Law Commons^™

V. 15, 2024 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

The Role Of Clean Hydrogen In The U.S. Transition To A Net-Zero-Carbon Economy, Miranda Barfield

San Diego Journal of Climate & Energy Law

The goal of this Article is threefold: first, to explain why clean hydrogen has become a key part of the United States’ decarbonization plans in recent years; next, to describe the existing and forthcoming U.S. policies and programs designed to incentivize and enable the growth of the domestic clean hydrogen market; and finally, to examine whether the U.S. is deploying the correct legal tools to successfully unlock the decarbonization potential of the clean hydrogen industry.

Section II explains the decarbonization potential of hydrogen, including an overview of U.S. emissions today and a background discussion of what hydrogen is, how it …

Repurposing Fossil Infrastructure, Heather E. Payne

San Diego Journal of Climate & Energy Law

Our built environment includes infrastructure dedicated to fossil fuels: wells, pipelines, compressor stations, refineries, fossil gas storage caverns, gas stations. One challenge as we decarbonize is how we will repurpose these locations and networks as we move toward a decarbonized world.

This Article imagines the outcomes for three distinct pieces of our fossil fuel infrastructure and how each could be a part of our decarbonized future. First, given the challenges seen building long distance transmission, local sources of renewable electricity will become even more critical. In many places, the most plentiful of these is rooftop solar, but it faces a …

Empowering Cca Leadership: Overcoming Legal And Policy Barriers To A 24/7 Renewable Energy Full Decarbonization Strategy, Doug Karpa

San Diego Journal of Climate & Energy Law

The public itself is the best guarantor of its own interests. Thus, the public utility regulatory oversight model that has dominated the electricity sector for over 100 years must be retooled for a modern, more complex era into one that allows greater democratic accountability to protect the public interest affordably. Given the dangerous urgency of the climate crisis, the fate of California and beyond may well depend on California leading by creating a modern governance structure to match its cutting-edge electricity sector.

A Major Question For Antipollution Policy: Artificial Intelligence Regulation In The Wake Of West Virginia V. E.P.A., David Collins

San Diego Journal of Climate & Energy Law

This Comment proceeds in three parts. Part I traces the development of the Major Questions Doctrine. Under the “old” doctrine, the key determinations that an agency’s ruling was major were (1) policy novelty and (2) policy economic impact. After using these factors to find an agency’s rule to be major, the Court would then independently interpret the statute the agency claimed authority from. The “new” Major Questions Doctrine departs from this previous rationale. Although the Court still considers (1) policy novelty, under this scheme, the Court further assesses (2) the political significance or controversial nature of policy in question and …

Climate Regulation And Co-Benefits: The Reality Of Co-Benefits In Climate Policy And The Reality We Face Without Them, Riley Jacobs

San Diego Journal of Climate & Energy Law

The United States has long required administrative agencies to conduct Cost-Benefit Analyses (“CBA”) in their rulemaking. By conducting CBA, agencies “show their work” to Congress, courts, and constituencies as to why the agency wishes to regulate a certain way and what it would cost to do so.

This Article will focus on co-benefits, an increasingly divisive component of CBA. Co-benefits, or benefits occurring secondary to the targeted purpose of statutory authority, assist agencies like the Environmental Protection Agency (“EPA”) in painting a holistic picture of everything the public has to gain from a rule’s passage. In recognizing that value, the …

Thriving In Theory, Missing The Mark: U.S. Organic Farming IndustryʼS Systemic Malfunctions And How Danish Organic Farming Policy Could Help Solve These Issues, Bailey Webster

San Diego Journal of Climate & Energy Law

Section one of this Article explains the overall framework of the U.S. organic farming industry, including certification, labeling, education, and funding. Section two explains the background and structure of Danish organic farming, administered by the Ministry of Food, Agriculture, and Fisheries of Denmark. Section three addresses and analyzes current issues afflicting the U.S. organic farming industry. Section four explores a prominent organic farming case, Center for Food Safety v. Perdue. Additionally, this Article details the comparison between the U.S. and Danish organic farming policies that are most relevant to issues in the U.S. industry. Lastly, and most importantly, this …

Natural Gas Or National Gas–Would A Statewide Natural Gas Ban In New Development Violate The Commerce Clause?, Madison D. Montague

San Diego Journal of Climate & Energy Law

This Article analyzes: (1) the contours of a natural gas installation ban, how municipalities have incorporated these bans, and how the state government may pass a statewide ban; (2) the likelihood that these bans would place a substantial burden on interstate commerce; (3) who, if anyone, would have standing to sue to end these bans; and (4) whether anyone could prevail in an action against a ban on new gas development.

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 …

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 …

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 …

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 …

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 …

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 …

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.

V. 13, 2022 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

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, …

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 …

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 …

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 …

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.

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 …

V. 12, 2021 Masthead

San Diego Journal of Climate & Energy Law

No abstract provided.

From Covid-19 To Climate Change: Disaster & Inequality At The Crossroads, Cinnamon P. Carlarne

San Diego Journal of Climate & Energy Law

This essay explores how the unfolding COVID-19 pandemic exposes and exacerbates structural inequalities in ways that are both obvious and alarming. It suggests that, even as the pandemic worsens inequality it forces us to confront it, and to see how the impacts of climate change will ripple unevenly across existing pathways of disparity.

The essay begins by examining how the COVID-19 pandemic is spotlighting and intensifying inequality and suggests that the vivid harms of the pandemic compel us to do more and do better to address structural inequality. The essay then provides an account of how climate change interacts with …

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 …

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 …

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 …

There’S Something In The Water: Toxic Exposure Liability Of Public Water Suppliers In The Face Of Near-Universal Pfas Exposure, David Lloyd

San Diego Journal of Climate & Energy Law

California has not experienced the type of willful, large-scale PFAS pollution that states that hosted its manufacture, such as Ohio and West Virginia, have endured. Regardless, the ubiquity of these chemicals in California’s food and water supply, combined with a growing awareness of the serious health risks of PFAS exposure, prompted California to become a nationwide leader in PFAS regulation. In 2017, the California Office of Environmental Health Hazard Assessment (OEHHA) “added PFOA and PFOS to the Proposition 65 list of chemicals known to the state to cause reproductive toxicity” without setting a “maximum allowable dose level, below which no …