Energy and Utilities Law Commons^™

Sustainable Consumption, Energy Policy, And Individual Well-Being, Daniel A. Farber

Vanderbilt Law Review

The United States is an exceptional place in many ways, not least in its consumption. The United States consumes a disproportionate share of the world's energy and resources, with a correspondingly large environmental footprint. At present, although we have been successful in creating economic wealth, well-being has lagged behind. Could the United States shift to a more sustainable path? Would that require an unacceptable sacrifice of social welfare? This Article argues that a shift really is possible, and that many of the steps to sustainability would actually make people better off even apart from their environmental benefits.

At present, we …

Good For You, Bad For Us: The Financial Disincentive For Net Demand Reduction, Michael P. Vandenbergh, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article examines a principal barrier to reducing U.S. carbon emissions — electricity distributors’ financial incentives to sell more of their product — and introduces the concept of net demand reduction (“NDR”) as a primary goal for the modern energy regulatory system. Net electricity demand must decrease substantially from projected levels for the United States to achieve widely-endorsed carbon targets by 2050. Although social and behavioral research has identified cost-effective ways to reduce electricity demand, state-of-the-art programs to curtail demand have not been implemented on a widespread basis. We argue that electric distribution utilities are important gatekeepers that can determine …

Supply And Demand: Barriers To A New Energy Future, Jim Rossi, Michael P. Vandenbergh, J. B. Ruhl

Vanderbilt Law School Faculty Publications

Like many fields, energy law has had its ups and downs. A period of remarkable activity in the 1970s and early 1980s focused on the efficiencies arising from deregulation of energy markets, but the field attracted much less attention during the 1990s. In the last decade, a new burst of activity has occurred, driven largely by the implications of energy production and use for climate change. In effect, this new scholarship is asking what efficiency means in a carbon-constrained world. Accounting for carbon has induced scholars to challenge the implicit assumption of the early scholarship that the price of energy …

Interstate Transmission Challenges For Renewable Energy: A Federalism Mismatch, Alexandra B. Klass, Elizabeth J. Wilson

Vanderbilt Law Review

It is impossible to talk about developing renewable energy resources in the United States without also talking about developing electric transmission infrastructure. More specifically, the transmission-planning strategies that may have worked in the past are no longer effective to integrate new sources of renewable energy into the transmission grid. Transmission lines were historically built to link large stationary power plants to nearby electricity demand centers like cities. For renewable energy, however, state mandates and policies are driving investment in wind-and to a lesser extent solar-energy, creating a need for new transmission lines to link these dispersed resources with electric load …

Building-Related Renewable Energy And The Case Of 360 State Street, Sara C. Bronin

Vanderbilt Law Review

This Article focuses on small-scale and midsized facilities and does not consider large-scale facilities, which tend to be located far from population centers. These facilities certainly raise pressing legal concerns, not least of which is how the energy sprawl they create should be managed. Indeed, siting (along with initial start-up financing) is a primary barrier to large-scale renewable energy. This Article sets large-scale facilities aside and focuses primarily on projects whose scale allows them to be incorporated into inhabited structures.

Blowing Hot Air: An Analysis Of State Involvement In Greenhouse Gas Litigation, Caroline Cecot

Vanderbilt Law Review

In Massachusetts v. EPA (2007), the U.S. Supreme Court interpreted the Clean Air Act ("CAA") to require the Environmental Protection Agency ("EPA") to regulate greenhouse gas emissions1 from motor vehicles if the EPA Administrator finds that the emissions endanger public health and welfare ("Endangerment Finding"). In December 2009, the Administrator made such an Endangerment Finding, obligating the EPA to work with the National Highway Traffic Safety Administration ("NHTSA") to develop average fuel economy and greenhouse gas emission standards for new light-duty vehicles. After issuing proposals and reviewing comments from the public, the two agencies announced their groundbreaking final regulation ("Tailpipe …

Becoming Positive About Being Carbon Neutral:Requiring Public Accountability Forinternet Companies, Alexandra L. Pichette

Vanderbilt Journal of Entertainment & Technology Law

Every year, worldwide dependence on Internet and other information technology services grows. In many ways, the increased use of electric energy is positive for the environment; after all, using the Internet to access a document uses less energy than printing and distributing that document. Nonetheless, Internet companies expend a great deal of energy when they, for example, fire up their servers to satisfy a search request. Studies show that Internet companies are disproportionately large energy consumers, and are responsible for a growing number of carbon emissions. As a result, environmentalists are becoming concerned about the effects of these emissions on …

