinds of resources power our decarbonized world? In this article, we frame these challenges as part of an emerging agenda of “clean energy justice.” Mapping this agenda highlights …

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

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 …

Book Review, The Electric Battery: Charging Forward To A Low-Carbon Future, Joel Eisen

Law Faculty Publications

The Electric Battery is the product of a Vermont Law School team led by Kevin Jones, the school’s Director of the Institute for Energy and the Environment. It is an essential resource for scholars, policymakers and others interested in the future for storage technologies in transportation and electricity, the sectors of the economy that produce the most greenhouse gases. Professor Jones brings considerable expertise to the project, having produced well-regarded reports on smart grid issues, and some projects mentioned in the book – such as the partnership between Tesla and Green Mountain Power – are located in the authors’ home …

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 …

Demand Response’S Three Generations: Market Pathways And Challenges In The Modern Electric Grid, Joel Eisen

Law Faculty Publications

Through a historical analysis spanning nearly five decades, this Article provides a comprehensive discussion of how demand response (reductions in electricity consumption in response to grid emergencies or price signals) has become both a growing resource on the electric grid and a policy trailblazer in the grid’s ongoing transformation. The discussion centers on three separate generations of efforts to promote demand-side measures in the electric grid, dating to the 1960s and oriented chronologically around important events in the electric power industry.

Demand response has been a test bed of important regulatory principles like frameworks for interactivity with the grid, the …

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 …

Should The United States Create Trading Markets For Energy Efficiency?, Noah M. Sachs

Law Faculty Publications

This Comment examines whether the vision for energy efficiency markets matches the reality. It explains how energy efficiency markets work, examines the handful of energy efficiency markets that have been established to date, and explores the policy challenges inherent in commodifying energy efficiency and making it a tradable good.

Demand Response In Wholesale Markets, Joel B. Eisen

Law Faculty Publications

Demand response participation in wholesale markets is an important building block in a profound transformation of electricity systems in the United States and Europe. Technical and economic innovations, supported by governmental policies, are moving electricity systems toward smart grids that integrate generation, transmission and distribution in a more networked, environmentally responsible and efficient manner, incorporating distributed energy resources and delivering benefits for utilities and consumers. As one component of smart grids, consumers, utilities and regional grid operators may benefit from more use of demand response programmes that reduce peak power consumption and market price spikes, balance intermittency of renewables and …

The Limits Of Energy Efficiency Markets In Climate-Change Law, Noah M. Sachs

Law Faculty Publications

This Article examines whether market-based policies, deployed in many areas of environmental law, should be harnessed to promote energy efficiency. Several countries in Europe and Asia have experimented with this new approach to energy efficiency, establishing markets that involve mandatory energy savings targets for firms and inter-firm trading of certificates that represent quantified energy savings. Many analysts contend that these new markets can unlock overlooked opportunities for energy efficiency improvements and could be a critical policy tool for addressing climate change. After describing the rationale for these new markets and their operation in other countries, this Article concludes that the …

Ferc’S Expansive Authority To Transform The Electric Grid, Joel B. Eisen

Law Faculty Publications

Using an unprecedented historical analysis of over 100 years of law dating to the Progressive Era, this Article concludes that the Supreme Court’s landmark decision in Federal Energy Regulatory Commission (“FERC”) v. Electric Power Supply Association properly asserted that FERC has ample authority to pursue broad environmental and energy goals in transforming the electric grid. Building on the Court’s finding that FERC may regulate “practices” that “directly affect” rates in wholesale electricity markets, the analysis develops a detailed standard that is consistent with interpretation of regulatory statutes in each of three distinct eras: the Progressive Era, the era of regulation …

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.

U.S. Supreme Court, Amicus Brief Of Interested Energy Law Scholars In Support Of Petitioner, Federal Energy Regulatory Commission V. Electric Power Supply Association, Joel B. 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. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which …

An Open Access Distribution Tariff: Removing Barriers To Innovation On The Smart Grid, Joel B. Eisen

Law Faculty Publications

This Article proposes that the Federal Energy Regulatory Commission (FERC) consider promulgating an Open Access Distribution Tariff (OADT) to open the nation's electric grid to new products and services at the consumer (distribution) level. Design of the OADT would be comparable to the Open Access Transmission Tariff that the FERC has used previously to open the nation's transmission wires. This Article argues that an OADT is necessary to create a smart electricity network that would be national, multimodal, and interactive. There is no smart electricity network at present, and there are numerous barriers to the development of open networking, such …

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

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 …

Energy And Environmental Law, Joel B. Eisen

Law Faculty Publications

This chapter covers energy law, which focuses on the production, distribution, conservation, and development of energy resources. State and federal energy laws and regulations are designed to keep prices to consumers down (particularly in certain energy industries which state and federal governments monitor to keep markets as competitive as possible) and to address economic, environmental, and national security issues.

