<h4><em>Under review</em></h4>
<p>Energy is the capacity of some object or system to do work. As such, it is essential for all of the activities we do as individuals and as a society. While virtually all of the energy potential on the Earth can be traced back to the sun, we use a variety of sources to power our everyday needs from transportation to industrial production to keeping the lights on at home. According to the U.S. Energy Information Administration, the United States consumed approximately 98 quadrillion British thermal units (Btu) of energy in 2010. Of this total, 83% comes from fossil fuels such as coal, crude oil, and natural gas, and some 22% represents net energy imports (see U.S. EIA's <a href="http://www.eia.gov/totalenergy/data/monthly/pdf/flow/total_energy.pdf">… Flow</a> and ELI's <a href="http://www.eli.org/sites/default/files/images/d19_07graphic_map.jpg">En… Flows in the United States</a> graphics).</p>
<h3>Legal Regime for Energy Production and Distribution</h3>
<h5>Federal Regulation of Energy</h5>
<p>Like other areas of law related to the environment, energy production and distribution are governed by both federal and state law. However, federal authority is generally limited to a few areas, while most regulation occurs at the state level. At the federal level, the Federal Energy Regulatory Commission (FERC) is responsible for regulating interstate transmission and transportation of electricity, natural gas, and oil, as well as handling permits for constructing hydroelectric dams and liquefied natural gas (LNG) terminals. A separate entity, the Nuclear Regulatory Commission (NRC), is responsible for regulating nuclear power generation.</p>
<p>The federal government began regulating energy with the Federal Power Act of 1920, which has been amended several times in the past century. In 1977, Congress established the <a href="#" title="Although the Department of Energy (DOE) is a cabinet-level agency of the federal government, it does not directly regulate energy production or consumption in the United States. Regulation is generally left to FERC, NRC, and state authorities. The DOE’s focus as an agency is on promoting science and technology to address energy needs and addressing nuclear security and cleanup issues. For example, the DOE funds advanced research projects on new energy sources and oversees the Energy Star energy efficiency program in conjunction with the EPA. DOE website - energy.gov; Energy Star website - energystar.gov; DOE Advanced Research Projects Agency (ARPA-E) - arpa-e.energy.gov.">Department of Energy</a> (DOE and reorganized energy regulation by creating FERC. FERC is governed by a five-member Commission and employs administrative law judges (ALJs) in its internal process for resolving disputes. Commissioners are appointed by the President for staggered 5-year terms, but as an independent agency, FERC decisions are not reviewed by the President or any cabinet agency, but instead are reviewable in federal courts in accordance with the Administrative Procedure Act.</p>
<h5>State public utility commissions</h5>
<p>At the state level, <a href="http://www.naruc.org/Commissions/CommissionsList.cfm&quot; target="_blank">state public utility commissions</a> are generally responsible for regulating production and distribution of electricity. Although federal authorities regulate interstate transmission of electricity, state regulation and electricity pricing can vary significantly. Electricity distribution is a good example of a “natural monopoly” in that it would be impractical to build overlapping distribution systems due to high cost. While the majority of electricity sold to end users (residential, commercial, etc.) in the U.S. grid is distributed by privately owned entities, state commissions regulate these utilities in order to ensure fair and reasonable pricing. States may, for example, regulate prices by supervising auctions between electricity suppliers (i.e., generators) and distributors.</p>
<h5>Regulation of Energy Transmission and Distribution</h5>
<p>The electricity “grid” includes three components: electricity generators, transmission networks, and electricity distributors (i.e., utilities that provide electricity to end users). Over the past century, the trend has been toward interconnection of transmission lines in an effort to lower costs and spread out electricity loads, although occasional large blackouts, such as the Northeast Blackout of 2003, illustrate the potential risks of this approach. Electricity transmission in the United States is divided into <a href="http://www.npr.org/templates/story/story.php?storyId=110997398&quot; title="NPR, Visualizing the U.S. Electric Grid">three independent transmission grids</a>—the Western Interconnect, which generally covers the area west of the Rocky Mountains; the Texas Interconnect, which covers most of the state of Texas, and the Eastern Interconnect, which includes the rest of the country. Regional reliability councils (one each in the Western and Texas Interconnects, and six in the Eastern Interconnect) oversee monitoring and compliance with standards designed to ensure the reliability of electricity in the U.S. <a href="http://www.nerc.com&quot; title="Under the Energy Policy Act of 2005 (EPAct), FERC granted authority to a non-governmental entity, the North American Electric Reliability Corporation (NERC), to issue and enforce binding reliability standards.">grid</a><a href="#_msocom_5"></a>.</p>
<p>Since the 1970s, federal regulation has encouraged setting up competitive markets for electricity generators by requiring open access to transmission networks. In addition, for roughly two-thirds of the population of the United States, electricity transmission is now operated by independent system operators (ISOs) or regional transmission organizations (RTOs) that are independent of utilities and electricity generators. In other areas, vertically integrated utilities or government-owned or cooperative enterprises control transmission.</p>
<h5>Renewable Energy</h5>
<p>Concerns about pollution, climate change, and the finite nature of fossil fuel and nuclear power resources have led to demand for and development of energy from renewable resources. The most widespread form of renewable electricity generation is hydroelectric power, which is derived from energy that is replenished by the Earth’s water cycle. However, because hydroelectric dams have an impact on land and water environments, and because dams can only be efficiently located in a limited number of places, some newer laws have been designed to encourage electricity generation from other renewable sources, such as wind, tides, geothermal energy, solar energy (photovoltaic cells, concentrated solar power, and solar thermal energy), landfill gas, etc.</p>
<p>Many of these renewable sources present practical challenges. First, renewable electricity must be connected into existing transmission and distribution grids. Many renewable sources, particularly wind and solar, tend to be most plentiful in areas that are far from major population centers. Offshore sites provide potential wind resources closer to cities but are generally more expensive to develop and carry additional environmental risks. Second, because electricity cannot be easily stored—it must be transmitted and used immediately as it is generated—existing grids must be adapted in order to handle periodic generation. For example, solar energy is strongest during the middle of the day and varies according to seasons and weather conditions; these patterns generally do not match up with peak electricity demand periods that occur in the morning and evening as people wake up or return home from work. As a result, growth in renewable electricity does not necessarily translate to possibilities for reducing conventional capacity, because electricity providers must still turn to fossil fuel sources to meet demand at peak times.</p>
<p>As of 2012, 31 states and the District of Columbia have some form of mandate for renewable energy, although these vary widely both in the level of the mandate as well as the types of energy sources that can be counted toward the total. Most states use a percentage target for the state’s renewable portfolio by a certain year; a few states use targets measured in megawatts of capacity that the state must develop. An additional 7 states have non-binding renewable portfolio <a href="http://www.c2es.org/us-states-regions/policy-maps/renewable-energy-stan…; title="For a list and comparison of state renewable energy requirements, see Center for Climate and Energy Solutions, Renewable &amp; Alternative Energy Portfolio Standards. ">goals</a>.</p>
<p>In many states, consumers can choose to pay an additional premium or opt to purchase electricity (distributed by the same utilities) from suppliers that use renewable sources. For example, in Maryland, many companies offer 100% renewable “green” electricity plans which are available for a higher price than conventional electricity <a href="http://webapp.psc.state.md.us/ecm/home.cfm">supplies</a>.</p&gt;
<h3>Environmental Impacts of Energy</h3>
<p>What does energy have to do with the environment? Energy and environmental law are often interrelated because energy production and consumption represent a significant portion of human impact on air, water, and land resources, as well as the Earth’s climate.</p>
<h5>Air</h5>
<p>Fossil fuels store useful energy potential in bonds between carbon atoms. Combustion reactions break these bonds, releasing energy, as well as carbon dioxide and water vapor as byproducts. However, when combustion is incomplete or impurities are present in the fuel, the reaction also leads to the emission of various other molecules that can adversely affect human health and the environment. Fossil fuels—especially coal in electricity generation and gasoline for transportation—are the biggest source of conventional air pollutants, such as sulfur dioxide (SO<sub>2</sub>), nitrous oxides (NO<sub>x</sub>), and carbon monoxide (CO). Fossil fuel burning also releases hazardous and toxic air pollutants; for example, coal-fired electricity generation accounts for over half of <a href="http://www.epa.gov/mercury/about.htm">mercury emissions in the United States</a>.</p>
<p><a href="http://www.eli.org/keywords/air-1">Emissions from energy production and consumption into the air are regulated under the Clean Air Act (CAA)</a>. Under the CAA, the EPA establishes nationwide air quality standards for each air pollutant and oversees state regulatory plans designed to meet those standards. Environmental authorities conduct reviews of major sources of air emissions, including power plants, in order to prevent significant deterioration of air quality or bring areas toward attainment of quality standards. In addition, Title II of the CAA regulates mobile sources of emissions, such as motor vehicles. Mobile source regulation includes standards for motor vehicle engine emission control systems as well as requirements for fuels and fuel additives.</p>
<p>Renewable energy sources can have additional or different air quality impacts. While wind energy does not produce any emissions of air pollutants, wind turbines can create air disturbances, noise, or hazards for birds and bats. Burning renewable fuels, such as ethanol, can reduce air pollutant emissions, but critics argue that gasoline blended with too much ethanol can interfere with emissions control systems in some automobiles and actually lead to higher emissions.</p>
<h5>Water</h5>
<p>Energy production has an environmental impact on water resources both in terms of the quantity of water used, as well as effects on water quality, in the form of pollution or discharges that increase water temperature.</p>
<p>Many forms of energy production methods use water in various stages. Electricity generators typically use steam turbines to transform energy from the burning of fossil fuels such as coal into electricity that can be used for residential, commercial, industrial, or transportation purposes. Nuclear, fossil fuel, and concentrated solar power plants require methods for cooling plant equipment and/or cooling steam; this is often accomplished by cycling through large quantities of water, although technologies for “dry cooling” exist as well. In the United States, electricity generation accounts for roughly half of all water withdrawals. While some water used, especially in coastal areas, is saltwater, the majority comes from surface freshwater in lakes or <a href="http://ga.water.usgs.gov/edu/wupt.html&quot; target="_blank" title="USGS, Thermoelectric Power Water Use">rivers</a>. Thus, energy production and consumption can have a tremendous impact on water availability in arid climates or other areas where freshwater resources are scarce.</p>
<p>In addition to the quantity of water used, energy production and electricity generation can affect the quality of water used or in surrounding areas. For fossil fuel and nuclear energy, processes for extracting raw materials, such as mining and drilling, can discharge pollutants into nearby waterways. Power plants, after using water to cool equipment or in other stages of electricity generation, must discharge the water back into oceans, rivers, or lakes. Excess heat from power-generating reactions increase the temperature of the water as it is discharged, which in turn raises the temperature of the overall aquatic environment. Significant temperature increases can make surrounding areas inhospitable for fish and other animals or plants.</p>
<p><a href="http://www.eli.org/keywords/water">The Clean Water Act</a> regulates the environmental effects of energy production on water resources. Under the Act, energy production facilities must obtain permits that are regulated by the EPA and state authorities for any discharges they make into waterways subject to the Act’s jurisdiction. One current issue is the EPA’s proposed standards for the design and location of cooling water intake structures under Section 316(b) of the Act (See EPA's <a href="http://water.epa.gov/lawsregs/lawsguidance/cwa/316b/">webpage</a&gt; and Cornell's <a href="http://www.law.cornell.edu/uscode/text/33/1326">webpage with the statute</a>).</p>
<h5>Land</h5>
<p>One key issue in energy production is siting—that is, determining where power plants or other facilities should be located. Energy generating facilities can have a direct environmental impact on existing ecosystems, such as wetlands, that occupy the land converted for use in energy production. Hydroelectric power plants can disturb upstream land by creating reservoirs as well as downstream land by controlling or limiting water flow and changing water temperature. Nuclear power plants have the potential to disturb surrounding land in the event that radioactive material escapes and generate radioactive waste that must be carefully transported and stored.</p>
<p>For other types of facilities, environmental factors to be considered include air and water quality in surrounding areas that may be affected by emissions or discharges. Land impacts for fossil fuel energy also include disturbances associated with resource extraction, such as land used for mining coal and drilling for natural gas or oil. Siting for electricity generation or other facilities can also raise issues of environmental justice if it causes a group of people to bear a disproportionate burden of negative effects that result from proximity to those facilities.</p>
<p>When the federal government is involved in developing an energy project, the <a href="http://www.eli.org/keywords/natural-resources">National Environmental Policy Act (NEPA)</a> requires a review of the project’s impacts on the environment, including consideration of potential alternatives. Impacts on wetlands are governed by the <a href="http://www.eli.org/keywords/water">Clean Water Act</a>.</p>
<h5>Waste</h5>
<p>Energy production raises specific issues regarding the handling and treatment of waste. Nuclear power generation produces extremely hazardous radioactive byproducts that must be safely handled, transported, and stored for long periods of time. The NRC is responsible for regulating the processing of radioactive source material, such as uranium, as well as radioactive byproducts, although many states have agreements with the NRC under which they exercise their own regulatory authority (see NRC's <a href="http://www.nrc.gov/about-nrc/radiation/protects-you/reg-matls.html">Reg… of Radioactive Materials</a> and <a href="http://www.nrc.gov/about-nrc/state-tribal/agreement-states.html">Agreem… State Program</a> webpages). The EPA, on the other hand, sets standards for radioactive air emissions and drinking water contamination.</p>
<p>One current controversy in managing waste from energy production involves coal combustion residuals, or coal ash—a byproduct of coal-fired power plants. Coal ash contains a variety of toxic compounds and can present a health concern if it leaches into groundwater or escapes from storage sites. A major spill of coal ash in Tennessee in 2008 drew attention to the issue, and in 2010, the <a href="http://www.epa.gov/osw/nonhaz/industrial/special/fossil/ccr-rule/index…; title="EPA page on coal ash.">EPA proposed regulating coal ash</a> under the <a href="http://www.eli.org/keywords/toxic-substances#rcra">Resource Conservation and Recovery Act</a> (RCRA), either under RCRA’s hazardous waste provisions, which would give EPA more extensive authority, or under the non-hazardous waste provisions.</p>
<h5><a href="http://www.eli.org/keywords/climate-change-0">Climate</a></h5&gt;
<p>In advanced industrialized economies such as the United States, energy consumption is the main driver of greenhouse gas (GHG) emissions that contribute to global climate change. Fossil fuel combustion (including transportation and electricity generation) accounts for nearly three-fourths of U.S. emissions of the most significant GHG, carbon dioxide (<a href="http://www.epa.gov/climatechange/Downloads/ghgemissions/US-GHG-Inventor…; target="_blank" title="EPA, 2012 US GHG Inventory, Executive Summary.">CO<sub>2</sub></a>). While the United States does not have a comprehensive national plan for mitigating climate change or addressing GHG emissions, federal and state governments have developed a number of regulatory programs designed to limit the climate impacts of energy generation and consumption.</p>
<p>Since 2009, when the EPA issued its endangerment finding regarding CO<sub>2</sub>, the Agency has taken steps toward regulating <a href="http://www.eli.org/keywords/climate-change-0">GHG emissions under the Clean Air Act</a><a href="#_msocom_21"></a>. Regulating GHGs under the CAA includes mobile sources as well as stationary sources, such as power plants, that emit large quantities of CO<sub>2</sub>. Setting standards for stationary sources will be challenging because the CAA uses technology-based standards for setting emissions levels. Unlike other air pollutants, CO<sub>2</sub> is an intended and necessary product of combustion, which means that CO<sub>2</sub> emissions cannot be “reduced” in the same way that SO<sub>2</sub> can, for example, by eliminating impurities or scrubbing flue gas at power plants; rather, reducing emissions will likely require efficiency improvements or some method of CO<sub>2</sub> capture for storage or reuse.</p>
<p>In addition, the Energy Policy Act of 2005 and the Energy Independence and Security Act of 2007 added renewable fuels mandates to the CAA with the goal of reducing net CO<sub>2</sub> emissions from the transportation sector. The <a href="http://www.epa.gov/otaq/fuels/renewablefuels/index.htm">Renewable Fuels Standard</a> (RFS) program requires fuel suppliers to incorporate a minimum quantity of renewable, biomass-based ethanol or biodiesel into gasoline supplies.</p>
<h3>Bibliography</h3>
<p>National Association of Regulatory Utility Commissioners – <a href="http://www.naruc.org&quot; target="_blank">www.naruc.org</a></p&gt;
<p>North American Electric Reliability Corporation (NERC) – <a href="http://www.nerc.com&quot; target="_blank">www.nerc.com</a></p&gt;
<p>Electric Power Research Institute – <a href="http://www.epri.com&quot; target="_blank">www.epri.com</a></p&gt;
<p>Edison Electric Institute – <a href="http://www.eei.org&quot; target="_blank">www.eei.org</a></p&gt;
<p>-Public Policy Advocacy page – information on federal and state legislation and regulation – <a href="http://www.eei.org/whatwedo/PublicPolicyAdvocacy/Pages/default.aspx&quot; target="_blank">http://www.eei.org/whatwedo/PublicPolicyAdvocacy/Pages/default.aspx</a>…;
<p>U.S. Energy Information Administration – <a href="http://www.eia.gov&quot; target="_blank">www.eia.gov</a></p&gt;
<p>Federal Energy Regulatory Commission (FERC) – <a href="http://www.ferc.gov&quot; target="_blank">www.ferc.gov</a></p&gt;
<p>MIT Study on the Future of the Electric Grid – <a href="http://web.mit.edu/mitei/research/studies/documents/electric-grid-2011/…; target="_blank">http://web.mit.edu/mitei/research/studies/documents/electric-grid-2011/…;
<p>NPR, Visualizing the U.S. Electric Grid – <a href="http://www.npr.org/templates/story/story.php?storyId=110997398&quot; target="_blank">http://www.npr.org/templates/story/story.php?storyId=110997398</a></p&gt;