Enforcing The Nuclear Nonproliferation Regime: The Legality Of Preventive Measures, Cristian Defrancia

Vanderbilt Journal of Transnational Law

Efforts to limit the proliferation of nuclear weapons and nuclear-weapons-related technology have increasingly involved economic, technological, and military forms of coercion implemented in an environment of low-level conflict. Coercive counterproliferation measures have included a range of actions, including targeted economic sanctions, industrial sabotage, cyber attacks, targeted killings, and military strikes. While the nonproliferation obligations of states are well-established under relevant treaties, state practice, and the international monitoring system of the International Atomic Energy Agency (IAEA), norms relating to the enforcement of those obligations are not clearly defined in legal instruments. This Article reviews the legality of prevention and enforcement measures …

Clean Energy And The Price Preemption Ceiling, Jim Rossi

Vanderbilt Law School Faculty Publications

Since the New Deal, federal preemption has precluded many state and local regulatory decisions that depart from wholesale electric prices determined under federal standards. Recent decisions treat prices that meet the federal standard as a preemption ceiling, which prohibits states from setting prices that exceed the wholesale price set in a competitive market. Both appellate courts and the Federal Energy Regulatory Commission - the primary federal agency responsible for the electric power sector - have recently applied a price preemption ceiling to clean energy policies. I argue in this Article that this price ceiling preemption approach hobbles the advancement of …

The One Percent Problem, Kevin M. Stack, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Parties frequently seek exemption from regulation on the ground that they contribute only a very small share to a problem. These one percent arguments are not inherently questionable; it can be efficient to exclude relatively small contributors. These arguments for exemption garner broad acceptance in part because they appeal to behavioral biases that induce individuals to discount or ignore small values. But when a regulatory problem can be solved only by regulating small contributors, accepting one percent arguments creates what we call the one percent problem. This Article shows that this general problem for regulation has particularly damaging effects on …

Regulation In The Behavioral Era, Lisa Schultz Bressman, Michael P. Vandenbergh, Amanda R. Carrico

Vanderbilt Law School Faculty Publications

Administrative agencies have long proceeded on the assumption that individuals respond to regulations in ways that are consistent with traditional rational actor theory, but that is beginning to change. Agencies are now relying on behavioral economics to develop regulations that account for responses that depart from common sense and common wisdom, reflecting predictable cognitive anomalies. Furthermore, political officials have now called for behavioral economics to play an explicit role in White House review of agency regulations. This is a significant development for the regulatory process, yet our understanding of how behavioral insights should alter regulatory analysis is incomplete. To account …

The Shaky Political Economy Foundation Of A National Renewable Electricity Requirement, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article argues that a national renewable portfolio standard (RPS) for electric power is not likely to advance its purported goals, nor is it likely to be adopted by Congress in its present proposed form. For one, a national RPS would have geographically disproportionate costs - those costs would be focused on a few, mostly natural resource-poor states, whereas the benefits of job growth and technological adoption in infant industries will be elsewhere. Second, the ability of firms to use operational flexibility regarding their nonrenewable fuel mix to substitute other nonrenewable energy sources for traditional fossil fuels undermines the purported …

The Limits Of A National Renewable Portfolio Standard, Jim Rossi

Vanderbilt Law School Faculty Publications

In this Commentary Article, Professor Rossi highlights some of the distributional and operational problems presented by a national renewable portfolio standard ("RPS") in electric power. He also offers several solutions to these problems as a way of advancing a cautionary defense of a national RPS. Ultimately, Professor Rossi concludes that addressing climate change will need to involve more systemic and larger scale modifications to regulation of the electric power industry, including addressing infrastructure issues such as transmission and carbon pricing.

Siting Transmission Lines In A Changed Milieu: Evolving Notions Of The "Public Interest" In Balancing State And Regional Considerations, Jim Rossi, Ashley C. Brown

Vanderbilt Law School Faculty Publications

This Article discusses how state public utility law presents a barrier to the siting of new high voltage transmission lines to serve renewable resources, and how states could approach its evolution in order to preserve a role for state regulators in a new energy economy in which renewable energy will play a significant role. The traditional approach to determining the "public interest" in siting transmission lines is well on its way to obsolescence. Two developments over the past fifteen years have begun to challenge this paradigm. First, policies at the federal level and in many states have encouraged increased competition …

Energy Efficiency Merits More Than A Nudge, Michael P. Vandenbergh, Thomas Dietz, Gerald T. Gardner, Jonathan Gilligan, Paul Stern

Vanderbilt Law School Faculty Publications

In their policy forum (Behavior and Energy Policy,” 5 March, p. 1204), H. Allcott and S. Mullainathan identify an important opportunity for reducing energy consumption inexpensively by applying behavioral science. Even larger opportunities can be realized, however, by combining behavioral interventions with other policy tools to address a wider range of behaviors.The field policy experiments cited by the authors use behavioral “nudges” to change home equipment use. The full potential of behavioral interventions comes from inducing people to adopt energy-efficient technology.

