Energy and Utilities Law Commons^™

A Turquoise Mess: Green Subsidies, Blue Industrial Policy And Renewable Energy: The Case For Redrafting The Subsidies Agreement Of The Wto, Aaron Cosbey, Petros C. Mavroidis

Faculty Scholarship

Canada-Renewable Energy presented the WTO Panel and Appellate Body (AB) with a novel issue: at the heart of the dispute was a measure adopted by the province of Ontario whereby producers of renewable energy would be paid a premium relative to conventional power producers. Some WTO Members complained that the measure was a prohibited subsidy because payments were conditional upon using Canadian equipment for the production of renewable energy. The AB gave them right only in part: it found that a local content requirement had indeed been imposed, but also found that it lacked evidence to determine whether a subsidy …

Energy Versus Property, Michael Pappas

Faculty Scholarship

This article is the first to detail the balance legislatures and courts have struck between private property rights and the compelling public interest in energy production. By examining how property rights have consistently yielded to energy development from colonial times to the most recent decisions involving hydraulic fracturing (“fracking”), it identifies a coherent energy/property balance that has shaped property expectations to accommodate energy needs. The article then applies this insight to current disputes pitting aggressive renewable energy policies— such as nuisance immunity or mandatory installations on private property— against fundamental property expectations— the right to exclude and the right to …

The Tropics Exploited: Risk Preparedness And Corporate Social Responsibility In Offshore Energy Development, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

“Turn On The Lights” -Sustainable Energy Investment And Regulatory Policy: Charting The Hydrokinetic Path For Pakistan, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Energy Subsidies And The World Trade Organization, Timothy Meyer

Faculty Scholarship

In recent months the World Trade Organization (WTO) has seen increasing conflict over the rules for government support of the energy sector. Government subsidies for particular forms of energy have long influenced producers’ investment choices and consumers’ consumption patterns in ways that affect both international trade and the environment. Trade and environmental lawyers have thus closely watched the WTO’s efforts to develop rules on government support for the energy sector. This Insight outlines recent activity in the WTO on subsidies for both traditional fossil fuels and the renewable energy sector. It also discusses the difficulties posed by the increased application …

The Future Of Energy: The European And American Approaches -- The American Approach, Gina S. Warren

Faculty Scholarship

Presentation by Professor Gina S. Warren in which she provides an idea of the energy mix in the United States, where energy comes from, and what it is used for. Professor Warren then discusses U.S. energy policy and climate change proposals. She also covers numbers and indicators from an April 17, 2013 U.S. Department of Energy (“DOE”) report outlining projections in energy through 2040.

Smarter Finance For Cleaner Energy: Open Up Master Limited Partnerships (Mlps) And Real Estate Investment Trusts (Reits) To Renewable Energy Investment, Felix Mormann, Dan Reicher

Faculty Scholarship

This policy proposal makes the case for opening Master Limited Partnerships (MLPs) and Real Estate Investment Trusts (REITs) — both well-established investment structures — to renewable energy investment. MLPs and, more recently, REITs have a proven track record for promoting oil, gas, and other traditional energy sources. When extended to renewable energy projects these tools will help promote growth, move renewables closer to subsidy independence, and vastly broaden the base of investors in America’s energy economy.

Enhancing The Investor Appeal Of Renewable Energy, Felix Mormann

Faculty Scholarship

This article introduces an investor-oriented framework for the evaluation of renewable energy policy, applies these newly developed criteria to a qualitative comparison of the primary policy instruments, and offers recommendations to enhance the investor appeal of renewable energy in the United States.

The multi-trillion dollar task of scaling renewable energy technologies to mitigate climate change, ensure energy security, and create green jobs is one of the most daunting challenges of the twenty-first century. It is, in fact, too great a challenge for either the public or private sector to shoulder alone. Rather, public policy must catalyze private investment in renewable …

Mobilizing Public Markets To Finance Renewable Energy Projects: Insights From Expert Stakeholders, Paul Schwabe, Michael Mendelsohn, Felix Mormann, Douglas J. Arent

Faculty Scholarship

Financing renewable energy projects in the United States can be a complex, time consuming, and expensive process. Currently, most equity investment in new renewable power production facilities is supported by tax credits and accelerated depreciation benefits, and is constrained by the pool of potential investors that can fully use these tax benefits and are willing to engage in complex financial structures. For debt financing, non-government lending to renewables has largely been provided by foreign banks that may be under future lending constraints due to economic and regulatory conditions.

To discuss these and other renewable energy financing challenges and to identify …

Energy Policy: Past Or Prologue?, Michael J. Graetz

Faculty Scholarship

The United States was remarkably complacent about energy policy until the Arab oil embargo of 1973. Since then, we have relied on unnecessarily costly regulations and poorly designed subsidies to mandate or encourage particular forms of energy production and use. Our presidents have quested after an elusive technological “silver bullet.” Congress has elevated parochial interests and short-term political advantages over national needs. Despite the thousands of pages of energy legislation enacted over the past four decades, Congress has never demanded that Americans pay a price that reflects the full costs of the energy they consume. Given our nation’s economic fragility, …

Requirements For A Renewables Revolution, Felix Mormann

Faculty Scholarship

This Article identifies and analyzes the obstacles presently barring the rise of renewables, evaluates the role of the current policy favorite emission pricing, and offers design recommendations for a comprehensive U.S. renewables policy.