Renewable Practitioners Grapple With Federal Species Protections
Author
Ethan Shenkman - Arnold & Porter
Arnold & Porter
Current Issue
Issue
5
Ethan Shenkman

Interior Secretary Ryan Zinke has announced that offshore wind will play a “big role” in the “America-First Offshore Energy Strategy.” With an estimated over 2,000 gigawatts of wind resource capacity in U.S. waters, offshore wind facilities could be critical in securing energy independence and reducing carbon emissions. As renewable energy practitioners are keenly aware, however, the siting and permitting of wind facilities often must run a gauntlet of environmental reviews and species protections laws. While these laws serve extremely important functions in protecting biodiversity, they need to be reconciled with the new imperative to expand our renewable energy infrastructure.

Central for wind energy facilities is risks to birds and bats. Though these risks are negligible compared to other sources of mortality (such as collisions with buildings), the wind industry has long taken a role in species conservation, collaborating on studies, siting guidelines, and voluntary protocols, and developing innovative technologies. However, some deaths are unavoidable.

The Migratory Bird Treaty Act is celebrating its centennial, yet its meaning remains far from settled. Unless authorized by regulation, the MBTA makes it unlawful to “take” migratory birds. Courts have long disagreed about what take entails. The Fifth, Eighth, and Ninth Circuits have held that the MBTA prohibits only intentional take such as hunting. But the Second and Tenth Circuits, and importantly the Fish and Wildlife Service, have previously determined that the MBTA also prohibits incidental take such as typically occurs with a wind facility.

Then the Justice Department brought a high-profile criminal enforcement action under the MBTA against a wind energy facility in 2013. The FWS began regulations to authorize incidental take two years later. And the Interior Department solicitor concluded that the MBTA prohibits direct incidental take three days before the Obama administration ended.

The legal pendulum soon swung the other way. The Trump administration’s DOI solicitor concluded that the MBTA does not prohibit incidental take. The FWS further cemented this position in guidance issued in April. The story is far from over, however, as six environmental groups filed suit challenging the solicitor’s opinion in the Second Circuit, which has long held that MBTA prohibits incidental take.

The MBTA is not the only law impacting wind developers. The FWS has interpreted the Bald and Golden Eagle Act to prohibit incidental (or nonpurposeful) take, and issued revised regulations authorizing incidental take in 2016. Moreover, where federal agency action is required for a wind facility, practitioners must grapple with a host of measures. Executive Order 13186 directs federal agencies to avoid and minimize impacts to migratory birds, including those resulting in “unintentional take.” The National Environmental Policy Act has its well-known restrictions on federal actions, including permitting. And the Endangered Species Act prohibits federal agencies from jeopardizing the continued existence of threatened and endangered species or adversely modifying critical habitat. Even where federal agency action is not required, wind developers may need to obtain permits for incidental take of threatened and endangered species under the ESA’s Section 10.

Navigating these requirements can extend development timelines, but FWS has already begun experimenting to find efficiencies in the ESA and NEPA processes. For example, FWS recently issued a notice of intent to prepare a programmatic environmental impact statement related to permits authorizing incidental take of two endangered migratory birds and an endangered bat from four wind energy projects in Hawaii. This approach to expediting review could ultimately be replicated for both land-based and offshore wind facilities.

Practitioners must be attuned to developments at the state and local as well. As Mike Speerschneider, senior director of the American Wind Energy Association, acknowledges, “There is a lot of growth going on right now in the midwestern states, and the state resource agencies are taking notice.” This is particularly true with respect to impacts to non-federally listed but state-protected bat species. In some cases, state regulators are considering operational protocols like curtailment and increasing cut-in speeds that create additional challenges for wind facilities, with uncertain benefits.

According to Speerschneider, the wind industry “wants to work with the administration and agencies to develop reasonable permitting programs that involve avoidance, minimization, and mitigation measures that are commensurate with the level of impacts that result from wind farms.”

The author thanks summer associate Emily Orler for her contributions to this column.

Renewable practitioners grapple with federal species protections.

Take on Tackling Carbon Emissions by Charging True Cost to Society
Author
Kathleen Barrón - Exelon Corporation
Exelon Corporation
Current Issue
Issue
5
Kathleen Barrón

Recently, the Federal Energy Regulatory Commission and regional grid operators have considered how to address the effects of state clean energy policies on electricity markets. These actions have highlighted the challenges in reconciling state preferences for low-carbon generation with the least-cost dispatch system used in competitive markets.

Often states incentivize clean generation with technology-specific procurement requirements, which have increased the supply of preferred zero-carbon capacity. However, this approach can overlook opportunities to reduce emissions by switching from carbon-intensive sources to sources that emit less. An alternative is to price the cost of the unwanted pollution into the market and use the power of competition to find the most effective solution.

In a 2017 column, I provided a survey of state efforts to price carbon in the absence of federal action. As these efforts move forward and calls for federal action resume, an example worth examining more closely is the New York Independent System Operator’s effort to price carbon emissions directly in wholesale electricity markets.

Using both logic and innovation, NYISO has established the Integrating Public Policy Task Force to develop a straw proposal for how the state could accomplish this. The charge to NYISO is simple, elegant, and potentially revolutionary: harmonize the state’s ambitious energy and environmental public policies with wholesale markets. In other words, NYISO is evaluating whether and how competitive markets can support rather than impede New York’s ambitious clean-energy goals, including a 40 percent reduction in carbon dioxide emissions by 2030.

NYISO’s proposal is, on its face, quite simple: charge carbon-emitting generation resources their true costs of emissions, and dispatch generators according to their real marginal costs. The elements of the proposal are establishing a carbon price, integrating it into generation dispatch, and collecting the revenue and returning it to customers. However, there are important policy decisions underlying each step.

An initial decision is to settle on a value of avoided carbon emissions. In another proceeding establishing a clean-energy standard, the state already formulated the social cost of carbon, which provides NYISO with a clear statement of policymakers’ value of avoided emissions. Once the SCC is established, each individual generator would add it to their other costs of generation to calculate their energy bids. Higher-emitting resources would reflect higher costs, and zero-emitting resources would reflect lower costs, thus supporting New York’s goal of achieving lower emissions.

