Law Commons^™

How Local Is Local?: A Response To Professor David B. Spence's The Political Economy Of Local Vetoes, Joshua P. Fershee

Joshua P Fershee

Professor Fershee responds to Professor David B. Spence’s article about local hydraulic fracturing bans: The Political Economy of Local Vetoes, 93 Texas L. Rev. 351 (2015). Professor Spence notes that the shale oil and gas debate provides an example of “an age-old political problem that the law is called upon to solve: the conflict between an intensely held minority viewpoint and a less intense, contrary view held by the majority.” In resolving such conflicts, Spence suggests that courts should resolve such “conflicts in ways that encourage states and local governments to regulate in ways that weigh both the costs and …

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 …

The Oil And Gas Evolution: Learning From The Hydraulic Fracturing Experiences In North Dakota And West Virginia, Joshua P. Fershee

Joshua P Fershee

This Article discusses major differences and similarities in U.S. oil and gas extraction via hydraulic fracturing through a comparison of the experiences in North Dakota and West Virginia. Although there are other parts of the country experiencing growth in oil and gas extraction, Pennsylvania and Texas as but two examples, North Dakota and West Virginia are particularly apt for comparison. Both states have relatively small populations, meaning that the impact of large-scale energy extraction in each state is likely to have a large impact on the state, economically, environmentally, and socially.

This Article focuses on three main areas of comparison. …

Promoting An All Of The Above Approach Or Pushing (Oil) Addiction And Abuse?: The Curious Role Of Energy Subsidies And Mandates In U.S. Energy Policy, Joshua P. Fershee

Joshua P Fershee

President Bush declared America “addicted to oil” in his fifth State of the Union address, uttering what is now a common refrain used to urge the development of alternative fuel sources. Before progress can be made to modernize the U.S. fuel mix, though, it is important to consider how and why the current fuel mix came to be. To do so, this article first considers whether the United States is, in fact, addicted to oil. The article looks to the medical definitions of addiction and analyzes the U.S. relationship with oil to assist in analyzing the potential effectiveness of U.S. …

Reliably Unreliable: The Problems With Piecemeal Federal Transmission And Grid Reliability Policies, Joshua P. Fershee

Joshua P Fershee

In the past, electricity was considered a local concern, but over time major portions of the electrical grid have become regional, national, and even international in scope. Electricity regulation has evolved into a complex web of multijurisdictional oversight, and this evolution has created both tensions and opportunities. National legislation and regulation have helped increase reliability, diversify the fuel mix for electricity generation, and create a more open market for electricity. However, national regulation designed to enhance open markets also created opportunities for abuse. In addition, the increasing level of federal oversight has led to conflicts between state and federal entities …

Llcs And Corporations: A Fork In The Road In Delaware?, Joshua P. Fershee

Joshua P Fershee

As Vice Chancellor Laster explained in CML V, LLC v. Bax, 6 A.3d 238 (Del. Ch. Nov. 3, 2010): '[T]here is nothing absurd about different legal principles applying to corporations and LLCs.'" This short paper argues that courts should respect the LLC as a business form distinct from corporations and that Delaware courts have taken the first step toward doing just that.

Where legislatures have decided that distinctly corporate concepts should apply to LLCs—such as allowing piercing the veil or derivative lawsuits—those wishes (obviously) should be honored by the courts. But where state LLC laws are silent, courts should carefully …

North Dakota Expertise: A Chance To Lead In Economically And Environmentally Sustainable Hydraulic Fracturing, Joshua P. Fershee

Joshua P Fershee

North Dakota is uniquely, and largely favorably, situated to benefit from hydraulic fracturing, and has already reaped many such benefits. During the recent economic crisis, North Dakota’s housing market has been stable, unemployment has been remarkably low, and the state has maintained a strong and increasing budget surplus at a time when many states were operating budget deficits. But these benefits have not come without some costs.

This Article seeks to put the current North Dakota oil boom in context and help provide a path for developing legislative and regulatory policies that prolong and reinforce sustainable and beneficial oil development. …

Choosing A Better Path: The Misguided Appeal Of Increased Criminal Liability After Deepwater Horizon, Joshua P. Fershee

Joshua P Fershee

Despite the potential appeal of dramatically increased liability and sentences in the wake of environmental disasters like the Deepwater Horizon oil blowout in the Gulf of Mexico, this Article argues that more aggressive criminal provisions and enforcement related to environmental harms, up to and including strict criminal liability, are not likely to protect the environment better or lead to safer work environments. This Article first considers the history and legality of, and the rationale behind, policies designed to make it easier to convict allegedly responsible parties and also discusses the pursuit of increased liability in relation to disaster-related and tragedy-related …

Moving Power Forward: Creating A Forward-Looking Energy Policy Based On A National Rps, Joshua P. Fershee

Joshua P Fershee

In Power Forward: The Argument for a National RPS, Professor Lincoln L. Davies provides a comprehensive and compelling argument for a national renewable portfolio standard (“RPS”). This Commentary Article reviews Professor Davies’ assumptions and conclusions and places his RPS analysis in context within the broader energy and environmental debate.