Can We Regulate Our Way To Energy Efficiency? Product Standards As Climate Policy, Noah M. Sachs

Law Faculty Publications

In this Article, I demonstrate that the regulatory strategy for energy efficiency is working. Although information disclosure, financial incentives, and other softer alternatives to regulation play a vital role in reducing energy demand, these should be viewed as complements to efficiency regulation, rather than replacements. The regulatory approach has led to substantial cost and energy savings in the past, it has enjoyed bipartisan political support, and it targets products and behaviors that are difficult to address through other policy tools. Given the politics of climate change in the United States, which make federal carbon taxes or a cap-and-trade system infeasible, …

Distributed Energy Resources, "Virtual Power Plants," And The Smart Grid, Joel B. Eisen

Law Faculty Publications

The specific focus of this Article is on the "virtual power plant" (VPP) concept, an intriguing idea that involves an aggregation of DERs to provide a "fleet" of resources that can serve as the functional equivalent of a traditional power plant. As the name suggests, this fleet of DERs can add up in the aggregate to the equivalent of a significant resource. Under certain conditions, this resource can be used on the grid (i.e., dispatched) much as a conventional power plant would be. This could reduce demand for fossil fuel-fired plants by enabling a utility to avoid generating electricity or …

Residential Renewable Energy: By Whom?, Joel B. Eisen

Law Faculty Publications

The technology already exists to put solar photovoltaic (PV) panels on millions of homes, but we have paid inadequate attention to getting them there. This current lack of focus on distribution will limit residential solar deployment indefinitely, unless it is addressed soon. While a number of solutions to this problem have been proposed or are in various stages of implementation, this Article finds that given the pressing need to address climate change, more rapid action is needed. In addition to pursuing other options for generating electricity using renewables (including onshore and offshore wind power, and utility-scale solar power stations), and …

The New Energy Geopolitics?: China, Renewable Energy, And The "Greentech Race", Joel B. Eisen

Law Faculty Publications

The issue of China's support for renewables has taken center stage in the United States, thanks to an investigation by the United States Trade Representative (USTR) that commenced in October 2010. That investigation began with a complaint alleging that China unfairly subsidizes its greentech industries, in violation of its obligations as a member of the World Trade Organization (WTO). Well before that investigation began, numerous Americans believed the United States was less engaged in greentech promotion than China. China has come very far in a short amount of time to promote renewables, and many feel the United States is falling …

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 …

China's Renewable Energy Law: A Platform For Green Leadership?, Joel B. Eisen

Law Faculty Publications

This article describes programs and initiatives in China promoting growth of renewable energy capacity, and analyzes obstacles to future growth.

Greening Demand: Energy Consumption And U.S. Climate Policy, Noah M. Sachs

Law Faculty Publications

The search for greener, less polluting energy supplies has dominated discussions of u.s. climate change strategy, but we often overlook cheaper and faster greenhouse gas emissions reductions achievable through energy efficiency and conservation. In this article, I outline a decade-long "greening demand" agenda to reduce the amount of energy consumed in the United States. The federal government should aim to reduce U.S. energy consumption by fifteen percent by 2016 and twenty percent by 2020 to achieve needed reductions in greenhouse gas emissions.

While the United States has achieved notable efficiency gains since the 1970s, several market failures and other barriers …

Regulatory Linearity, Commerce Clause Brinksmanship, And Retrenchment In Electric Utility Deregulation, Joel B. Eisen

Law Faculty Publications

The point of this Article is that if an agency has reached this point in the lifetime of its reinvention efforts by being "linear," then the experiment should end. In the case of restructuring, that is not the case, but two aspects of the situation make it exquisitely difficult to see this: an agency that is trying the same ideas repeatedly (FERC) and a complex set of variables that has hampered restructuring activity. Through this fog, the final point to be made is that if moving beyond the current stasis requires change, this should be contemplated. This industry is famously …

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 …