The Political Economy Of Energy And Its Implications For Climate Change Legislation, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Public choice themes have arisen throughout the history of U.S. energy regulation and continue to be relevant today, particularly with widespread discussion of deregulation and increased attention to climate change. This Article surveys how public choice themes are relevant to understanding a host of issues of importance to the electric power industry today, including the structure of the industry, the significance of wholesale markets, and the division of regulatory power between state and federal authorities. The Article highlights how an understanding of how public choice has contributed to these features of the electric power industry will prove important to the …

The Trojan Horse Of Electric Power Transmission Line Siting Authority, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Reform proposals pending in the U.S. Congress would increase federal and regional power to preempt states in siting transmission lines on order to allow the development of a high-voltage transmission grid for renewable resources. This Article recognizes the inadequacy of existing state siting authority over transmission, but takes a skeptical approach to expanding federal siting jurisdiction as a solution to the problem and argues that the over-attention to transmission line siting authority is a bit of a Trojan horse in the climate change debate. Specifically, because it ignores the more difficult issues of how the costs and benefits of transmission …

Establishing An Aggressive Legal Framework For The Future Of Wind Energy In Europe, Tyler Hagenbuch

Vanderbilt Journal of Transnational Law

Europe is the world's frontrunner in wind energy, and European governments are committed to aiding renewable energy entrepreneurs and investors. In April 2009, the EU passed a new Climate Action Directive. The Directive set goals for both increased use of renewable energy and decreases in greenhouse gas emissions. Despite this legislative success, the Climate Action Directive was widely criticized as insufficient and ineffective. Indeed, there are numerous substantive concessions given to industry in the emission reduction portion of the Directive. Dissenters argued the weaknesses of the emissions reduction Directive squandered the EU's opportunity to be a world leader in energy …

Using Economics To Fuel Responsible Energy Consumption Decisions, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This Article considers the determinants of individual consumption decisions and how these decisions might better account for environmental impacts. In addition to exploiting the quite direct forms of regulatory incentives to alter behavior, such as taxes and regulatory standards, policymakers should take advantage of the potential of informational remedies that can assist people in making more efficient choices for themselves and more responsible decisions for the environment. This Article considers as a case study ways in which current information provisions for household energy utilization might be improved. In exploring the potential role of more environmentally responsible consumption decisions, I do …

Individual Carbon Emissions: The Low-Hanging Fruit, Michael P. Vandenbergh, Jack Barkenbus, Jonathan Gilligan

Vanderbilt Law School Faculty Publications

The individual and household sector generates roughly 30 to 40 percent of U.S. greenhouse gas emissions and is a potential source of prompt and large emissions reductions. Yet the assumption that only extensive government regulation will generate substantial reductions from the sector is a barrier to change, particularly in a political environment hostile to regulation. This Article demonstrates that prompt and large reductions can be achieved without relying predominantly on regulatory measures. The Article identifies seven "low-hanging fruit:" actions that have the potential to achieve large reductions at less than half the cost of the leading current federal legislation, require …

Looking Beyond The Dabhol Debacle: Examining Its Causes And Understanding Its Lessons, Preeti Kundra

Vanderbilt Journal of Transnational Law

This Note analyzes foreign direct investment in India, looking into the investment troubles surrounding the Dabhol power project, India's largest foreign investment project to date. After providing an introduction to the mechanics of project finance and a backdrop to the Dabhol power project, the Note considers whether the Indian government's actions, specifically the use of the Indian legal system, constituted "total expropriation" and violations of international law. Additionally, this Note considers what systemic changes India can make in order to create a more investment-friendly environment in the post-Dabhol context.