Beyond expanding renewable energy generation and shifting away from fossil fuels, RPS legislation is often motivated by additional goals: addressing climate change, improving national security, and promoting economic development. This Commentary Article argues that, if these loftier goals are to be achieved, a better articulation of RPS objectives is necessary. Furthermore, …

When Prayer Trumps Politics: The Politics And Demographics Of Renewable Portfolio Standards, Joshua P. Fershee

Joshua P Fershee

This Article seeks to understand who supports renewable energy mandates (and why) by analyzing a variety trends found in political and socio-economic data by state, as well as by state renewable energy opportunities (or the lack of such opportunities). The review finds little shocking in the way of politics: Democratic states tend to favor mandates and Republican states tend not to have mandates. Somewhat surprisingly, the correlations among states with wind and solar resources (as well as most of the demographic data) ranged from limited to inconclusive. In religion, however, a strong trend developed. The states with higher Catholic populations …

Atomic Power, Fossil Fuels, And The Environment: Lessons Learned And The Lasting Impact Of The Kennedy Energy Policies, Joshua P. Fershee

Joshua P Fershee

Because of his short term of office, President Kennedy’s energy policies have not been critiqued, reviewed, or analyzed in the same manner, or to the same degree, as other administrations. This Essay fills part of that void by reviewing the key components of President Kennedy’s energy and environmental goals and policies that managed to have a lasting impact, despite his short term in office, and discusses the results of those policies, both positive and negative. Through this review, President Kennedy’s policies can become a resource and roadmap for the current Administration and all those who seek to ensure access to …

The Rising Tide Of Climate Change: What America’S Flood Cities Can Teach Us About Energy Policy And Why We Should Be Worried, Joshua P. Fershee

Joshua P Fershee

To provide a model for assessing the current and likely responses to climate change risks, this Article considers two of America’s worst flood disasters—in Grand Forks, North Dakota, and New Orleans, Louisiana— and applies the same rationale to critical climate change issues facing the nation today. This Article, written by a current resident of Grand Forks and a former New Orleans resident, begins with a background on climate change and related policy initiatives. Next, it considers the flood of 1997 in Grand Forks, which caused more than 50,000 people to abandon their homes. The development of the flood preparations, the …

The North Dakota Publicly Trade Corporations Act: A Branding Initiative Without A (North Dakota) Brand, Joshua P. Fershee

Joshua P Fershee

Any time a new market is entered and a new brand is created, whether it is the market for corporate governance laws or consumer electronics, it is essential to understand the market and have a clear vision of what the brand is supposed to be. When the North Dakota Publicly Traded Corporations Act (Act) became law on July 2, 2007, the state of North Dakota officially entered (or tried to enter) the corporate governance market. Rather than adding to the already significant debate about the value of increased shareholder rights or arguing that the Act was bad (or good) for …

Changing Resources, Changing Market: The Impact Of A National Renewable Portfolio Standard On The U.S. Energy Industry, Joshua P. Fershee

Joshua P Fershee

The U.S. Congress recently passed a new energy bill that, until that last minute, included provisions that would have established a national renewable portfolio standard (RPS). The RPS would have required electric utilities to procure a certain percentage of their electricity from renewable resources or purchase renewable energy credits from other sources to meet the standard. The recent energy bill is just the latest of repeated, and thus far failed, efforts to impose a national RPS. As such, there has been much debate about the potential merits and hazards of a national RPS, and more is sure to follow. Rather …

Misguided Energy: Why Recent Legislative, Regulatory, And Market Initiatives Are Insufficient To Improve The U.S. Energy Infrastructure, Joshua P. Fershee

Joshua P Fershee

This Article argues that recent legislative and regulatory attempts to address inadequate energy infrastructure in the United States are too limited in scope and rely too heavily on market-based initiatives to stimulate the urgent improvements that are necessary. The Article analyzes the likely effects of the Energy Policy Act of 2005, challenging the assumption that the provisions intended to remove potential impediments to investment--including those repealing the Public Utilities Holding Company Act and modifying the merger review authority of the Federal Energy Regulatory Commission (“FERC”)--are likely to result in significant new investment in energy infrastructure. In addition to identifying remaining …