Energy and Utilities Law Commons^™

How Detrimental Is Transunion V. Ramirez, Really? Understanding The Impact On Environmental Law, Lauren Young

Washington Law Review

In 2021, the United States Supreme Court issued a controversial opinion with the potential to constrict the standing doctrine. TransUnion v. Ramirez appeared to alter standing’s “concrete harm” requirement, which would significantly restrict plaintiffs’ ability to invoke the jurisdiction of federal district courts. Building off its 2016 case, Spokeo v. Robins, the Court declared that intangible harms are only concrete when “plaintiffs have identified a close historical or common-law analog[] for their asserted injury.” The “common-law analog[]” required a “close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.” The Court mandated this requirement …

Community Empowerment In Decarbonization: Nepa’S Role, Wyatt G. Sassman

Washington Law Review

This Article addresses a potential tension between two ambitions for the transition to clean energy: reducing regulatory red-tape to quickly build out renewable energy, and leveraging that build-out to empower low-income communities and communities of color. Each ambition carries a different view of communities’ role in decarbonization. To those focused on rapid build-out of renewable energy infrastructure, communities are a potential threat who could slow or derail renewable energy projects through opposition during the regulatory process. To those focused on leveraging the transition to clean energy to advance racial and economic justice, communities are necessary partners in the key decisions …

Building Back Better: Investing In A Resilient Recovery For Washington State, Kevin Tempest, Jonah Kurman-Faber, Ruby Wincele

Washington Journal of Environmental Law & Policy

This article analyzes the potential jobs and community health benefits created by a sample Resilient Recovery Portfolio of investments in Washington State. This type of investment mindset can kick-start job growth, shared economic prosperity, cleaner air, and climate-resilient communities, thereby serving as a template for Building Back Better in Washington and elsewhere. A Resilient Recovery Portfolio supports over ten jobs per million dollars invested in clean transportation, forest conservation and ecosystem restoration, clean energy, water and energy efficiency, low carbon agriculture, and sustainable industry programs. By comparison, the state’s ten largest industries support 4.3 jobs per million dollars invested. This …

Energy Transitions And The Future Of Nuclear Energy: A Case For Small Modular Reactors, Carl Stenberg

Washington Journal of Environmental Law & Policy

The world is undergoing a global energy transition that will transform societies from fossil-fuel dependency towards clean energy solutions to meet future energy demand. An assumption is that nuclear energy, as a low-emissions energy source, could play a vital role in a clean, low-carbon future. Most reactors operating in the United States today are large custom-made reactors (LRs). Because of unfair risk- perceptions and the forced internalization of negative externalities, LRs and nuclear energy industry have long-struggled to compete with other energy sources.

The deployment of Small Modular Reactors (SMRs) make up for many of the inherent problems that exist …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Washington Law Review

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote low-carbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

Through The Looking Glass: How Review Of Natural Gas Exports Hides Environmental Effects In Plain Sight, Julia Michel

Washington Journal of Environmental Law & Policy

Often called the “Magna Carta” of environmental laws, the National Environmental Policy Act (NEPA) has made informed decision-making about the environment a pre-requisite for every major federal permit approval. By requiring federal agencies to systematically consider and disclose the environmental and health consequences of a course of action, NEPA also made federal decision-making public—”we know best” no longer suffices to allow agencies to make a decision without considering its environmental consequences. Yet NEPA’s mandate has been thwarted when it comes to natural gas exports. Without meaningful review of the consequences, federal agencies have already approved proposals to export an amount …

Why The Renewable Energy Credit Market Needs Standardization, Lisa Koperski

Washington Journal of Law, Technology & Arts

Renewable Energy Credits (RECs) are a relatively new financial instrument that help to stimulate the renewable energy market through capturing the premiums for environmental attributes associated with electricity, hopefully, encouraging investment in new renewable energy projects. However, lack of standardization in both the definition of RECs and the ways that RECs can be exchanged and administered has led to confusion on the parts of all concerned—the REC seller, the REC buyer, regulators, and the public at large—stymying investment in renewable energy projects and creating market inefficiency. Much like inconsistent accounting definitions or divergent requirements for providing investment guidance to consumers …

Building A Better Process: Improving Washington State's "Energy Facility Site Evaluation Council" Review Procedures To Better Encourage Public Participation, Gregory L. Porter

Washington Journal of Environmental Law & Policy

Washington State's Energy Facility Site Evaluation Council (EFSEC) is responsible for siting the state's energy facilities. The current process can frustrate robust public participation. One reason is that applicants must submit a single, comprehensive, application and these submissions have grown to enormous size and complexity. Local groups struggle with responding to these complex applications in time. Additionally, the council uses quasi-judicial adjudication where the applicant is represented by professional counsel, but local groups may lack the financial support to retain comparable counsel. Washington should learn from how New York overhauled its energy facility siting process in 2011. New York's Board …