For example, if the SCC were $50 per ton, the unit-specific value for a coal plant would be approximately $40 per megawatt-hour. Thus, if its bid before the carbon adder were $20 per megawatt-hour, its bid would now be $60, and it would run and emit much less.

Importantly, unlike under other regulatory options, the coal plant would not be prevented from running if needed to preserve grid reliability; however, the true cost of doing so would be known and the plant would only be called on after less-polluting options were exhausted. This solution will reduce emissions over time and send an investment signal for cleaner generation. As a variable cost, a carbon adder integrates well with the current energy market framework. This is analogous with NYISO’s current practice of dispatching units that have paid a variable carbon cost via allowances under the multi-state northeastern Regional Greenhouse Gas Initiative.

A key difference from RGGI, however, is the need to address emissions leakage caused by import and export inequities with neighboring regions or control areas. Often short-handed as border mechanisms, these policies need to be established to ensure higher-emitting, out-of-state resources do not supplant in-state resources, leading to a shifting of generation and emissions to states with a lower assessed cost of carbon. This leakage would lead to an export, rather than reduction, of emissions. To prevent this, NYISO is evaluating several options to effectively charge imports the same carbon price faced by in-state generation and conversely, credit exported electricity.

Given the urgency of the climate challenge, we commend NYISO for undertaking this nation-leading effort to properly valuing generators’ environmental attributes and achieving New York’s carbon reduction goals. The climate can’t wait.

The author is grateful for the assistance of Kathy Robertson in developing this column.

Take on tackling carbon emissions by charging true cost to society.

The King Is Dead
Author
Patrick McGinley - West Virginia University Law School
West Virginia University Law School
Current Issue
Issue
5
The King Is Dead

“My administration is putting an end to the War on Coal. . . . I made them this promise: we will put our miners back to work.” President Donald Trump’s war meme first emerged as a political strategy to defeat candidate Barack Obama during the 2008 presidential election. After Obama prevailed in that contest, coal and power industry executives, lawyers, lobbyists, and coal-friendly politicians joined in a concerted effort to stall the administration’s regulatory initiatives aimed at scaling back coal mining and coal-fired power plant pollution.

Tens of millions of dollars from coal interests were channeled to support print, radio, and television advertisements claiming the Obama EPA and Interior Department were engaged in job-killing and economy-snuffing. For example, Friends of Coal, an arm of a West Virginia coal trade association, warned, “Mining is a way of life and if it is stopped by the EPA it will kill the local economies and thousands will lose jobs!” The National Mining Association claimed in a radio ad that EPA’s Clean Power Plan regulation of coal power plant emissions would cause consumer electric bills to jump by 80 percent. The Washington Post’s fact checker column found the ad to be “a case study of how a trade group takes a snippet of congressional testimony and twists it out of proportion for political purposes.”

Robert Murray, CEO of leading producer Murray Energy, used War on Coal rhetoric, declaring, “We don’t have a climate change problem. It is not real and not scientifically based. It’s a theology. It’s politics. And it’s an agenda.” EPA is “packed . . . with radical environmentalists, never created a job in their lives, never produced anything for society, but sat there writing rules all day,” Murray charged.

Fact-bereft slogans and sound bites aside, agencies administering and enforcing environmental laws regulating mining operations and power plants definitely have an agenda — one mandated by Congress via statute. It is regulatory agencies’ fundamental responsibility to limit the negative economic and social externalities of industrial pollution.

When a coal company discharges acid mine drainage or selenium, contaminating a watershed, or a power plant emits mercury, acid precipitation, or climate changing air pollutants, the per-ton price of coal excludes these health, esthetic, social, and environmental costs. Such regulatory actions actually promote healthy energy market competition. Absent effective regulation, companies whose mining waste is dumped into streams and power companies who burn the fuel and whose stacks belch greenhouse gases pay nothing to use local communities and the environment generally to dispose of their waste.

The industry’s attack on Obama regulations represented its time-tested strategy of denial, or minimization, of the externalized costs of coal. The anti-regulatory War on Coal campaign is neither new, nor uncharacteristic of the mineral’s promoters. For decades the industry touted the fuel as America’s most affordable, dependable energy resource. More recently, advocates disingenuously promote “clean coal” as an essential element of national security and the reliability of the U.S. electricity grid.

There is a measure of genuineness to the affordability claim — prices remained artificially low for generations because they failed to reflect the true costs of the pollution caused by mining and burning the fuel. Mining did put bread on tables, provided a decent living, and contributed substantially to local economies when the coal market was in one of its periodic boom phases. But it is also indisputable that, for more than a century, coalfield communities have been plagued by a market-controlled, debilitating economic cycle of boom and bust. There has never been broad-based prosperity in coal country. Rather, under-funded schools and public services, high unemployment, and meager employment opportunities beyond minimum wage jobs have long been the reality in communities where, historians say, coal was king.

A brief examination of regulatory actions demonized by pro-coal interests is revealing. The Obama EPA was not intent on destroying coal jobs. Rather, environmental regulatory agencies acted in good faith to enforce the Clean Air, Clean Water, Surface Mining Control and Reclamation, and Resource Conservation and Recovery acts. These laws were passed after decades of virtually unregulated industrial emissions, rationalized by polluters with maxims like “dilution is the solution to pollution” and “where there’s smoke there’s jobs.” The new laws passed in the 1970s were intended to cut harmful air, water, and toxic pollution by mandating environmental regulators to focus on internalizing the costs of pollution the power generation sector had dodged for decades.

Rather than seeking to comply with measures that would limit pollution, coal interests most recently attacked the Obama EPA’s Stream Protection Rule that limited waste discharged into Appalachian headwater streams — the remains of ridgetops blasted apart by huge mountaintop removal strip mining operations.

Also targeted were the Mercury and Air Toxics Standards. EPA analysis reported that these new standards would forestall up to 11,000 premature deaths, 4,700 heart attacks, and 130,000 asthma attacks every year. The agency found that the value of the rule’s air quality improvements for human health totaled $37 billion to $90 billion each year. That means for every dollar spent to reduce this pollution, Americans get up to $9 in health benefits.

A rule intended to prevent coal ash containing mercury, cadmium, arsenic, and other heavy metals from contaminating surface and groundwater was condemned as part of the War on Coal, notwithstanding the fact that for decades millions of tons of these power plant wastes had been discarded annually in hundreds of unlined landfills and impoundments across the country.

Coal interests’ most strident denunciation of EPA regulation was reserved for the Clean Power Plan and Obama executive orders that paved the way for the United States to join 195 other nations in the Paris Agreement, described by the signatories as “for the first time [bringing] all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects.” Each of these measures have been nullified or are in the process of being withdrawn by the Trump administration.

The hyperbolic fact-bereft War on Coal slogans demonizing these Obama regulatory efforts served to obscure long-denied, yet irrefutable costs of unregulated and under-regulated mining and burning. Avoidance of those costs permitted artificially low pricing that for decades undercut coal’s energy market competitors. A 2011 New York Academy of Science study penetrated the myth of “cheap, affordable coal.” It examined each stage of the lifecycle of externalities, including extraction, transport, processing, and combustion, finding “multiple hazards for health and the environment.” The academy monetized the costs to the public, finding the total as “a third to over one-half of a trillion dollars annually.”

The academy’s study emphasized that many of the externalities are cumulative. It explained that “accounting for the damages conservatively doubles to triples the price of electricity from coal per kWh generated, making wind, solar, and other forms of non-fossil fuel power generation, along with investments in efficiency and electricity conservation methods, economically competitive.”

Yet for almost a century, the coal industry evaded regulation. Even after the accumulated externalized costs of coal were realized, and addressed by Congresses in the 1970s that enacted environmental and mine safety laws, coal executives tasked their lobbyists and lawyers to repeatedly challenge agency efforts by administrations of both parties to implement and enforce those laws.

This history informs an understanding of the War on Coal strategy. The meme fired-up 2016 political campaigns and inflamed voter passions. Candidate Trump and friends of coal in both political parties curried voter favor by out-demagoguing each other in a scramble to show who hates regulation and loves miners the most.

During the campaign, Trump called climate change a hoax. Obama’s efforts to regulate carbon dioxide was “an overreach that punishes rather than helps Americans.” At campaign events in the coal regions of West Virginia, Kentucky, Ohio, and Pennsylvania, he promised to bring back mining jobs — part of his plan to “make America great again.”

On one level, the War on Coal meme contains a kernel of truth. Coal production and employment had, indeed, declined significantly during the Obama years. However, the cause for the decline had little to do with government regulation. An inconvenient fact coal interests conceal is that the mining workforce has been decimated by the industry itself. Companies shed thousands of workers as mines grew increasingly mechanized.

Three factoids from the Bureau of Labor Statistics illustrates a trend. During the Reagan and Bush I presidencies, coal jobs dropped from 242,000 to 144,000. Coal mining jobs in Appalachia dropped 60 percent from 1985 to 2000. Industry employment slipped from 73,000 in 2000 to about 52,000 today.

Notwithstanding these huge job losses, mechanization drove production higher and higher. For several decades, coal garnered half of the electric generation market. The War on Coal meme blames regulation on its recent fall from grace as the fuel of choice for electricity generation. Not mentioned was the emergence of cheap shale gas. Beginning in 2010, gas rapidly seized market share, culminating in 2017, when it dethroned coal as the dominant fuel used to generate electricity. Natural gas’s advantage over coal’s remaining stake is predicted by the Energy Information Administration to continue in the future, and the emergence of gas-powered electricity has decreased the amount of carbon required for each unit of economic activity.

Beyond the surge of cheap natural gas, the cost of renewables — wind, solar, and hydro — continues to drop. Utilities are progressively integrating these carbon-free sources of generation into their portfolios, to the exclusion of coal plants. Wind and solar power represents two-thirds of all new electricity-generating capacity, and in some parts of the country they are cheap enough to compete with natural gas.

Many large U.S. utilities are rapidly shuttering power plants fueled by coal and switching to these alternatives. American Electric Power Corp., one of the country’s biggest utility companies, is “not planning to build any additional coal facilities,” according to spokeswoman Melissa McHenry, who added that “the future for coal is dictated by economics . . . and you can’t make those kinds of investments based on one administration’s politics.” Coal-fired plants comprise 47 percent of AEP’s capacity for power generation; it plans to reduce its use of coal plants to 33 percent by 2030.

Other factors contributing to plunging production and mining employment include depletion of the economically minable reserves in Appalachia and declining demand for exports. Moreover, Resources for the Future researchers report that “between 2002 and 2012, real per-ton extraction costs in Appalachia nearly doubled.”

The War on Coal attack on environmental regulation allows the industry to obscure another reason for sharply declining production and mining jobs. The five biggest U.S. coal companies sought bankruptcy protection in 2015 and 2016. Bankruptcy was not triggered by an increasing regulatory burden. In fact, company managers saw gold at the end of the rainbow in the form of skyrocketing commodity prices at the beginning of the century’s second decade. Acquiring other companies and their reserves when the price of coal hit historic highs, these companies assumed billions of dollars of leveraged debt.

When prices nose-dived, they could not service the huge debt that financed their buying spree. It was not a coincidence that the speculation-fueled bankruptcies coincided with the companies’ mine closures and termination of thousands of jobs. Major producer Murray Energy did not follow the acquisition stampede. Its CEO “watched it go on and shook my head . . . everyone was shoving liabilities to someone else.” As a consequence of these bankruptcies, more than 100,000 miners and their widows lost or may lose their pensions and health care benefits earned by decades of arduous work — blamed of course, on the War on Coal.

After the inauguration, the Trump administration charged out of the box to fulfill its campaign promises — notwithstanding the fact the coal industry was rapidly contracting as a result of competition and irresponsible market speculation. The new president ordered withdrawal from the Paris Agreement, killed President Obama’s Clean Power Plan, ditched limits on dumping power plant waste into streams, and is “reevaluating” regulation of toxic coal ash disposal.

