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- Law Faculty Publications (5)
- Dams: Water and Power in the New West (Summer Conference, June 2-4) (3)
- Articles by Maurer Faculty (2)
- Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7) (2)
- Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6) (2)
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- Vanderbilt Law School Faculty Publications (2)
- Allocating and Managing Water for a Sustainable Future: Lessons from Around the World (Summer Conference, June 11-14) (1)
- Articles (1)
- Best Management Practices and Adaptive Management in Oil and Gas Development (May 12-13) (1)
- GW Law Faculty Publications & Other Works (1)
- Law & Economics Working Papers (1)
- Law Faculty Scholarly Articles (1)
- Moving the West's Water to New Uses: Winners and Losers (Summer Conference, June 6-8) (1)
- Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15) (1)
- Sabin Center for Climate Change Law (1)
- The Federal Impact on State Water Rights (Summer Conference, June 11-13) (1)
- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (1)
- The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4) (1)
- Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3) (1)
- Western Water Law in Transition (Summer Conference, June 3-5) (1)
Articles 1 - 30 of 30
Full-Text Articles in Law
Evaluating Project Need For Natural Gas Pipelines In An Age Of Climate Change, Alexandra B. Klass
Evaluating Project Need For Natural Gas Pipelines In An Age Of Climate Change, Alexandra B. Klass
Law & Economics Working Papers
As the Biden administration attempts to make climate change the focus of many aspects of its domestic and international agenda, an independent federal regulatory agency—the Federal Energy Regulatory Commission (FERC)—finds itself at the center of debates over the nation’s energy policies and greenhouse gas (GHG) emissions. Under Sections 4 and 5 of the Natural Gas Act of 1938, FERC has the authority and obligation to ensure that rates, charges, and rules relating to interstate natural gas sales and transportation are just, reasonable, and nondiscriminatory. Under Section 7 of the Natural Gas Act, FERC also has the authority to grant certificates …
Taking From States: Sovereign Immunity's Preclusive Effect On Private Takings Of State Land, Jennifer Danis, Michael Bloom
Taking From States: Sovereign Immunity's Preclusive Effect On Private Takings Of State Land, Jennifer Danis, Michael Bloom
Sabin Center for Climate Change Law
The core of a state is its physical presence and dominion over its land. States are now battling to maintain their dignity as sovereigns, while traditional tools essential to federalism risk erosion. Private actors, ostensibly empowered by the federal government to condemn land through eminent domain, threaten state sovereignty by attempting to take state property without consent. Select federal statutes, such as the Natural Gas Act and Federal Power Act, grant eminent domain power to private companies to take property for public use. Without proper limiting principles, a statute granting such power could allow a private corporation to condemn and …
Energy Federalism's Aim, Jim Rossi
Energy Federalism's Aim, Jim Rossi
Vanderbilt Law School Faculty Publications
The Federal Power Act (FPA) has endured for eighty-five years, in part because it does not embrace a single regulatory approach for the energy industry. Nor does the FPA favor a single approach to federal- ism: it delegates broad authority to the Federal Energy Regulatory Commission (FERC) to regulate the wholesale sale and transmission of energy in interstate commerce, while leaving states considerable leeway to regulate not only retail rates but also power generation and distribution. The statute expanded federal authority over wholesale electric power sales, with the primary purpose of closing regulatory gaps in interstate energy markets.
For the …
The New(Clear?) Electricity Federalism: Federal Preemption Of States’ “Zero Emissions Credit” Programs, Joel Eisen
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 …
Constrained Regulatory Exit In Energy Law, Jim Rossi
Constrained Regulatory Exit In Energy Law, Jim Rossi
Vanderbilt Law School Faculty Publications
In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …
Dual Electricity Federalism Is Dead, But How Dead And What Replaces It?, Joel B. Eisen
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 …
Ferc V. Epsa And The Path To A Cleaner Electricity Sector, Joel B. Eisen
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 …
Ferc’S Expansive Authority To Transform The Electric Grid, Joel B. Eisen
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 …
Empowering Federal Regulation For A Changing Electricity Sector, Felix Mormann
Empowering Federal Regulation For A Changing Electricity Sector, Felix Mormann
Articles
No abstract provided.