Beyond A Zero-Sum Federal Trust Responsibility: Lessons From Federal Indian Energy Policy, Monte Mills

Articles

The federal government’s trust relationship with federally recognized Indian tribes is a product of the last two centuries of Federal Indian Law and federal-tribal relations. For approximately the last 50 years, the federal government has sought to promote tribal self-determination as a means to carry out its trust responsibilities to Indian tribes; but the shadows of prior federal policies, based largely on notions of tribal incompetence and federal paternalism, remain. Perhaps no other policy arena better demonstrates the history, evolution, and promise for reform of the federal trust relationship than Federal Indian energy policy, or the range of federal statutes …

Energy-Environment Policy Alignments, Todd S. Aagaarad

Washington Law Review

Energy law focuses on making energy widely available at reasonable cost, and environmental law focuses on preventing pollution. As a result of these differences in their respective orientations, the two fields often work incoherently and even in conflict. Historically, federal energy law and environmental law have attempted to manage their interrelationships by imposing negative constraints on each other: Energy policies of the Federal Energy Regulatory Commission (FERC) must comply with requirements set forth in environmental statutes, and the Environmental Protection Agency’s (EPA’s) statutes contain energy-related requirements and exemptions. More recently, however, FERC and EPA have begun developing policies that create …

An Analysis Of Federal Preemption And A Clean Fuel Standard In Washington State, Kirsten Nelsen

Washington Law Review Online

Transportation fuel is the greatest contributor to greenhouse gas emissions in Washington State. To curb emissions, Governor Jay Inslee has charged the Washington State Department of Ecology with developing a Clean Fuel Standard (“CFS”) proposal, which may be proposed in future legislative sessions. The goal of a CFS is to reduce the overall carbon intensity of transportation fuel. California enacted a similar program in 2010—the low carbon fuel standard—which was challenged in federal court. One issue that remains open is whether a state low carbon fuel standard would be preempted by the federal Clean Air Act. This Essay considers whether …

Exporting Coal, Importing Pollution: Can The Consumption Of Coal Be Ignored Under Nepa And Sepa Analysis When Burned Overseas?, Ross Taylor

Washington Journal of Environmental Law & Policy

The Millennium Bulk Terminal in Longview, Washington, is one of several proposed locations along the west coast of the United States for a large export facility, which would allow large-scale exportation of domestic coal to Asia. The Millennium Bulk Terminal proposal has garnered significant opposition, yet attention is only recently turning to the specific concern over greenhouse gas emissions associated with such a project. This concern stems not just from operation of the facility or transportation to and from it but from the possibly damaging amount of emissions that would result from the coal’s ultimate consumption in Asia. Implicated by …

Washington Environmental Law Year In Review, Abigail Pearl, Hunter Elenbaas

Washington Journal of Environmental Law & Policy

We are proud to present the first installment of the Washington Environmental Law Year in Review. This feature, which will be published annually in the Fall issue, will track significant developments in the environmental laws and regulations of Washington, and present a summary of these changes organized by topic.

The Columbia River Treaty's Canadian Entitlement: The Role Of Liberalized And Integrated North American Electricity Markets In A New Calculation, Kevin Kirkpatrick

Washington Journal of Environmental Law & Policy

The Columbia River Treaty between the United States and Canada may be terminated unilaterally by either nation beginning next year; this has brough attention within the Pacific Northwest and beyond to the 1964 agreement on river flows. Much of the discussion about updating the accord highlights important goals such as bettering the protection of fish and increasing public participation in ecosystem governance, but often neglects analysis of how electricity markets have changed over the past fifty years. This Comment, through an examination of key developments in utilities law and application of economic theory, attempts to parse principles that may prove …

The Bonneville Power Administration's Energy Curtailment Problem: An Analysis Of Its Redispatch Policy And Oversupply Protocol P And Their Impact On Washington's Wind Power Producers, Utility Companies, And Energy Independence Act, Drew Pearsall

Washington Journal of Environmental Law & Policy

The Bonneville Power Administration (BPA) is the primary transmitter of power in the Pacific Northwest. Charged with operating the federal dams on the Columbia River, the BPA also maintains and operates 15,000 miles of high-voltage power lines that transmit power produced by federal and non-federal power sources alike. Under federal law, the BPA must accept onto its transmission system power from non-federal sources in a manner that is fair, non-preferential, and does not discriminate against non-federal sources. Recently, strong snowpack and periods of heavy runoff have stressed the Federal Columbia River Power System and has led to a problem: the …

Growing Washington's Clean Energy Economy: A Report To The Washington State Legislature, University Of Washington Technology Law And Public Policy Clinic

Technology Law and Public Policy Clinic

Clean energy technologies have begun to transform the national economy. Growth in this sector is expected to be as high as four-fold, generating more than $2 trillion per year by 2020. Washington State has historically been a leader in the field by pursuing low-carbon energy policies, such as renewable portfolio standards and green building codes. But as competition increases, Washington needs to continue to improve to stay on top.