Explaining his decision to pull out of the Paris Agreement, the new president explained it would result in “lost jobs, lower wages, shuttered factories, and vastly diminished economic production.” Trump cited statistics produced by an economic model that projected the impact of the accord: by 2040, gross domestic product would decline by $3 trillion dollars, 6.2 million industrial sector jobs would be lost, and coal production would drop by 86 percent. Scholars found the model to be flawed. Yale economics professor Kenneth Gillingham observed that it was based on cherry-picked data and ignored the benefits of reducing greenhouse gas emissions.

Attending the flurry of presidential executive orders and agency actions reviewing, withdrawing from, or canceling Obama regulatory initiatives, Trump touted a seeming miraculous recovery of thousands of coal jobs. Signing an executive order surrounded by miners, the president announced, “I made my promise and I keep my promise. . . . We’re ending the theft of American prosperity and rebuilding our beloved country.” Vice President Mike Pence added, “The War on Coal is over.”

Interviewed on Meet the Press, then EPA Administrator Scott Pruitt claimed that “since the fourth quarter [of 2016] we’ve added almost 50,000 jobs in the coal sector, in the month of May [2017] alone almost 7,000 jobs.” A month later, Trump drew cheers from a miner-dominated rally when he declared, “Everybody was saying, ‘Well, you won’t get any mining jobs.’ We picked up 45,000 mining jobs. Well, the miners are very happy with Trump,” the president told the energized audience. In announcing the opening of a new mine that would employ just 80 miners in Pennsylvania, Trump exalted: “The mines are starting to open up, having a big opening in two weeks. Pennsylvania, Ohio, West Virginia, so many places. A big opening of a brand-new mine. It’s unheard of. For many, many years that hasn’t happened.”

American Coal Council CEO Betsy Monseu attempted to reinforce the message. “Changes in policy, regulations, and markets are already contributing to a stronger domestic coal industry,” affording “a path to sustainability and the ability to compete that simply wasn’t there in recent years prior, with the continuing threats of the Obama-era regulations.”

The claim that the fuel’s ability to compete had been strengthened and new mines are opening for the first time in many years was demonstrably erroneous. Contrary to claims of growing jobs, a Greene County, Pennsylvania, mine permanently shut down in January with the loss of 370 jobs “because the aging of the mine and adverse geological conditions . . . impaired the productivity of the mine and forced higher production costs.” A manager explained that “under these conditions, the mine is uncompetitive and not sustainable in today’s coal and electricity markets.”

To be clear, while government statistics do report a marginal increase in production and mining jobs in 2017, energy economic experts and even some industry executives concede that a return to the record high levels of the 1990s is not in the cards. Nor do they see any scenario in which mine production and coal-related employment will rebound to offset the thousands of jobs shed as gas and renewables surge. Reuters reports that full-year coal employment data from the Mining Health and Safety Administration shows total U.S. coal mining jobs grew by a meager 771 during 2017, not the 50,000 that Pruitt claimed.

The Energy Information Agency forecast in December “sluggish power demand, abundant gas supply and renewables growth . . . to continue to generate headwinds for coal use and limit the prospects for any resurgence in construction of new coal power plants.” The agency predicted demand for coal to decline 1 percent per year on average over the next five years.

The Institute for Energy Economics and Financial Analysis recently predicted that “potential benefits from regulatory relief that has been promised by the new administration will provide little or no gain and the long-term prognosis for the industry in every region from now through 2050 is poor, as more coal-fired power plants will close and as utilities will continue to allocate capital away from coal.”

Thus, the Trump administration’s victory lap celebrating the deregulatory policies promised to put miners back to work is as much myth as its War on Coal meme.

Ironically for an administration pledged to deregulate, Energy Secretary Rick Perry proposed a rule in September 2017 that would disrupt electricity markets in order to subsidize coal-burning power plants scheduled for closure by their owners because they cannot compete with lower priced natural gas and renewable energy.

Research by the Energy Innovation and the Climate Policy Initiative pegged the cost of the proposed rule at “up to $10.6 billion annually . . . paid by U.S. businesses and residents and this subsidy would flow to roughly 10 companies and 90 power plants, and harm cheaper generation from natural gas and renewables.” Fortune reported that Trump’s proposed subsidy rule was opposed by the great majority of the U.S. power industry, “From market operators and conservative analysts to a bipartisan group of former FERC commissioners — except for those who would directly benefit from it.”

The five-member Federal Energy Regulatory Commission, four of whom are Trump appointees, rejected the proposed rule as contrary to the core tenet of its two decade-long policy of “support for markets and market-based solutions.” The FERC ruling emphasized that “under this pro-competition, market-driven system, owners of generating facilities that are unable to remain economic in the market may take steps to retire or mothball their facilities.”

Notwithstanding FERC’s rejection of Perry and Trump’s subsidy plan, efforts to prop up noncompetitive coal-fired power plants continue unabated. FirstEnergy Corp, whose subsidiaries operate nuclear and coal-fired generating plants facing bankruptcy, requested in late March that Perry immediately intervene and issue an emergency order under Section 202(c) of the Federal Power Act. The company asserted that “the very diversity of supply that baseload nuclear and coal-fired units provide is being lost more and more each day as more and more of these plants retire because their fuel security and resiliency are not properly recognized and valued.” The requested order would direct that FirstEnergy and other companies’ coal-fired and nuclear power plants be paid subsidies “for the full benefits they provide to energy markets and the public at large, including fuel security and diversity.”

Immediate criticism of the requested bailout came from such diverse groups as the National Gas Supply Association, the American Petroleum Institute, and the Sierra Club. “FirstEnergy’s latest attempt to spread a false narrative surrounding the reliability of the electric grid is nothing more than a ruse that will force Main Street consumers to pay higher prices,” said Todd Snitchler, director of API’s market development group.

Dena Wiggins, president and CEO of NGSA, emphasized that Section 202(c) is intended to be triggered by extreme power grid emergencies that, as the Trump-appointee-dominated FERC found earlier, do not exist. “Competitive markets have a long track record of delivering affordable power to customers. It would be counterproductive and send the wrong signal to the market for DOE to grant this request,” Wiggins stressed.

Even more ironic, Bloomberg News reported that Trump administration officials were considering another market-disrupting proposal. Trump has been urged by industry and coal-state officials to exercise authority under the Defense Production Act of 1950 to keep noncompetitive coal power plants online. The DPA was enacted, however, to give President Truman extraordinary authority over the availability of domestic materials production crucial to support the Korean War effort and has never been used to pick winners and losers in domestic energy markets.

Having “won” the War on Coal, the Trump administration and coal interests now seek not only to negate Obama’s effort to force internalization of the fuel’s true costs, but to subsidize coal use to protect the energy source from having to compete in a free-market environment against more affordable gas and renewables. But the War on Coal meme and the myth that the industry and coalfield communities are victims of job-killing regulation is dead. On the ground in mining communities, many recognize that while the fuel will continue to provide some employment, neither politicians’ promises nor a government bailout will allow production and miners’ jobs to return to historic levels. Given that reality, grassroots leaders in coal states are seeking creative ways to diversify their economies to provide educational and employment opportunities that did not exist when coal was king. TEF

Market forces, including cheaper power from natural gas and renewables, are driving coal plants to shutter and their owners to declare bankruptcy. Yet the Trump administration perversely continues to prop up an industry in steep decline.

Should California Develop the State's Large Petroleum Resources?
Author
Robert N. Stavins - Harvard Kennedy School
Harvard Kennedy School
Current Issue
Issue
4
Robert N. Stavins

California is among the most aggressive jurisdictions in the world in its pursuit of public policies to reduce emissions of greenhouse gases. While the Trump administration in Washington is reversing the Obama administration’s climate policy achievements, California and other subnational entities are taking the lead in the development and implementation of meaningful domestic policies to mitigate the impact of human activity on the climate system.

However, California is a producer of crude oil. Is this inconsistent, or even counterproductive? Advocates have criticized Governor Jerry Brown, and proposed a ban on crude oil production within the state in furtherance of California’s climate policies. The thinking goes, crude oil production leads to environmental impacts, so how can it be allowed? The logic is flawed, and the prohibition — if adopted — would impose tremendous costs on the state with little or no environmental benefit.

As California has developed its climate policies, the need to balance the benefits of these policies with their economic and human consequences has always been a challenging issue. Achieving aggressive climate goals will not be cheap, so designing sensible, effective policies is critical. Simply adopting any and all restrictions that might achieve some emission reductions would unnecessarily raise the human cost of limiting GHG emissions.

At its heart, the climate problem arises because of carbon dioxide emissions associated with the use of energy and related services. We heat our homes in the winter and cool them in the summer using electricity and natural gas. We use gasoline to get to work and take vacations. As each country or state — including California — tries to reduce its GHG emissions, the policies and regulations adopted to achieve this end nearly always target the activities that lead to emissions: the generation of electricity, the use of transportation, and the conditioning of our living and working spaces.

The proposed ban on crude oil extraction would flip this on its head, focusing instead on the supply of a fossil fuel. But the simple reality is that the sources of fossil fuel supply are so ubiquitous that crude oil from other regions of the world will replace supplies from California, if California chose not to supply its own on-going needs. Oil and gas used to heat homes and to power vehicles comes not only from California, but from most every region of the globe. Many of these regions have expanding supplies of crude oil due to technological improvements, including the Bakken shale of North Dakota, and vast supplies available with relatively little effort, such as in the Middle East.

Advocates claim that reduction of California crude oil production would reduce global consumption of crude — a claim of questionable validity. But that is not even the right question. There are many things that can be done to reduce GHG emissions, and a sensible, affordable, and sustainable policy will be one that achieves reductions at the lowest cost. Even if restricting California’s oil production might reduce global crude consumption, California would certainly bear all of the economic consequences of this policy, as the state would then rely solely on crude oil imports.

In fact, a restriction on California’s crude production is unlikely to reduce GHG emissions within the state. California’s total GHG emissions are limited by the cap of its GHG cap-and-trade system. The most a restriction on California’s crude production can do is to increase costs, while achieving little or no incremental improvement in the emissions that cause climate change.

Moreover, supply-side restrictions can limit technological progress that can have very positive economic and environmental consequences. The same advocates oppose fracking, but the innovative combination of hydraulic fracturing in shale and horizontal drilling has led both to tremendous economic benefits by expanding supplies of low-cost domestic energy and reducing energy imports, and to environmental benefits by allowing lower-carbon natural gas to displace higher-carbon coal in the generation of electricity across the United States.

By focusing on policies aimed at achieving the appropriate policy goal of reducing GHG emissions — rather than trying to choose winners and losers among technologies and energy sources used to achieve those goals — California can achieve its climate policy goals in ways that are environmentally effective, economically sensible, and ultimately sustainable. In my view, Governor Brown merits compliments rather than criticism for Sacramento’s progressive environmental and energy policies.

Should California develop the state's large petroleum resources?

William O. Douglas's Former Clerk Sitting on Key Climate Change Case
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
Issue
4
Richard Lazarus

A path-breaking climate case now pending in federal district court, The People of the State of California v. BP P.L.C., has surprising roots in the environmentalists’ most celebrated Supreme Court justice. William O. Douglas was an uncompromising green. He served on the Court for almost 37 years, longer than any other justice. Yet, to his great unhappiness, failing health compelled Douglas to resign in 1975 just when modern environmental law in the United States was emerging in full force.

Justice Douglas’s former law clerk, Judge William Alsup, is the presiding judge in the BP case, in which San Francisco and Oakland are suing under California public nuisance law the largest producers of fossil fuels. The complaint’s gist is that the defendants, “despite long-knowing that their products posed severe risks to the global climate,” nonetheless “produced fossil fuels while simultaneously engaging in large scale advertising and public relations campaigns to discredit scientific research on global warming.” The complaints seek an “abatement fund” to pay the costs of addressing rising sea levels.

The case before Judge Alsup is one of several such state common law climate cases recently brought by private tort plaintiff firms. The lawsuits are modeled after the successful multimillion-dollar litigation brought by states against the tobacco industry. Like the tobacco litigation, the climate complaints allege that the relevant industry knew and hid from the public scientific studies that demonstrated the harm its product was causing.