Brief For Federal Energy Regulatory Commission As Amici Curiae Of Energy Law Scholars Supporting Petitioners, Joel Eisen
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.
Slides: Water Management On Public Lands: Chapter 8 Of The Pllrc Report, Michael Gheleta
Slides: Water Management On Public Lands: Chapter 8 Of The Pllrc Report, Michael Gheleta
The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)
Presenter: Michael Gheleta, U.S. Department of the Interior, Office of the Solicitor (Lakewood, CO)
12 slides
Slides: "Mitaku Oyasin" Means "We Are All Related", Bob Gough
Slides: "Mitaku Oyasin" Means "We Are All Related", Bob Gough
Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)
Presenter: Bob Gough, NativeEnergy, Inc.
72 slides
Slides: Fuel Choice Determines Transmission, Doug Larson
Slides: Fuel Choice Determines Transmission, Doug Larson
Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)
Presenter: Doug Larson, Western Interstate Energy Board
26 slides
Justice Delayed: A Tribal Attorney’S Perspective On Elwha River Dam Removal And Ecosystem Restoration, Russell W. Busch
Justice Delayed: A Tribal Attorney’S Perspective On Elwha River Dam Removal And Ecosystem Restoration, Russell W. Busch
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
Presenter: Russell W. Busch, Attorney for the Lower Elwha Klallam Tribe
10 pages.
Realizing The Promise Of Restructuring The Electricity Market, Richard J. Pierce Jr
Realizing The Promise Of Restructuring The Electricity Market, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In this contribution to a symposium on restructuring the U.S. electricity market, I summarize the peaks and valleys that have characterized the restructuring process over the past two decades. I begin by describing the reasons why I joined with a group of other academics twenty years ago in an effort to restructure the U.S electricity market. The market was characterized by large, well-documented structural and operational maladies; it had performed poorly for over a decade; its basic characteristics were consistent with increased reliance on market forces as an effective governance mechanism; and, our recent success in restructuring analogous markets provided …
Slides: Lessons Learned From The Development And Implementation Of An Adaptive Management Plan At Three Hydropower Plants In Northeastern Washington State, Bob Dach
Best Management Practices and Adaptive Management in Oil and Gas Development (May 12-13)
Presenter: Bob Dach, Federal Activities Specialist, U.S. Fish and Wildlife Service, Mountain-Prairie Region, Lakewood, CO
11 slides
Pre-Conference Statement For The Session On “Integrating Environmental, Cultural And Other Values In Water Law And Policy”, David H. Getches, Sarah B. Van De Wetering
Pre-Conference Statement For The Session On “Integrating Environmental, Cultural And Other Values In Water Law And Policy”, David H. Getches, Sarah B. Van De Wetering
Allocating and Managing Water for a Sustainable Future: Lessons from Around the World (Summer Conference, June 11-14)
39 pages.
Contains references (pages 36-39).
Initiatives And Conflicts In Changing Federal Facility Operation, Lawrence J. Macdonnell
Initiatives And Conflicts In Changing Federal Facility Operation, Lawrence J. Macdonnell
Dams: Water and Power in the New West (Summer Conference, June 2-4)
18 pages.
Contains references.
Environmental Benefits Of Reoperation, Relicensing, Decommissioning And Recapture, Richard Roos-Collins
Environmental Benefits Of Reoperation, Relicensing, Decommissioning And Recapture, Richard Roos-Collins
Dams: Water and Power in the New West (Summer Conference, June 2-4)
35 pages.
Contains footnotes.
Dams: Their Costs And Benefits, Daniel F. Luecke
Dams: Their Costs And Benefits, Daniel F. Luecke
Dams: Water and Power in the New West (Summer Conference, June 2-4)
13 pages (includes illustrations).
Contains 3 pages of references.
