Law Commons^™

Riding The Wave: Confronting Jurisdictional And Regulatory Barriers To Ocean Energy Development, Danielle Murray, Christopher Carr, Jennifer Jeffers, Alejandra Núñez-Luna

Jennifer M. Jeffers

This Article provides a brief history of wave energy development, examines the status of hydrokinetic projects undertaken at a state and local level, and navigates the overlapping, and often competing, jurisdictional mandates confronting U.S. project developers. It also explores lessons learned from the European Union’s (EU) recent regulatory experience and provides recommendations for short- and long-term steps forward in the United States. Part II discusses early wave energy projects, research and policy developments, and highlights recent advances in technical testing and economic feasibility of wave energy projects. Part III analyzes the status of hydrokinetic energy development at the state and …

Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone

Michigan Journal of Environmental & Administrative Law

The public trust doctrine is a powerful legal tool in property law that requires the sovereign, as a trustee, to protect and manage natural resources. Historically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, electricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Hawaii, and New Jersey—and how it would potentially apply to each state’s electricity planning …

Solar Rights In The United States, Sara Bronin

Sara C. Bronin

Solar rights are legal rights needed to ensure that a piece of land has access to sunlight. These rights may be of interest to property owners seeking to undertake a variety of activities: farming, lighting, and clothes drying, to name a few. But perhaps the most economically significant purpose for which solar rights may be utilized is for the purpose of solar collectors. Such devices are used to harness the rays of the sun and transform them into thermal, chemical, or electrical energy. In an era of increasing deployment of solar collectors across the globe, the fair and efficient allocation …

Innovative Financing For Renewable Energy, Richard L. Ottinger, John Bowie

Pace Environmental Law Review

This paper discusses successful innovative methods for financing the high initial equipment costs of many renewable energy resources, with case studies of their application. Financial instruments for renewable energy installations are frequently dependent on physical and economic infrastructure. In response to this fundamental interconnectedness between infrastructure, economy, and financial instruments, this paper follows a rough structure of financing methods used in: Areas unserved by an electricity grid; Areas of modest means served by limited transmission interconnections; and Areas with developed regional or national grid connectedness.

Renewables have many benefits, but they also face challenges as they enter the existing market …

How Entrepreneurs Can Crowdfund Renewable Energy Projects, Adrian Chiang

The Journal of Business, Entrepreneurship & the Law

This Article explains how the entrepreneurial efforts and the upcoming changes in crowdfunding law will allow for more successful renewable energy projects in the United States. Part II examines the renewable energy market, its relevance, and the United States' transition from traditional non-renewable energy production to renewable energy production. Part III covers the general methods of energy financing from both public and private sources and how they have been utilized in typical energy financing structures. Part IV explains how an entrepreneur, utilizing the new rules on crowdfunding, can address the existing deficiencies in financing renewable energy projects. Part V explores …

The Master Limited Liability Partnerships Parity Act: Friend Or Foe?, Sonia J. Toson

Pace Environmental Law Review

In April of 2013, Democratic Senator Chris Coons of Delaware introduced legislation that seeks to level the playing field between renewable and non-renewable energy companies. Titled the “Master Limited Partnerships Parity Act” (MLPPA), the legislation would amend the federal tax code to allow renewable energy companies to form master limited partnerships and thereby gain valuable financing and tax advantages. This legislation would clear the way for the formation of master limited partnerships investing in renewable energy, which would have significant impact on clean energy production in the United States. This article discusses the Master Limited Partnerships Parity Act and explores …

Finding The Adequate Legal Framework For The Deployment Of Ocean Renewable Energy Through Area-Based Management, Xiao Recio-Blanco

Xiao Recio-Blanco

The world runs on electricity, but its global distribution is uneven and incomplete. The lack of access to electricity denies some people the most basic benefits, from healthcare and sanitation to security and economic development.

To increase access to electricity, most developing nations have relied on traditional sources of energy, namely fossil fuels, and the extension of a central electrical grid. Scholars and specialized International Organizations suggest that the implementation of renewable energy technologies through small-to-mid scale grid projects could be a reliable alternative. However, renewable energy technologies must overcome three formidable hurdles: low reliability, uneven availability, and the high …

Recovering From The Recovery Narrative: On Globalism, Green Jobs And Cyborg Civilization, Michael Burger

Akron Law Review

In this Essay, I make a preliminary foray into this new narrative terrain, identifying several emerging legal storylines that have arisen in the wake of climate change disruptions and that I predict will prove influential in the coming years. In Part I, I discuss the ways in which new perceptions of scale are re-defining human beings’ attachments to a sense of “place” or “dwelling” and are shaping new attitudes about what constitutes the local, posing potential problems for existing federalism schemes. In Part II, I discuss the ways in which America’s long history of nationalizing nature manifests in the discourse …

Energy In The Ecopolis, Sara Bronin

Sara C. Bronin

Climate change, resource scarcity, and environmental degradation demand a paradigm shift in urban development. Currently, too many of our cities exacerbate these problems: they pollute, consume, and process resources in ways that negatively impact our natural world. Cities of the future must make nature their model, instituting circular metabolic processes that mimic, embrace, and enhance nature. In other words, a city must be a regenerative city or, as some say, an “ecopolis.” So, how to get there—to ecopolis—from here? In this Comment, I propose a partial answer by focusing on certain legal frameworks that must be reenvisioned to enable the …