The new litigation is deliberately different from the climate nuisance cases rejected by the Supreme Court in American Electric Power Co. v. Connecticut in 2011. In AEP, a unanimous Court held that the federal Clean Air Act displaced the availability of a federal common law nuisance action for injunctive relief to limit the greenhouse gas emissions from the nation’s power plant industry.

First, these latest lawsuits are expressly based on state, not federal common law. They accordingly both avoid AEP’s holding that the federal common law of nuisance has been overridden by the CAA and take effective advantage of the act’s express preservation of state law causes of action.

Second, the defendants are the largest fossil fuel producers and not, as in AEP, the largest emitters. The suits accordingly do not, as in AEP, seek redress on the theory that the defendants themselves emitted unreasonably high levels of greenhouse gases. They instead allege that unduly high levels of greenhouse gas emissions resulted from defendants’ knowing concealment of scientific information that might well have prompted the public to demand, and the government to require, significant emissions reductions decades ago.

It is far too soon to discern whether these ambitious theories of tort liability will be successful. But, in early skirmishes, there has been a noteworthy development.

In February, Alsup granted the defendants’ motion to remove the cases from state court. The plaintiffs had argued removal was inappropriate because their cases relied exclusively on state and not federal law. Alsup held that removal was appropriate because plaintiffs’ complaint, though couched in terms of state nuisance law, must be understood to be based on federal common law. Relying on the Supreme Court’s 1972 ruling in Illinois v. City of Milwaukee, Alsup reasoned that it made no sense to have a lawsuit with such a broad geographic and national sweep be governed by state rather than federal common law.

Yet, the defendants who won their removal motion may regret their victory. The plaintiffs seem to be embracing their defeat. The likely reason for the reversal is that, in granting removal, Judge Alsup indicated that, unlike in AEP, a federal common law of nuisance action against fossil fuel producers might not be displaced by the CAA. Alsup’s suggested distinction is that the current cases base tort liability on concealment of information, which, unlike emissions levels, is not regulated by the federal statute.

Nor did Alsup stop there. He further ordered the parties to provide his court this past March with a five-hour “global warming and climate change tutorial.” A math major in college, Alsup pummeled the scientists and Chevron’s attorneys with specific questions on climate science.

Whether Alsup’s initial embrace of the case will lead to a favorable ruling for plaintiffs remains unclear. A different federal judge in California rejected an identical removal petition filed in another batch of municipal climate nuisance cases. What is clear, though, is that Judge Alsup’s former boss would be pleased. The author of the Supreme Court ruling in Illinois v. City of Milwaukee upon which Alsup relied for his ruling endorsing federal common law of nuisance was Douglas, of course, and Alsup was his law clerk at the time of that 1972 ruling.

William O. Douglas's former clerk sitting on key climate change case.

Electrifying Transportation is the Next Big Step in Smog Reduction
Author
Kathleen Barrón - Exelon Corporation
Exelon Corporation
Current Issue
Issue
4
Kathleen Barrón

A total of 51 areas in 22 states are in nonattainment with national ozone standards. Ground-level ozone, or smog, harms both human health and the environment. Elevated ozone levels can cause myriad medical problems, particularly for children, the elderly, and asthmatics. Ozone can also harm vegetation, including agricultural produce. Ozone is formed when nitrogen oxides and volatile organic compounds react in the presence of sunlight. Major sources of NOx and VOCs include fossil fuel-fired power plants and industrial facilities, motor vehicle exhaust, gasoline vapors, and chemical solvents.

EPA’s nonattainment designations trigger an obligation for states to develop a comprehensive assessment of sources, current and projected emissions levels, and measures to reduce ozone levels by each state’s attainment deadline, the earliest of which is 2021. These State Implementation Plans have focused on seeking emissions reductions from large stationary sources, such as power plants and industrial facilities.

But in today’s complex circumstances, states must also be attuned to the risk that emissions from such sources may actually increase. Pollution from high-emitting power plants has the potential to rise in two scenarios. First, emissions will grow whenever the supply of lower-emitting natural gas to fuel power plants is disrupted, such as during the cold snaps last winter. In both New England and the 13 mid-Atlantic states, higher-emitting sources such as coal- and oil-fired generation ran more frequently when natural gas was diverted to home heating. With severe weather more frequent, these circumstances may occur more often, including during the summer ozone season, resulting in episodes of higher smog levels throughout the year.

Second, and more permanently, when zero-emissions nuclear plants retire prematurely, emissions rise as fossil-fuel power plants run more frequently. Again, this scenario is increasingly likely, with greater and greater numbers of nuclear plants retiring prematurely. States must take these scenarios into account when predicting future emissions, and state measures that prevent or mitigate either of these scenarios should be counted toward compliance with SIPs developed to address ozone formation.

In order to demonstrate attainment — as well as to protect their citizens — states will also need to seek non-traditional emissions reductions not only from stationary sources but from the transportation sector as well. According to EPA’s latest National Emissions Inventory, 56 percent of NOx emissions is from transportation, while only 24 percent is from power plants and industrial facilities. States will have to be more creative in reducing emissions from cars, trucks, buses, and trains, because states are in large part preempted from directly establishing emissions standards for vehicles. States have used inspections and maintenance requirements to seek some reductions from this sector, but potential gains from these limited measures are minimal.

However, advances in technology offer a variety of options for states willing to get creative with direct reduction measures and with partnerships to lower pollution. For example, the NOx and VOCs reductions from wider deployment of electric vehicles, including mass transit, could be substantial. While meaningful deployment of electrification is a big task, working together, states, utilities, and others could achieve a significant local environmental benefit due to reduced emissions of NOx, VOCs, and metals, as well as carbon dioxide.

A recent paper in Environmental Science & Technology estimates that, in a case where only 17 percent of miles traveled by light duty vehicles (cars) and 8 percent by heavy duty vehicles are electrified, NOx emissions alone would decrease by 209,000 tons annually nationwide. Electrification on this scale would also offer significant reductions in VOCs, CO2, and other pollutants, further magnifying the benefit.

States will need to utilize a number of policy tools to incentivize transportation electrification, such as building out public charging infrastructure, offering additional incentives for purchase of electric or hybrid-electric vehicles, and investing in government-owned electric buses, garbage trucks, and other heavy-duty vehicles.

This reality highlights a key task for states moving forward — with the lowest-hanging fruit of emission reductions identified, states need to align incentives with their full array of policy goals. This includes ensuring that policies at environmental protection agencies, usually the main SIP authors, align with public utility commissions and departments of transportation to maximize electrification. Leveraging market incentives will encourage additional emissions reductions to be as cost-effective as possible.

The author is grateful for the assistance of Kathy Robertson in developing this column.

Electrifying transportation is the next big step in smog reduction.

Blockchain Salvation
Author
David Rejeski - Environmental Law Institute
Lovinia Reynolds - Environmental Law Institute
Environmental Law Institute
Environmental Law Institute
Current Issue
Issue
4
Blockchain Salvation

In 2008, a nine-page article circulated on the Internet describing a protocol for a “peer to peer” electronic cash system dubbed bitcoin. Author Satoshi Nakamoto remained invisible and highly elusive and, in 2011, he simply vanished as a rich man with around one billion dollars in bitcoins. The true identity of Nakamoto has never been established despite periodic investigations and the emergence of publicity-seeking impostors with questionable motives. Even today, he casts a long shadow on the bitcoin community, which, when confronted with some imponderable challenge, will ask the rhetorical question, “What would Satoshi have done?”

Beneath Satoshi’s digital money — dubbed a cryptocurrency — lies a programming protocol called blockchain. According to Webopedia, “Blockchain refers to a type of data structure that enables identifying and tracking transactions digitally and sharing this information across a distributed network of computers, creating in a sense a distributed trust network. The distributed ledger technology offered by blockchain provides a transparent and secure means for tracking the ownership and transfer of assets.” Note the constant use of the word “distributed.”

Blockchain has been described by various digerati as a system for “permissionless innovation,” a “digital organism,” the foundation of the new “autonomous economy,” and the next incarnation of the Internet. The hype around blockchain is bidirectional, ranging from apocalyptic predictions of bitcoin energy use that will “destroy our clean energy future” to rosy scenarios that “blockchain technology can usher in a halcyon age of prosperity for all.”

As science and technology historians like Princeton’s Edward Tenner have pointed out, hype plays an important role in mobilizing resources when new technologies are introduced into society, but there is a need for some ground truthing to rein in the more egregious hyperbole. This will certainly be the case with blockchain, where notions of environmental salvation are already apparent in headlines like “The Environment Needs Cryptogovernance,” or “Can Bitcoin’s Cryptographic Technology Help Save the Environment?” Of course the looming question is whether such hopes are justified.

At a general level we can think of a blockchain as a digital ledger, a distant cousin of early records of transactions kept on clay tablets or papyrus, and eventually replaced by paper-based, double-entry bookkeeping developed in Italy in the 15th century. However, with blockchain, information is not held by a central authority or organization, but in an encrypted, distributed computer network making it immutable (maintaining its own history), secure, and sharable across users. Of course, operating computer networks requires energy and materials resources, and with trillions of transactions per day, this adds up. That is the environmental debit side of the blockchain ledger.

The algorithms behind blockchain are complex, but the good news is that, as some have noted, as with automobiles and iPads, “You don’t have to know how it works to get a lot of utility from the technology.” If people like economist Brian Arthur are correct that radical innovations build on the ability to “stitch together pieces of external intelligence to create new business models,” then blockchain may be the ultimate joining machine, especially in today’s information-intensive, transactional economy dominated by sharing platforms, e-commerce, high-speed trading, and the expanding Internet of Things. In other words, there is an environmental credit side of the ledger too. The question for policymakers is how to ensure that the environment profits in the end.

There are three reasons the environmental community needs to focus on blockchain technology. The first of course arises from its implications for energy and materials use and associated resource and pollution impacts. The second oppositely comes from its potential applications for a wide range of environmental challenges. Finally, there are governance issues raised by its use, which could range from facilitating standard setting, to creating codes of conduct, to guaranteeing transparency and security, and, finally, to ensuring a more robust public dialogue on the up and downsides of the technology. At a more general level, environmental professionals need to be part of an ongoing conversation with blockchain developers and other stakeholders that will shape the social contract affecting digital applications and their use, including policy and governance concerns.

The first critical task is to provide greater clarity regarding the existing and projected energy use associated with blockchain, especially in regard to cryptocurrencies like bitcoin and its various relatives such as Ethereum’s Ether, a so-called digital bearer asset. At the moment, processing a bitcoin transaction consumes an estimated 5,000 times as much energy as using a Visa card. The media have focused on a number of alarming and divergent estimates regarding energy use. For instance, bitcoin mining — creating the required server farms and especially powering them — could be using the same amount of energy as (fill in the country) Denmark, or Argentina, or Nigeria; or could consume the electrical energy equivalent of the entire United States by 2019.

Such estimates matter from an environmental standpoint, because cryptocurrency mining is rapidly expanding in countries where energy-intensive server farms are often connected to inefficient coal-fired electricity generation systems. China — where an estimated 60 percent of bitcoin mining takes place — is the most important example, but Venezuela began bitcoin mining in response to its currency crisis, and activities are emerging in Puerto Rico, where a significant proportion of the population remains without electricity following Hurricane Maria almost a year ago.

In the past, such inefficiencies have driven energy conservation efforts, so these extrapolations may not accurately reflect future reality. One is reminded of the projections of data center energy usage just a few years ago, which alarmed the energy and environmental communities but never panned out. Retrospective analyses by Lawrence Berkeley National Lab indicated that estimates from early 2000 projected a nearly 90 percent increase in data center electricity consumption by 2014. This projection dropped to 24 percent five or six years later. Actual energy use by data centers increased by only 4 percent by that year, and it now constitutes less than 2 percent of total U.S. electricity consumption. This should hold firm till at least 2020.

What happened is that firms like Google, Amazon, Microsoft, and Facebook looked at their operations and undertook significant measures to reduce cloud computing energy demands while simultaneously expanding services to consumers. Similar steps will be needed for blockchain, which could include shutting down illegal bitcoin mining operations, providing incentives to shift to a more efficient server infrastructure, or establishing regulations to limit cryptocurrencies from engaging in resource-intensive bit-mining practices, especially in countries like China.