The Attraction And Limits Of Textualism: The Supreme Court Decision In Pud No. 1 Of Jefferson County V. Washington Dep't Of Ecology, Michael P. Healy
The Attraction And Limits Of Textualism: The Supreme Court Decision In Pud No. 1 Of Jefferson County V. Washington Dep't Of Ecology, Michael P. Healy
Law Faculty Scholarly Articles
During its 1993 Term, the Supreme Court had the opportunity to consider the interaction between two federal statutory schemes: the Federal Power Act (FPA), which provides that the Federal Energy Regulatory Commission (FERC) has the authority to regulate and license hydropower projects, and the Clean Water Act (CWA), which provides that states have the authority to adopt water quality standards and that federal law will impose and enforce those standards in regulating emissions into, and the quality of, waters of the United States. The tension created by these two statutes lies not only between federal agencies, but more importantly, between …
What A Federal Natural Resource Management Agency Can Do To Avoid Takings, John D. Leshy
What A Federal Natural Resource Management Agency Can Do To Avoid Takings, John D. Leshy
Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)
6 pages.
The Role Of The Federal Energy Regulatory Commission In Protecting Non-Consumptive Water Uses, Peter J. Kirsch, J. Barton Seitz
The Role Of The Federal Energy Regulatory Commission In Protecting Non-Consumptive Water Uses, Peter J. Kirsch, J. Barton Seitz
Moving the West's Water to New Uses: Winners and Losers (Summer Conference, June 6-8)
55 pages.
Interjurisdictional Relations Under Federal Water Quality Law: A Guide Through The Maze, Michael C. Blumm, Daniel Rohlf
Interjurisdictional Relations Under Federal Water Quality Law: A Guide Through The Maze, Michael C. Blumm, Daniel Rohlf
Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7)
53 pages.
Contains references.
Agenda: Boundaries And Water: Allocation And Use Of A Shared Resource, University Of Colorado Boulder. Natural Resources Law Center
Agenda: Boundaries And Water: Allocation And Use Of A Shared Resource, University Of Colorado Boulder. Natural Resources Law Center
Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7)
Conference organizers and/or faculty included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell and Charles F. Wilkinson.
Boundaries and Water: Allocation and Use of a Shared Resource is the topic of the Center's annual summer program on water this June. Most of the major rivers in the western United States are shared between two or more states. Often tribal governments play an important role in water allocation and use decisions. International considerations also may be involved in some cases. These interjurisdictional issues extend to groundwater as well as surface water.
This conference will provide the …
Federal Regulatory Rights In Water, Lawrence J. Macdonnell
Federal Regulatory Rights In Water, Lawrence J. Macdonnell
Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)
29 pages.
Contains 1 page of references.
The Federal Power Act's Controversial Municipal Preference: The Merwin Dam Dispute And Legislative Proposals To Amend Federal Hydro-Licensing Procedures, Daniel H. Cole
Articles by Maurer Faculty
No abstract provided.
The Federal Power Act's Controversial Municipal Preference: The Merwin Dam Dispute And Legislative Proposals To Amend Federal Hydro-Licensing Procedures, Daniel H. Cole
Articles by Maurer Faculty
For more than a half-century, the Federal Energy Regulatory Commission (FERC or Commission) and its predecessor, the Federal Power Commission (FPC), regulated hydroelectric development of the nation's rivers under the Federal Power Act (FPA) with little interference by Congress.' However, increasing criticism of the FERC has reawakened congressional interest in hydropower regulation.2 Congress recently considered a number of proposals to amend the FPA.8 Of these, seven related directly to a controversy born in the 1970s between public and private power:4 the issue of preference in competitive FERC relicensing proceedings.
Section 7(a) of the Federal Power Act directs the FERC to …
Federal/State Relations In Theory And Practice: A Sovereignty Mismatch, Charles T. Dumars
Federal/State Relations In Theory And Practice: A Sovereignty Mismatch, Charles T. Dumars
Western Water Law in Transition (Summer Conference, June 3-5)
12 pages.
Contains footnotes.
Agenda: The Federal Impact On State Water Rights, University Of Colorado Boulder. Natural Resources Law Center
Agenda: The Federal Impact On State Water Rights, University Of Colorado Boulder. Natural Resources Law Center
The Federal Impact on State Water Rights (Summer Conference, June 11-13)
Conference organizers and/or speakers included University of Colorado School of Law professors James N. Corbridge, Jr., David H. Getches, Lawrence J. MacDonnell and Richard B. Collins.
In general, water rights are a matter of state law. However, the availability and development of water are affected by important federal rights, policies and programs. In this conference, an outstanding group of private practitioners, government representatives and academics consider this important topic.