Increasing investment in distributed generation, energy efficiency, and conservation has been identified as the future for Washington State by the Legislature, two Governors (both Gregoire and Inslee), the Washington Department of …

Growing Washington's Clean Energy Economy, University Of Washington Technology Law And Public Policy Clinic

Technology Law and Public Policy Clinic

Clean energy technologies have begun to transform the national economy. Growth in this sector is expected to be as high as four-­‐fold, generating more than $2 trillion per year by 2020. Washington State has historically been a leader in the field by pursuing low-­‐carbon energy policies, such as renewable portfolio standards and green building codes. But as competition increases, Washington needs to continue to improve to stay on top. This report presents a package of proposals that address policy and technical barriers to developing Washington State’s clean energy economy.

Will China's 12th Five Year Plan Allow For Sufficient Nuclear Power To Support Its Booming Economy In The Next Twenty Years?, Patricia Blazey

Washington International Law Journal

A major part of China’s 12th Five Year Plan focuses on energy conservation and environmental protection. Its 12th Year Environmental Plan provides that China will increase its nuclear capacity by 30% from 2010 levels of 10.8 gigawatts to 43 gigawatts in 2014. Two questions arise from this plan. First, will enough energy be produced from other sources to supply the country’s energy needs or will there be the need for an expansion to its nuclear program? Second, are the locations of its nuclear power plants safe in light of the disaster at the Fukushima nuclear power plant in Japan following …

Malaysia's World Trade Organization Challenge To The European Union's Renewable Energy Directive: An Economic Analysis, Michael W. Meredity

Washington International Law Journal

Recent negotiations between Malaysia and the European Union (“EU”), aimed at establishing a free trade agreement, have come to a standstill, due in part to a policy implemented by the EU known as the Renewable Energy Directive. The Renewable Energy Directive grants a tax credit to renewable fuel sources that emit at least 35% less greenhouse gas than traditional fossil fuels. Malaysian officials have criticized the 35% level included in the EU policy because it grants a tax credit to rapeseed oil biofuel, produced mainly in Europe (which emits 38% less greenhouse gas than traditional fossil fuels), but does not …

Rebuttal In Defense Of The Klamath Hydroelectric Settlement Agreement, Michael A. Swiger, Sharon L. White

Washington Journal of Environmental Law & Policy

This article rebuts certain assertions made by Mr. Thomas Schlosser in a recent article entitled Dewatering Trust Responsibility: The New Klamath River Hydroelectric and Restoration Agreements. The Klamath hydroelectric dams are not causing degrading fish disease conditions in the Klamath Basin. Dewatering Trust Responsibility overlooks the effects of water diversions for agriculture, pollution from pesticides and industrial operations and habitat degradation from timbering, ranching and other human activities on current Basin conditions. Under the Klamath Hydroelectric Settlement Agreement and the Federal Energy Regulatory Commission license, PacifiCorp is taking extensive measures to protect aquatic resources in the Basin prior to …

Maintaing A Balance: Innovation In Power System Balancing Authorities, Malcolm Mclellan, Carol Opatrny

Washington Journal of Environmental Law & Policy

The introduction of new power generation, including intermittent resources, into the North American electric grid is exposing the fact that the traditional approach to resource integration is not necessarily cost-effective. At the forefront of analysis is the electric balancing authority; the functional structure that is responsible for maintaining the continuous balance of the demand for and supply of electric power. Electric balancing authorities perform this function according to standards developed by the North American Electric Reliability Corporation and the Federal Energy Regulatory Commission. These services can significantly affect the cost of power. Rather than blindly purchasing balancing services from the …

Rough Seas For Renewable Energy: Addressing Regulatory Overlap For Hydrokinetic Projects On The Outer Continental Shelf, Amanda Righi

Washington Journal of Environmental Law & Policy

Hydrokinetic energy harnesses the power of the oceans and generates renewable energy with a low carbon footprint. Because wave and tidal energy projects have not yet been initiated for the Outer Continental Shelf (OCS) and scientific knowledge of the effects on the ocean environment is uncertain, analysis under the National Environmental Policy Act is particularly important. However, overlapping jurisdiction on the OCS creates an inhospitable regulatory environment for hydrokinetic energy developers and marine ecosystem protection. This comment will analyze these overlapping and duplicative regulations and will make recommendations to streamline the environmental review process. Programmatic environmental impact statements, adaptive management …