Energy reductions are possible from emerging technological options, such as new microprocessors, better software protocols (such as Intel’s Hyperledger Sawtooth Blockchain), shifts to energy-efficient cloud computing (such as Microsoft’s Blockchain-As-A-Service or IBM’s blockchain subscription service), or adapting new algorithms that help limit energy-intensive cryptocurrency mining. The impacts of these technologies, both alone and in combination, need to be explored to better shape incentives that can speed commercialization and adoption of energy-efficient options.

If blockchain energy use can be tamed, a variety of applications emerge that sit at the nexus of the digital and analog worlds, bridging the autonomous and physical economies. Even at this nascent stage of blockchain use, the range of innovations with environmental implications across various sectors and domains is significant and worth exploring for clues about the future. What follows is a snapshot of a dynamic and shifting landscape.

Blockchain could support the creation of highly efficient peer-to-peer energy markets, allowing an individual with solar photovoltaics on his or her roof to sell electricity directly to a neighbor with a Chevy Volt or another friend down the street with a household-level battery storage system. That is happening now in Brooklyn, a locale that has emerged as the new cryptolandia for blockchain startups. Here, the company LO3 Energy launched the blockchain-enabled Brooklyn Microgrid that uses a peer-to-peer system to enable residents to buy and sell solar energy through a smart phone app. Members of the network can either generate their own energy, usually through renewable sources such as solar or wind, or remain purchasers of locally produced energy. Blockchain allows residents to securely manage and record transactions of both energy and money.

The U.S Energy Information Administration found that 5 percent of electricity is lost through transmission and distribution before it reaches the consumer. Smaller networks and transmission distances enabled by microgrids could reduce this inefficiency, and also offer more stability when hurricanes, snowstorms, and other severe weather events can cause entire grids to fail. Microgrid electricity suppliers and buyers can create their own energy markets, allowing them to sell, manage, and track transfers among neighbors. Of course, in most cases, these smaller grids will still be part of the larger energy supply network, so the regulatory interface with the public utility system needs to be worked out, especially when the municipal utilities themselves are adapting blockchain to help optimize generation assets across the grid in real time — Burlington, Vermont, is experimenting now with such a system.

On the other side of the planet, the Republic of Georgia is partnering with the blockchain firm Bitfury to manage its land titling registry. The use of blockchain technology to attribute land titles is a highly attractive prospect: the government’s use of the system promotes transparency and reduces fraud, while also reducing administrative costs and inefficiencies. In some countries transferring a land title can cost hundreds of dollars (and an occasional bribe) and take months, but in Georgia it takes approximately 50 cents and a few minutes on a smartphone app.

There are important economic and environmental impacts of such systems, since landholders with secure tenure are more likely to invest in their property, which provides the foundation to increase funding for land and natural resource management. Economist Hernando de Soto estimates that there is over $14 trillion available in unused capital due to a lack of secure land tenure, and de Soto and Overstock.com founder Patrick Byrne have launched their own blockchain-based initiative that allows landholders with legal or extralegal ownership claims to upload the boundaries of their properties via social media.

This blockchain approach to land rights could also be used to map and secure genetic resources that will be critical to building a global bio-economy. That includes providing a way to combat genetic thievery, or “bio-piracy,” that often deprives local people from sharing in the economic benefits that accrue to companies exploiting indigenous resources from plants and trees. Juan Carlos Castilla-Rubio of the World Economic Forum has launched the Amazon Bank of Codes to capture and codify the genomic resources of the Amazon Basin, a rich source of potential DNA for medicines, foods, or even fuels. The ABC uses a blockchain ledger to provide a safe and secure method of tracking and transferring rights to genetic codes, an approach that could be scaled as scientists work to unravel the DNA of the 99 percent of the world’s species that have yet to be genetically sequenced.

These examples use the ability of blockchain technology to facilitate peer-to-peer transactions, execute smart contracts, and provide immutable audit trails between people and objects such as land parcels, solar panels, or the DNA fingerprint of a plant, but another class of potential applications focuses on tracking objects themselves as they move though the economy, for instance in supply chains. This requires linking an object’s digital signature to a blockchain using techniques such as RFID, radio frequency identification tags, or QR (quick response) barcodes, creating the potential to manage health and environmental impacts on an object-by-object, transaction-by-transaction basis. This approach could facilitate supply chain audits, enhance corporate disclosure efforts, and ultimately translate into greater brand loyalty, while providing environmental and public health benefits for all stakeholders: corporations, consumers, and regulators.

Last year, Walmart’s vice president of food safety, Frank Yiannas, grabbed a package of sliced mangos and challenged his team to find their origin, a task that required nearly seven days. After realizing room for improvement, Walmart developed a partnership with IBM to conduct a pilot blockchain project to track every movement of the mango shipments on a digital ledger. Yiannas was able to track every step in the mangos’ progress from harvest to point of sale within 2.2 seconds. A similar initiative was launched in 2017 in Dubai, the largest city in the United Arab Emirates, which created a digital program called Food Watch to have every dining and distribution establishment post comprehensive data on their items on an online public forum. Information would include food handlers, certifications, and storage facilities used. Future plans will incorporate blockchain to “predict, prevent, and protect” against food-borne disease.

The World Wildlife Fund is partnering with tech companies ConsenSys and TraSeable to pilot a monitoring program that tackles illicit fishing using blockchain to track the movement of Pacific Ocean tuna from catch to market. Once caught, each individual fish is labeled with an RFID tag that is later taken off during processing and replaced with a QR code on the product packaging. WWF hopes that consumers will be able to use their smartphones to verify when and where a fish was caught, how it was transported, and by whom. WWF believes that consumers will prefer the verified tuna over those from non-transparent companies, creating a market that favors companies who use sustainable practices that can be confirmed by independent means. These early pilot studies have highlighted challenges that extend beyond blockchain itself, involving traceability across entire supply chains, which will require cheap digital tagging systems like RFID and QR and incentives for data collection by multiple parties.

There is another class of environmental blockchain applications that builds on the original purpose of the algorithm, enabling and tracking currency or currency-like transactions. One example is Climatecoin, an Ether-based cryptocurrency, which uses blockchain to underpin a carbon credit trading system. A nation, state, or company would be able to buy or sell carbon credits that allow a specific amount of emissions. As in traditional trading schemes, if a company pollutes less than its total credit allotment permits, the firm can sell extra credits to an entity that needs to exceed its emissions levels for economic or technology reasons. Climatecoin tokens can be used to purchase carbon credits on the Gold Standard-certified Carbon Trade Exchange, and token sales can then be used for investment into environmentally sustainable business projects. The ability of blockchain to embed self-executing, so-called smart contracts — pieces of code which automatically move funds upon the completion of an objective — could make them an ideal platform underpinning a wide variety of environmentally relevant trading and futures markets.

Blockchain could also help channel more funding toward environmental challenges by creating secure platforms that facilitate crowdfunding. Projections from the World Bank and other sources indicate that global crowdfunding, now at around $35 billion annually, could reach $90 billion sometime between 2020 and 2025, beginning to compete with more traditional forms of financing like venture capital, which accounted for $150 billion globally in recent years. However, crowdfunding still has many barriers to market entry, including taxes and fees, as well as barriers that may limit who can contribute to crowdfunding platforms geographically.

The recently formed Acorn Collective is using blockchain to “democratize crowdfunding” with a platform that is designed to reduce barriers to entry and to function across geographic and political borders. Acorn uses smart contracts to swiftly dole out returns to investors and do away with the 3-5 percent overhead fees charged by conventional crowdfunding platforms such as Indiegogo and Kickstarter.

Blockchain advocates often point out that the technology could decrease the need for intermediaries in the future, disrupting existing value chains in a wide variety of sectors, a scenario which could spell trouble for companies like Kickstarter, Uber, or Amazon. We could see the rise of so-called decentralized autonomous organizations, or DAOs, in which the rules upon which a corporation functions are enforced digitally and blockchains replace contracts, bylaws, articles, or regulations that determine organizational and inter-organizational behaviors.

This could give rise to novel corporate structures with new implications for environmental management strategies, where blockchains control and verify assets such as the right to pollute in cap-and-trade systems or swaps between ecosystem services and development rights or the distribution of catch shares in fisheries. Some visionaries have discussed blockchain as underpinning a new “participatory democracy,” where the technology provides a more direct means for citizens to engage and vote on issues, identify local needs, and mobilize capital or political action needed to solve pressing issues. Social Coin, founded in Barcelona in 2013, is one example of this type of platform.

It may be hard to imagine how EPA and its sister state agencies would deal with a DAO where environmental behaviors were written into source codes and executed by thousands of people through a consensus-based algorithm, but this future may not be that far off and may not be a negative development, given our present politics of distrust and lack of transparency.

Despite the future potential for increased efficiency, security, trust enhancement, and organizational redesign, blockchain still faces barriers to widespread use. We already mentioned that some blockchain applications, such as bitcoin, require intensive energy use. Bitcoin’s power demand is only likely to increase as the process for validating transactions becomes more complicated over time. However, other cryptocurrencies and future blockchains might not be destined for the same energy intensity. Researchers at Ethereum, Intel, and Cornell University are developing methods for lowering energy transaction verification that could dramatically cut cryptocurrency power use. Observers suggest that we may soon see a fork in the road where bitcoin continues as an energy glutton while other blockchain technologies pursue more energy-efficient methods for verifying transactions. The question is whether these alternative methods will provide an equally robust level of security.

The increased security of distributed ledger technology is especially important in the environmental sphere, where environmental decisionmaking can be rife with conflict. An immutable platform could be crucial to establishing trust between opposing sides of an impending land-use decision, carbon-trading scheme, or supply-chain dispute. While the inherent structure of a distributed ledger is hack-proof, vulnerabilities on the user-end of blockchain systems are still prevalent. To access a blockchain network, users must only provide a unique private key to access the system. While these keys are nearly impossible to guess, private keys can easily be stolen if not protected properly. And the consequences of key theft are dire: if a hacker gains entry to the blockchain, they have access to the key holder’s account, and can view all information on the ledger. Because of this security issue, there is now an entire cottage industry dedicated to protecting cryptocurrency keys. One company called Xapo uses protected vaults on three different continents to store digital keys.

While blockchain applications are growing, companies have suggested that full-scale adoption is inhibited by a lack of standards. Areas that could require standardization include establishing liability in smart contracts, determining jurisdiction for arbitrating blockchain related disputes, standardizing energy efficiency in order to limit carbon emissions and other impacts, and ensuring privacy rights for blockchain users. Standards for blockchain have yet to be released by any organization but many are under development.

In May, China announced that it would release blockchain standards by 2019. The International Organization for Standardization’s technical committee on blockchain and distributed ledgers currently has eight ISO standards under development (with no projected due date). However, not all standardization or regulation is viewed as helpful. The state of New York requires cryptocurrencies to apply for BitLicenses in order to ensure anti-laundering practices and to protect consumers. Critics complain the expense of the license is a barrier to market entry and that it sets a dangerous precedent: if all states require different licenses for operation, cross-jurisdictional operation would be near to impossible. The lack of clear and agreed upon national and international standards can delay the wide adoption of new technologies by years or decades; greater efforts need to be devoted here to realize the benefits side of the blockchain environmental ledger.

Even with future improvements in energy efficiency, security, and standardization, observers argue that the buzz around blockchain is overblown. In many sectors better alternatives to blockchain already exist that are both less energy intensive and much faster. Visa’s credit card system processes 60,000 monetary transactions per second. Bitcoin can process only seven. Blockchain is useful when it is the most cost effective method for building trust and when there is an incentive to join the platform. Many of the environmental applications mentioned above do not necessarily require high transaction processing capacity but do have a need for trust and security. In order to fully realize the potential of distributed ledgers in the environmental field, professionals should think critically about areas in which blockchain can be most effective.