The Carbon-Neutral Individual, Michael P. Vandenbergh, Anne C. Steinemann

Vanderbilt Law School Faculty Publications

Reducing the risk of catastrophic climate change will require leveling off greenhouse gas emissions over the short term and reducing emissions by an estimated 60-80% over the long term. To achieve these reductions, we argue that policymakers and regulators should focus not only on factories and other industrial sources of emissions but also on individuals. We construct a model that demonstrates that individuals contribute roughly one-third of carbon dioxide emissions in the United States. This one-third share accounts for roughly 8% of the world's total, more than the total emissions of any other country except China, and more than several …

Transmission Siting In Deregulated Wholesale Power Markets: Re-Imagining The Role Of Courts In Resolving Federal-State Siting Impasses, Jim A. Rossi

Vanderbilt Law School Faculty Publications

During most of the twentieth century, state and local regulatory bodies coordinated the siting or power plants and transmission lines. These bodies focused on two important issues: 1) the determination of need, so as to avoid unnecessary economic duplication of costly infrastructure; and 2) environmental protection, so as to provide local land use and other environmental concerns input on the placement of necessary generation and transmission facilities. With the rise of a deregulated wholesale power market, the issue of need is increasingly determined by the market, not regulators. Environmental concerns with siting, however, frequently remain contested - especially locally - …

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that …

Beyond Elegance: A Testable Typology Of Social Norms In Corporate Environmental Compliance, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

Social norms scholarship faces the challenge of becoming a mature discipline. Norms theorists have proposed several elegant, widely applicable theories of the origin, evolution and function of norms. For the most part, these theories have suggested that social norms can be viewed as a refinement to the behavioral assumptions of rational choice theory. Although this approach at least implicitly suggests that accounting for norms will improve the predictive capacity of rational choice models, the work must overcome substantial hurdles if it is to do so. The wide range of norms and mechanisms of norm influence on behavior complicate the 'formal …

The Electric Deregulation Fiasco: Looking To Regulatory Federalism To Promote A Balance Between Markets And The Provision Of Public Goods, Jim Rossi

Vanderbilt Law School Faculty Publications

The Essay uses three recent books - two by a historians and one by an economist - to address the electric power deregulation fiasco in the U.S. It argues that public law has an important role to play in deregulated markets. At least in part, the essay argues, public law is to blame for the failure of deregulation in California. At the same time, the Essay suggests, without clarification of jurisdictional responsibility and incentives in public law, adoption of effective competitive market reforms to the electric power industries will not succeed in the future.

The Caspian Sea Legal Regime, Pipeline Diplomacy, And The Prospects For Iran's Isolation From The Oil And Gas Frenzy, Faraz Sanei

Vanderbilt Journal of Transnational Law

The signing of the "deal of the century" in Bahu creating one of the first major Caspian energy consortiums between Azerbaijan and western oil companies signaled the beginning of a new era in world energy politics. The discovery of potentially huge oil and gas reserves in the newly-independent states of Azerbaijan, Kazakhstan, and Turkmenistan opened the door for western oil companies rushing to gain a competitive foothold in the new energy market. For Asia and the West this discovery provides a golden opportunity to ensure market stability through diversification of energy export routes. For the United States and its political …

Universal Service In Competitive Retail Electric Power Markets: Whither The Duty To Serve?, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses whether traditional service obligations can coexist with retail competition. A rationale often given for universal service obligations in the telecommunications industry is that universal service, by promoting interconnectivity, enhances network system benefits for all customers. While the network economies argument may have worked to sustain universal service in the face of telecommunications deregulation, it is tenuous when applied to the natural gas and electricity industries. Many reformers look askance at the duty to serve in competitive retail utility service markets, often pointing to conflict between retail competition in electricity and the duty to serve. This article argues, …

Lessons From The Procedural Politics Of The "Comprehensive" National Energy Policy Act Of 1992, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This Article examines the political and procedural history of the EP Act in order to arrive at some general lessons and recommendations regarding congressional formation of energy policy. At least two commentators on the EP Act praise it as the "second generation" of federal energy policy, based in laws that achieve "their mandates more by consensus than coercion." The EP Act's history, however, was far from smooth. Procedural obstacles, such as filibuster, inter-committee conflict, and inter-chamber conflict, led many to declare the EP Act dead on several occasions prior to its passage.

Redeeming Judicial Review: The Hard Look Doctrine And Federal Regulatory Efforts To Restructure The Electric Utility Industry, Jim M. Rossi

Vanderbilt Law School Faculty Publications

Recent policy-effect studies denounce judicial review for its adverse effects on agency decision-making. In its strong version, the policy-effect thesis suggests that judicial review has paralyzed innovative agency decision-making. Professor Rossi reacts to policy-effect studies, particularly as they have been used to attack the hard look doctrine in administrative law. He revisits Professor Richard Pierce's policy-effect description of the effects of judicial review of the Federal Energy Regulatory Commission (FERC). Professor Rossi's survey of recent FERC decision-making provides some support for an attenuated version of the policy-effect thesis but leads him to reject the strong version of the thesis. Much …