Renewable Energy Integration Costs: Who Pays And How Much?, Paul Vercruyssen

Washington Journal of Environmental Law & Policy

Over the past decade major public policy concerns over the environment, national security, the economy, and climate change have converged, creating significant pressure to reform America’s energy system. The result has been a tremendous increase in the use of renewable energy sources with growth only expected to accelerate. This new development represents a radical shift for a nation whose electricity system was built to run on fossil fuels and hydroelectric dams. The electricity grid is a complex interconnected system requiring constant balancing of supply and demand. Using new intermittent technologies like solar and wind requires changes in grid management to …

Russian Floating Nuclear Reactors: Lacunae In Current International Environmental And Maritime Law And The Need For Proactive International Cooperation In The Development Of Sustainable Energy Sources, Douglas John Steding

Washington International Law Journal

During the second half of 2003, Russia announced plans to build barges carrying two nuclear reactors capable of supplying electricity to a town of fifty thousand people. Rapidly developing countries seem particularly interested in this proposal, as these reactors can meet their growing power needs. In addition, these floating nuclear reactors provide an alternative to coal, oil and natural gas, all sources of energy that contribute to global warming. These reactors, however, pose a substantial risk to the environment, particularly in light of Russia's lax environmental policies, and the design of the barges themselves make them susceptible to a wide …

Japanese Official Development Assistance And Energy Efficiency Projects, John Briggs

Washington International Law Journal

This comment examines the likelihood that the Japanese government will promote investments in energy efficiency programs in the developing world with funding from its Official Development Assistance (ODA). The Japanese Prime Minister has stated that Japan will support the promotion of sustainable development in the developing world, primarily through disbursements of its ODA funds. The need to promote investments in energy efficiency projects in the developing world is widely accepted by proponents of sustainable development. However, the likelihood that Japan will replace its current ODA energy program, which targets investments in energy generation, with a program that promotes investments in …

The Path Along The Ridge: Regional Planning In The Face Of Uncertainty, Kai N. Lee

Washington Law Review

The Northwest Power Act responds to the changing circumstances of electric power in the Pacific Northwest by defining policy directions and creating new institutional arrangements for regional power planning. The Northwest Power Planning Council (Council) is the agent of the region in meeting the challenges of planning under the Act. This paper discusses the conceptual framework of regional power planning—a task that confronts a degree of uncertainty and risk without historical precedent.

Darkness To Dawn? Generating And Conserving Electricity In The Pacific Northwest: A Primer On The Northwest Power Act, Roger D. Mellem

Washington Law Review

The Pacific Northwest's energy future is being shaped today by two institutions. The first is the Pacific Northwest Electric Power and Conservation Planning Council ("Planning Council") which was created by the Pacific Northwest Electric Power Planning and Conservation Act ("Northwest Power Act"). The other institution is the Bonneville Power Administration, ("BPA"), created forty-six years ago by Congress. Together the Planning Council and BPA are making crucial electrical energy decisions affecting the region's economy and environment. This article is intended to familiarize the reader with the structure of the region's electrical energy supply and demand as that structure has been altered …

Nonfirm Energy And Bpa's Industrial Customers, Eric Redman

Washington Law Review

There are several reasons why the Bonneville Powr Administration uses combination service rather than firm power service to meet the DSI top quartile demand: (1) if properly designed, combination service can provide adequate power quality for this portion of the DSI demand; (2) environmental impacts and costs to non-DSI consumers would be greater if firm resources, planned and installed for other loads, were increased by the amount of the DSI top quartile; and (3) although combination service imposes costs on the DSIs in the form of periodic interruptions, it saves money for all BPA customers by permitting BPA to take …

Unconscionability In A Commercial Setting: The Assessment Of Risk In A Contract To Build Nuclear Reactors, Steven Goldberg

Washington Law Review

Eighty-eight Pacific Northwest public utilities in 1976 contracted with the Washington Public Power Supply System ("WPPSS") for the construction of two nuclear power plants. The contract, or Participants' Agreement, contained a so-called "hell-or-high-water" clause which obligated the utilities to pay for the construction of the nuclear plants whether or not any electricity was ever produced. This article explores the possibility that such a clause might be unenforceable because of its unconscionability. The article demonstrates that, contrary to popular belief, unconscionability has often been found in non-consumer commercial settings. It considers several common avenues to finding substantive and procedural unconscionability and …

The Northwest Power Act And Reserved Tribal Rights, Allen H. Sanders

Washington Law Review

Since the implementation of the Act's fish protection provisions will undoubtedly affect the scope of protection provided to Indian tribes, the Act's ambiguities must be interpreted in a way that honors and preserves these reserved tribal rights. This article examines the substantial body of case law applicable to these reserved tribal rights, with particular attention to the major fish protection issues that may arise under the Act.