Successful climate change mitigation requires a timely shift to renewable sources of energy, such as sunlight, wind or tides, to decarbonize today’s high-carbon electricity sector. But market pull alone is not strong enough. This Article discusses the most widely cited economic barriers and identifies and evaluates additional obstacles related to the electricity sector’s regulatory framework.

Emission pricing is largely considered the most efficient policy to drive the …

Introductory Note To The International Centre For Settlement Of Investment Disputes: Aes Summit Generation Ltd. V. Republic Of Hungary, Charles O. Verrill Jr.

Faculty Scholarship

No abstract provided.

Harmonizing Climate Change Policy And International Investment Law: Threats, Challenges And Opportunities, Daniel M. Firger, Michael Gerrard

Faculty Scholarship

This chapter responds to a chorus of commentary about the potential for conflict between the international investment law regime and an array of national and international actions being undertaken to mitigate and adapt to global climate change. Contrary to conventional wisdom, while some climate-friendly regulations may indeed be facially incompatible with the obligations imposed on states by typical international investment agreements (IIAs), many climate policies – especially those related to clean energy finance and technology transfer – involve principles common to foreign investment law and are largely compatible with that regime. Moreover, pending the unlikely negotiation of a single global …

The End Of Energy: The Unmaking Of America's Environment, Security, And Independence – Chapters 11 And 12, Michael J. Graetz

Faculty Scholarship

With the permission of MIT Press, this document includes Chapters 11 and 12 from my 2011 book, The End of Energy: The Unmaking of America’s Environment, Security, and Independence. These two chapters discuss some of the history and merits of taxes, subsidies, and regulation (including cap and trade) as mechanisms to implement policies to curb greenhouse gases. In light of the renewed interest in and discussion of command and control regulations and carbon taxes, these chapters may be useful to readers who do not have the book. The bibliographic material relating to these chapters is contained in the book and …

Keep Hope Alive: Updating The Prudent Investment Standard For Allocating Nuclear Plant Cancellation Costs, Jonathan Kahn

Faculty Scholarship

As the United States is poised to enter a new era of nuclear power plant construction, it behooves us to revisit some of the controversies of the past and consider how best to deal with some of the major problems that arose once before and may confront us once again as we go down this path. A flurry of costly, protected, and complex disputes concerning the allocation of plant cancellation cost followed upon the collapse of the first boom in nuclear power plant construction during the 1970s and 1980s. These cases led to highly divergent results depending of the jurisdiction …

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

State Action Antitrust Exemption Collides With Deregulation: Rehabilitating The Foreseeability Doctrine, Elizabeth Trujillo

Faculty Scholarship

The state action antitrust exemption, also known as the state action immunity doctrine, is used by antitrust defendants to shield themselves against antitrust liability in instances where their anticompetitive conduct, if not under the aegis of state policy, would have been deemed a violation of federal antitrust law. Under the Midcal test, a court may grant state action immunity to a defendant if it is proven that the alleged anticompetitive conduct is pursuant to a clearly-articulated state policy and has been actively supervised by the state.

This paper evaluates the role, function, and definition of the state action exemption in …

Politics, Institutions, And Outcomes: Electricity Regulation In Argentina And Chile, William B. Heller, Mathew D. Mccubbins

Faculty Scholarship

Risk, whether market or political, is an important determinant of private investment decisions. One important risk, subject to control by the government, is the risk associated with the hold-up problem: governments can force utilities to shoulder burdensome taxes, to use input factors ineffectively, or to charge unprofitable rates for their service. To attract private investment governments must be able to make commitments to policies that are nonexpropriative (either to contracts that guarantee very high rates of return or to favorable regulatory policies). These commitments, of course, must be credible.

Judgments about the credibility of commitments to regulatory policies are based …

Book Reviews, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.

Control Of Population Densities Surrounding Nuclear Power Plants, A. V. Nero, C. H. Schroeder, W. W.S. Yen

Faculty Scholarship

In view of the requirement that the California Energy Resources Conservation and Development Commission must specify land-use/population density control measures to be used in the vicinity of nuclear power plants being granted land use, the possible forms of such measures are examined. Since these measures must maintain population densities below Nuclear Regulatory Commission criteria, if appropriate, NRC criteria for land use and population densities are given particular attention. In addition, a preliminary comparison of the cost of possible control measures with the reduced potential for damage to the public health and safety is made, yielding the result that control measures …

Disclosure Of Hidden Energy Demands: A New Challenge For Nepa, Michael B. Gerrard

Faculty Scholarship

The specialization of the American economy obscures the identity of the ultimate users of energy, even from themselves. As a result consumers remain ignorant of the amount of energy which they use, and of the efficiency of that usage. Direct personal use of energy in the United States, such as electricity and natural gas for home heating, cooking and lighting, and gasoline for private automobiles, accounts for only about one-third of national energy use. Usage by industry and government to provide for the intermediate and final goods and services, for which we as individuals ultimately pay through our purchases and …