Demand Response And Market Power, Bruce R. Huber

Journal Articles

In her article, Bypassing Federalism and the Administrative Law of Negawatts, Sharon Jacobs educates her readers about the concept of demand response, and then describes its propagation in recent years while making the broader argument that the Federal Energy Regulatory Commission (“FERC”) — the federal government’s principal energy regulator — has engaged in a strategy of “bypassing federalism” that may entail more costs than benefits. Professor Jacobs is right to call attention to demand response and to FERC’s approach to matters of jurisdictional doubt. While I share many of her concerns about boundary lines in a federal system, I argue …

The Superagency Solution, K.K. Duvivier

Sturm College of Law: Faculty Scholarship

In many parts of the country, hydraulic fracturing has brought energy development onto people’s doorsteps. Efforts by local governments to employ traditional land use mechanisms to study and mitigate some of the impacts of these latest intrusions have erupted into battles over the scope of statewide agencies’ control. Forgotten in this fray are many renewable energy resources. As a general rule, they are not subject to statewide oversight, and consequently renewable energy providers must navigate the myriad of siting and permitting requirements of local jurisdictions. For several years, scholars have urged more statewide renewable energy siting procedures to level the …

Expanding The Renewable Energy Industry Through Tax Subsidies Using The Structure And Rationale Of Traditional Energy Tax Subsidies, Blake Harrison

University of Michigan Journal of Law Reform

Just as the government invested in oil and gas, it must now invest in new energy sources. In a sense, Americans need history to repeat itself. This Note suggests that Congress should amend the United States Tax Code to further subsidize the renewable energy industry. Congress should use subsidies historically available to the oil and gas industries as a model in its amendments. These subsidies serve as a model for promoting the renewable energy industry because such subsidies were fundamental in facilitating the oil and gas industries’ dominance today. Ultimately, Congress must further subsidize the renewable energy industry to avoid …

Green Energy In Indian Country As A Double-Edged Sword For Native Americans: Drawing On The Inter-American And Colombian Legal Systems To Redefine The Right To Consultation, Diana Coronel David

Student Works

Energy is a key component in the redress of climate change evils and the United States has one of the highest per capita energy consumption in the world. The federal government’s goal is to reduce the country’s dependence on oil and double its wind and solar electricity generation by 2025. The development of renewable energy projects is to a great extent tied to Indian Country. This is highly important for Indian tribes as an empowering mechanism. Such projects could represent new sources of income for tribes whose traditional subsistence-based lifestyles have been impacted by climate change. Renewable energy projects in …

Moving Military Energy “Behind The Fence:” Renewable Energy Generation On U.S. Defense Lands, Cameron E. Tommey

Washington and Lee Journal of Energy, Climate, and the Environment

The United States Department of Defense stands as the world’s single largest consumer of energy—domestic consumption alone by the Department amounts to nearly one percent of the United States’ total energy consumption and nearly eighty percent of the energy consumed by the Federal Government. Although a cadre of statutes, Executive Orders, and agency priorities set high goals for the introduction of renewable energy into the Department’s portfolio, it has historically failed to meet both its target for reducing facility energy use and its target for renewables integration. This Note suggests moving the Department’s energy production “behind the fence,” fixing technology …

Energy, Consumption, And The Amorality Of Energy Law, Lincoln L. Davies

Utah Law Faculty Scholarship

This essay explores the connection between energy consumption and energy law and policy. It argues that the energy law and policy system is configured to promote consumption, almost blindly, so that energy seems nearly infinite and invisible to consumers. This regulatory structure thus creates a kind of amorality for energy consumers. That is, when individuals choose to consume power, those decisions are divorced from their consequences. The essay relies on Pope Francis's encyclical on climate change, Laudato Si', to build its argument, and offers observations about the importance of COP21 in Paris to transform how energy is produced and consumed.

Clean Energy Federalism, Felix Mormann

Articles

Legal scholarship tends to approach the law and policy of clean energy from an environmental law perspective. As hydraulic fracturing, renewable energy integration, nuclear reactor (re)licensing, transport biofuel mandates, and other energy issues have pushed to the forefront of the environmental law debate, clean energy law has begun to emancipate itself. The emerging literature on clean energy federalism is a symptom of this emancipation. This Article adds to that literature by offering two case studies, a novel model for policy integration, and theoretical insights to elucidate the relationship between environmental federalism and clean energy federalism.

Renewable portfolio standards and feed-in …

Climate Change In The Courts: An Assessment Of Non-U.S. Climate Litigation, Meredith Wilensky

Sabin Center for Climate Change Law

In 2007 Arnold & Porter (later joined by the Sabin Center for Climate Change Law at Columbia Law School) compiled and proceeded to update a comprehensive collection of judicial decisions from U.S. courts concerning climate change. Largely drawing on that work, in 2012, Professor David Markell of Florida State University College of Law and Professor J.B. Ruhl of Vanderbilt University Law School published an empirical assessment of climate change litigation in the United States. Since 2011, the Sabin Center has maintained a compilation of climate change cases from outside the United States. Using the categorization methods employed in the Markell …

Save Birds Now Or Birds Later, Michael B. Gerrard

Faculty Scholarship

Due to a combination of climate change, habitat loss, water diversions, pesticides and other toxics, and other factors, the Earth is now facing the sixth mass extinction event in its geological history, on a par with the asteroid that killed the dinosaurs and much else.

The international goal for fighting climate change, as adopted and reaffirmed at several United Nations climate conferences, is to keep global average temperatures from rising more than two degrees Celsius above pre-industrial conditions. Even an increase at that level would have very negative consequences to humans as well as other species — the low-lying island …

Renewing Electricity Competition, David Schraub

David Schraub

“Gatting” The New Climate Treaty Right: Leveraging Energy Subsidies To Promote Multilateralism, Deepa Badrinarayana

Deepa Badrinarayana