A larger question lurks behind blockchain, one that we need to ask generally about emerging technologies: Is blockchain another incremental step down the path of what Clayton Christensen at Harvard Business School calls “business process efficiency” — or does it constitute a true product innovation? The limited number of applications and experiments so far sound more like the former, a move toward greater efficiency, maybe even a type of hyper-efficiency, but hardly the disruption brought on by the introduction of the internal combustion engine or the microprocessor.

The radical-value proposition of blockchain, that it could democratize information and decentralize authority, sounds vaguely similar to the prophecies of the early Internet age, before large corporations took control of every bit, byte, and tweet and planted AI-enabled extensions of themselves into our cars and homes. At this point, environmental professionals need to help create and shape an experimental space in the blockchain ecosystem that encourages developing and evaluating needed applications, working with philanthropies, startups, governments, NGOs, law firms, and of course businesses to improve resource efficiency and public health. TEF

ELI PRESS ❧ Environmental professionals need to be part of an ongoing conversation with the software developers and other stakeholders that will shape the social contract affecting bitcoin’s and other applications’ environmental costs and benefits — plus shape emerging policy and governance responses.

Energy Justice
Subtitle
What it means and how to integrate it into state regulation of electricity markets
Author
Aladdine Joroff - Harvard Law School
Harvard Law School
Current Issue
Issue
4
Energy Justice

The evolution of electricity systems raises fundamental questions about how to balance innovation with costs to individuals, particularly those individuals who are less able to participate in or benefit from the innovation. Who bears the costs of modernization, and how we distribute the burdens and benefits, are societal questions with policy implications that underlie the concept of energy justice. Energy justice looks beyond income-based discount rates that, while necessary, are alone too blunt a tool to optimize the underlying dynamics that create the need for such discounts.

Although the long-term goals of modernizing our electricity system, whether the sources of energy or the infrastructure (i.e., the grid), include greater personal control over energy usage and cost savings, there are up-front costs that will often be borne by consumers. Even if total costs do not increase, they may be redistributed as pricing systems evolve to reflect the changing nature of connections and customer usage patterns. Increased or redistributed costs raise concerns about potential impacts, particularly disproportionate impacts, on low-income consumers, who are frequently least able to accommodate higher or volatile energy prices.1 This concern drives questions as to whether decisions about our electricity system are “fair” or “equitable.”

Energy justice is a relatively new concept as compared to environmental justice, and although the ideas are related, they at times diverge in objectives and strategies. Achieving the full range of goals envisioned by both concepts 2 requires anticipating where energy and environmental equity concerns overlap or differ. This Comment proposes a framework for evaluating energy justice, recognizing that there is not, nor need be, a uniform definition of what energy justice means or what it seeks to achieve. The authority and process for implementing this framework will differ across jurisdictions, but the Comment examines some of the questions that state legislatures and ratemaking agencies will face when integrating energy justice considerations into their regulation of electricity markets.

Delving Into the Definition of Energy Justice

There are few stand-alone definitions or objectives for energy justice, and the universal adoption of a single definition is unlikely. Predicting cost-distribution impacts of electricity market developments is often complicated by the fact that many of these policy initiatives and utility proceedings build on new technologies and novel business strategies. An evaluation of equitable impacts thus should go beyond a static consideration of the cost of isolated actions. The following proposed definition thus encompasses principles that address energy equity issues beyond the consideration of discounts for low-income consumers:

Building on the tenets of environmental justice, which provide that all people have a right to be protected from environmental pollution and to live in and enjoy a clean and healthful environment, energy justice is based on the principle that all people should have a reliable, safe, and affordable source of energy; protection from a disproportionate share of costs or negative impacts or externalities associated with building, operating, and maintaining electric power generation, transmission, and distribution systems; and equitable distribution of and access to benefits from such systems.

This definition goes beyond using energy burdens as a proxy for energy equity concerns. While reducing energy burdens is a component of energy justice, it is only one of the objectives of energy justice, which include:

  1. Reducing energy burdens on low-income consumers;
  2. Avoiding disproportionate distribution of the costs or negative impacts associated with building, operating, and maintaining electric power generation, transmission, and distribution systems;
  3. Providing equitable distribution of and access to real benefits associated with building, operating, and maintaining electric power generation, transmission, and distribution systems; and
  4. Ensuring a reliable source of electricity and protecting low-income households, including those on fixed incomes, from price fluctuations.

While all aspects of this framework are worthy objectives, simultaneously making progress on all principles will not always be possible. The following sections flesh out what is meant by each of the above-enumerated principles.

Reducing Energy Burdens on Low-Income Consumers

From an economic perspective, energy burdens refer to the percentage of income households spend on energy costs: low-income households generally have higher energy burdens than other households, primarily because their income is lower but also because their homes tend to be older and less energy-efficient.3 According to a 2016 study of nearly 50 major metropolitan areas in the United States, low-income households devote up to three times as much income to energy-related utility costs as do higher-income households; in more than one-third of the cities studied, one-quarter of low-income households had an energy burden greater than 14%.4 The burden increases when heating costs are considered.5

Energy burdens matter because households facing disproportionately high energy costs relative to income make budget trade offs that can jeopardize health, safety, and housing stability.6 According to a 2005 survey, a significant proportion of households receiving federal energy assistance in the Northeast reported making budget trade offs because they did not have enough money to pay their energy bills: 20% went without food; 28% went without medical or dental care; and 23% did not make a full rent or mortgage payment at least once.7 Children and elderly individuals are often most susceptible to such trade offs.8

As a metric for measuring progress, the economic size of energy burdens is easier to calculate than other “equal protection” objectives of energy justice, but reducing energy burdens will not be the most appropriate driver in all equity discussions. A ratemaking case, where a utility is determining charges for different categories of users, is a logical context to consider mechanisms to reduce energy burdens; however, it may be less appropriate to link the growth of renewable energy to a reduction of energy burdens. For example, when determining whether or how to compensate or charge residential solar owners, it might be sufficient, from an energy justice perspective, to seek to avoid increasing energy burdens, either proportionally or absolutely, as opposed to reducing them.

An example of a potential hybrid approach comes from Massachusetts, where stakeholders petitioned the Department of Public Utilities (DPU) to “restore” the value of the discount rates for low-income consumers because “the cost of on-site generation subsidies which low-income discount customers rarely receive have had the effect of offsetting low-income rate discounts by almost 20%.”9 This request was presented as an adjudicatory petition separate from decisions about
(1) whether to provide a discount for low-income consumers, and (2) how to integrate renewable energy into the electricity system. The outcome could have been an order directing utilities to immediately and/or periodically review, and revise as necessary, their discount rates to reflect any impacts from subsidies for on-site generation (subject to filing and opportunity for review but separate from rate cases). However, DPU declined to open a stand-alone proceeding and instead encouraged petitioners to raise the issue in company-specific base rate case proceedings, an approach with higher transactional costs due to the multiple filings required.

Avoiding Disproportionate Distribution of the Costs or Negative Impacts

This principle looks to the comparative size and shifting of costs or negative impacts between categories of consumers as opposed to the absolute costs. When commentators posit that the effect of solar customers using less energy from the grid and running their meters in reverse is to shift the payment of lost utility revenue onto individuals who do not have solar panels, they are implicating concerns about disproportionate distributions of costs, given that wealthier homeowners are more likely to own solar panels than lower-income consumers.10

This aspect of energy justice is also concerned with nonmonetary impacts. For example, if businesses or communities develop microgrids powered by natural gas, an energy justice analysis queries whether such facilities would negatively impact air quality in neighborhoods where conditions are worse than in surrounding areas or as compared to state averages, even if compliant with relevant standards.

Providing Equitable Distribution of and Access to Real Benefits

As proposed here, an energy justice analysis considers whether consumers have equitable opportunities to take advantage of energy cost-saving measures and other benefits. When all consumers help pay for changes to the electricity system, resulting benefits should accrue or be accessible to all consumers. Such benefits could take the form of reduced environmental impacts, greater control over electricity usage, or reduced bills. Applying this principle may require considering whether benefits should be distributed equally to all consumers, proportionally based on contributions to cost, or disproportionately favoring those consumers most “in need” of the benefits.

When discretionary actions result in benefits, systems should be designed to enable as many people as possible to take the beneficial actions. In some instances, low-income households interested in taking advantage of new technology, such as programmable thermostats, may struggle with the initial investment required to access associated benefits. Policies informed by energy justice principles should account for these initial costs and consider mechanisms that allow low-income consumers to utilize new technologies without increasing their energy burden. To illustrate, to the extent that residential solar power provides cost-savings or benefits to direct users, solar farms and virtual power plants are mechanisms that may provide similar benefits to populations without access to rooftop solar.

Some ratepayer advocates worry that access to benefits simply for the sake of access may not be meaningful, and could in fact be detrimental, such as access to cheap credit.11 But is an energy justice analysis the right context to decide whether providing access to a benefit is a worthwhile objective if utilizing the benefit could have negative consequences? Rather than making a paternalistic decision to preclude such access at the outset, an energy justice analysis instead could be refined to target appropriate use by (1) looking for potential drawbacks of access to benefits, and (2) ensuring that programs are designed in tandem with appropriate education, outreach, and pilot programs.

Ensuring a Reliable Source of Electricity and Protecting From Price Fluctuations

This principle most closely tracks the traditional goal of energy system regulators: to ensure reliable, affordable, and, more frequently, sustainable/clean electricity sources and systems. From a purely economic standpoint, the historical application of this principle would have frequently focused on access to the lowest-cost forms of energy (e.g., nuclear, coal, or gas). A more-nuanced approach is needed in today’s world, given trends such as (1) renewable generators bidding into markets at negative rates, (2) markets lacking adequate storage to run exclusively on renewables, and (3) evolving systems for real-time pricing. For example, a holistic application of this principle would favor actions that help flatten load curves and reduce peak prices, which would implicate issues other than lowest-cost fuel sources.

This energy justice framework focuses on substantive/distributive justice as opposed to procedural/participatory rights. This is not to minimize the importance of equal access and ability to participate in decisionmaking processes. The focus on distributive justice arose from (1) the greater similarities between procedural justice in the energy and environmental justice contexts, and (2) the greater progress made on procedural objectives than substantive equal protection goals.12 However, relevant to both aspects of energy justice is the need for education and outreach. Energy literacy programs are important because the learning curve for understanding and accessing the advantages of an evolving grid can be incredibly steep for any customer, and this is exacerbated when consumers lack access to information about their energy systems or prioritize other needs. Greater knowledge can empower consumers to take greater control over their energy usage and become more involved in energy decisions.

Energy Justice Is a Concept Additional to Environmental Justice

The concepts of environmental justice and energy justice have commonalities, but they are not always consistent and can differ in the people they seek to protect, the harms they seek to avoid, and the strategies they employ to achieve fair results. Traditionally, environmental justice focused on the aggregation of pollution and sources of pollution in lower-income and minority communities.13 Today, many environmental justice initiatives go beyond siting and permitting decisions, and also promote “fairness” or “equity” with regard to matters such as the oversight and enforcement of polluters, the distribution of cleanup grants, and access to funds for open spaces or other “green” benefits.

Moreover, the definitions and objectives of environmental justice laws and policies are not static, and some expressly recognize a need to address energy-related issues that go beyond the siting of traditional energy infrastructure.14 However, given the framework for energy justice outlined above, most existing approaches to environmental justice are not sufficient to protect individuals in their role as energy consumers as well as in their role as community members.

Environmental justice policies typically seek to protect or assist people at the community level, defining protected neighborhoods by reference to factors such as income levels and percentages of minorities, foreign-born residents, and/or non-English speakers.15 Assistance for low-income electricity consumers, on the other hand, is targeted at recipients based on personal or household income levels. These approaches provide protection/assistance to different people. This is illustrated in Table 1, which compares energy and environmental justice subjects in Boston, a large urban area, and in Concord, a well-to-do Massachusetts suburb. (The comparison in the table is not precise, as it looks at “populations” subject to environmental justice policies versus “households” eligible for federal energy assistance, but demonstrates in the aggregate that the programs protect different people.)

Even when proponents of environmental protection and low-income energy consumers seek to protect the same people, they may disagree on what that means. In the solar net metering discussion, for instance, some rate advocates view residential solar as a non-cost-effective measure that, by decreasing utilities’ revenues, reduces their ability to carry out their social responsibilities, including to low-income consumers. Environmental advocates, on the other hand, may argue that, because all electricity consumers will benefit from the societal value of reduced emissions and avoided capacity investments, any equity concerns should be addressed by making solar power widely available.

To promote equitable solutions and innovations, advocates and decisionmakers should consider both environmental and energy equity perspectives in order to identify and take advantage of synergies and resolve potential conflicts. Dialogue and coordination between environmental and low-income/rate advocates could also increase energy literacy, both among advocates and electricity consumers.

Application of an Energy Justice Framework to State Regulation of Electricity Markets

Energy justice considerations will most frequently be addressed at the state level by legislatures and ratemaking entities. The authority and structure of such entities will differ across states, but many will face similar questions when designing and implementing energy justice policies. This section outlines some of these questions, but provides neither a comprehensive list nor answers. Rather, this is presented as a starting point for further discussion.

Table 1. Environmental Justice Populations and Energy Assistance-Eligible Households in Boston and Concord, Massachusetts

Who Has Authority to Address Energy Justice Objectives?

Multiple government entities have authority to make decisions or seek action/relief relevant to the electricity system, from legislatures and ratemaking agencies (e.g., departments of public utilities and public utility commissions) to offices of attorneys general. Determining which entity has the authority to make decisions relevant to energy justice involves a jurisdiction-specific analysis. Some general questions to consider, however, include:

  • When is there a need for additional legislation or changes to existing legislation to address energy justice issues?
  • Do ratemaking agencies have the authority to set statewide tariffs or fees, or can they only make such decisions in the context of individual ratemaking cases?
  • When setting policies or approving rates, how much leeway do ratemaking agencies have to consider, or to base their decisions on, issues like energy justice?
  • Can ratemaking agencies investigate or adopt new policies on their own initiative?
  • Which parties, governmental or private, have standing to petition for actions relevant to energy justice or to challenge decisions based on energy justice considerations?

Given the evolution of concepts like energy justice, environmental justice, and climate change, existing sources of authority may support addressing these issues without explicitly referencing current nomenclature. As an example, the Massachusetts Legislature has stated that “affordable electric service should be available to all consumers on reasonable terms and conditions,” and that “electricity bills for low income residents should remain as affordable as possible.”16 Though not using the term, this language gives the Massachusetts DPU authority to consider energy justice, a conclusion supported by judicial precedent confirming that rate classifications can be based on “[a]ny number of factors” beyond cost of service.17

In What Context Are Equitable Impacts Measured?

Equitable impacts of proposed actions are not isolated effects; they occur in complex electricity systems that already include a number of explicit and implicit cost-shifting features and subsidies that flow in multiple directions. As examples:

  • Utility/ratepayer subsidies: Some states require regulated energy utilities to impose a surcharge on customers to fund discounts on low-income customers’ utility bills.18
  • Government/taxpayer subsidies: LIHEAP is an example of federal funding that assists low-income households with heating, cooling, and weatherization expenses.
  • Implicit cost-shifting: Many electric bills include volumetric charges with set transmission and distribution fees even though a person living next to a power plant has a “real” transmission cost less than that for a person whose electricity travels over 100 miles of wires. Because these two customers pay the same price per unit of electricity, the person next to the power plant, who may be a lower-income individual, is subsidizing the costs of the person living farther away. As another example, where electricity is sold at a single rate, there can be a cross-subsidy between consumers with flatter load profiles and those with peakier load profiles.

Contextual analyses of equitable impacts that consider the full range of existing subsidies and cost-shifting features are more complicated; parameters for analyses that are less than holistic may be appropriate, or at least necessary, especially in time-constrained proceedings.

Geographic and temporal limits can also be relevant. For instance, if the environmental benefits of cleaner energy sources are contemplated as part of the energy justice analysis, decisionmakers need to consider the geographic context in which such impacts are measured. As an example, the addition of solar power anywhere may reduce greenhouse gas emissions (assuming other generation is displaced or avoided), but such global benefits are different than the localized benefits of adding solar power directly in a community with poor air quality.

Who Is Protected by Energy Justice Goals?

It may be appropriate for energy justice policies to protect consumers beyond those that actually receive some form of subsidy on their electric bills. For instance, LIHEAP is not an entitlement program; there is no legal mandate to provide benefits to all eligible households, funding fluctuates, and assistance often reaches only a portion of eligible households. Even when funding is available, not all eligible customers take advantage of discounted residential electricity rates. Energy policies could instead be designed to protect all consumers or households eligible for financial assistance.

However, eligibility criteria for subsidies and other forms of financial assistance vary both within and across programs; there is no single set of participation requirements or income thresholds. Assistance may be targeted to individuals with defined incomes, fixed incomes, and/or specific characteristics (e.g., senior citizens, families with young children, and individuals who have a serious illness or require the use of medical devices). Given the occurring and projected rising number of extreme heat days, it may be necessary, particularly in states where air-conditioning use has historically been low, to expand hardship classifications to include more individuals with heat-related illnesses. How protected populations are defined can impact the scope and cost of equity-driven decisions.

What Information Is Necessary to Evaluate Energy Justice Impacts?

As is often the case when considering electricity system proposals, the information needed for energy justice analyses varies based on the issue under consideration. At times, such analyses will raise questions in rate- or utility-specific proceedings that are often associated with more widely applicable policy discussions. As an example, consider an energy justice analysis for a proposal to implement time-varying rates (TVRs) with either an opt-out or opt-in approach. If the installation of smart meters is tied to decisions about participating in TVR programs, then questions arise as to who makes the opt-out/opt-in decision, and if it is an opt-in program, who pays for the meters. Examples might include:

  • In a rental property, is the opt-in/opt-out decision made by the landlord or the individual tenants19
  • Will landlords be required to install submeters?
  • If an opt-in TVR program charges participants for the smart meters, will tenants or landlords pay for the meters?
  • If the tenant pays for the smart meter installation, what happens to the smart meter when the tenant moves?
  • Would the cost of a meter prohibit participation by low-income consumers and, if so, could the cost be paid over time through savings in energy bills?

Additional information may be needed to design programs that optimize equitable outcomes. With respect to TVRs, although pilot studies continue to be performed, the impacts of TVRs on low-income consumers are not fully understood. Striking the right balance between giving low-income consumers access to the benefits of TVRs and protecting them from high peak costs will not be easy (and there is unlikely to be an approach that uniformly affects all consumers). But regulators should consider innovative strategies to allow those low-income consumers who can benefit from TVRs to do so, while protecting those who would be hurt by TVRs from significant increases in their energy burdens.

Simply carving low-income consumers out of TVR programs would be too blunt a tool and leave potential benefits on the table. Hybrid solutions might entail:

  • Providing exemptions from opt-out programs for particularly vulnerable populations (e.g., individuals dependent on medical equipment that requires electricity), and offering them an opt-in TVR program instead; or
  • Conducting “shadow billings” that allow customers to see the impact TVRs would have on their bills before the TVRs are actually applied. This would give consumers an opportunity to test their ability to respond to TVRs.

Outreach and education will strengthen realization of benefits from new programs such as these. Adaptive and iterative management of electricity systems that is open to innovation and integrates flexibility into traditionally longer-term capital planning will support achievement of energy justice goals.

Conclusion

Whether or not defined as such, the concept of energy justice is not new, but as an analytical tool it is less common than environmental justice analyses. Adopting systemic frameworks for energy justice, and consistently evaluating electricity market decisions from an equity perspective, will support the evolution of electricity markets that meet societal goals of fairness and affordability.

Taken individually, many initial steps in grid modernization and other proceedings may not have a disproportionate impact on low-income consumers. For example, adding advanced sensors and meters or data analysis capacity should have proportional cost impacts if installed uniformly. But smart meters that support the implementation of TVRs could result in rate structures with higher basic service prices, or more risk of price volatility, that may disproportionately impact low-income consumers. Thus, energy justice analyses should consider the impact not only of specific actions or investments, but also the outcomes that these investments lead to or support. TEF

1. See, e.g., Massachusetts Department of Public Utilities, Anticipated Policy Framework for Time Varying Rates (June 12, 2014) (D.P.U. 14-04-B) (“the Department is mindful of the concerns raised on behalf of low-income customers and others who are unable to shift a significant portion of their consumption due to extraordinary circumstances, such as medical equipment requirements”).

2. Such goals include ensuring grid safety and reliability, providing universal access to affordable electricity, and reducing greenhouse gas and other emissions from the generation and distribution of electricity.

3. Rental households also experience higher energy burdens. See, e.g., Ariel Drehobl & Lauren Ross, American Council for an Energy-Efficient Economy, Lifting the High Energy Burden in America’s Largest Cities: How Energy Efficiency Can Improve Low Income and Underserved Communities 12 (2016).

4. Id. at 3-6. Other studies suggest a more drastic difference.

5. See, e.g., Meg Power, Economic Opportunity Studies, The Burden of FY 2008 Residential Energy Bills on Low-Income Consumers 5 (2008) (reporting energy burdens of nearly 40% for certain low-income consumers in New England), available at http://www.opportunitystudies.org/repository/File/energy_affordability/Forecast_
Burdens_08.pdf
. This report is a snapshot in time; the percent of income spent on energy costs will vary based on factors such as temperatures, energy costs, and average incomes.

6. See, e.g., Diana Hernandez & Stephen Bird, Energy Burden and the Need for Integrated Low-Income Housing and Energy Policy, 2 Poverty & Pub. Pol’y 4, 7-8 (2010).

7. Lauren Smith et al., Child Health Impact Working Group (Boston Medical Center), Unhealthy Consequences: Energy Costs and Child Health 2-3 (2007), available at http://www.hiaguide.org/sites/default/files/ChildHIAofenergycostsandchildhealth.pdf.

8. See, e.g., Hernandez & Bird, supra note 6, at 8 (finding that children in families with high energy burdens are exposed to “nutritional deficiencies, higher risks of burns from non-conventional heating sources, higher risks for cognitive and developmental behavior deficiencies, and increased incidences of carbon monoxide poisoning”).

9. Petition of the Low-Income Weatherization and Fuel Assistance Program Network to Apply G.L. c. 164, sec. 141 (Nov. 17, 2015).

10. This is a simplified summary of net metering arguments, provided for illustrative as opposed to analytical purposes.

11. This concern was raised in interviews that Harvard Law School’s Emmett Environmental Law and Policy Clinic conducted with environmental and energy nonprofit organizations.

12. Experience with environmental justice laws and policies suggests that the procedural components of equity initiatives, such as enhanced outreach and participation, are often easier to address than the substantive components. There are, for instance, fewer benchmarks to determine what type of review or actions are sufficient to implement a substantive environmental justice objective such as equal protection.

13. The origins of environmental justice can be seen in the civil rights movement in the 1960s and 1970s, but its roots as a separate movement are often traced back to the early 1980s, when a siting dispute over a hazardous waste landfill in a minority community in North Carolina brought attention to the issue. The momentum generated by the protests in North Carolina built, in part, on two prior federal actions. The first was the passage in 1964 of the Civil Rights Act, which prohibits using federal funds in a way that discriminates based on race, color, and national origin. The second was a 1970 study finding that lead poisoning was disproportionately impacting African American and Hispanic children. In response to this and other studies showing disproportionate exposures to environmental burdens and associated health risks, environmental justice policies sought, and continue to seek, increased procedural and substantive review requirements for the siting and permitting of projects in or near groups or areas defined as environmental justice populations or neighborhoods. See, e.g., Alice Kaswan, Environmental Justice and Environmental Law, 24 Fordham Envtl. L. Rev. 149, 158 (2013); Maryland Department of the Environment, What Is Environmental Justice?, http://mde.maryland.gov/programs/Crossmedia/EnvironmentalJustice/Pages/WhatisEJ.aspx (last visited Aug. 29, 2017).

14. The federal government as well as all states and the District of Columbia have “some type of environmental justice law, executive order, or policy,” and states “continue to innovate in tackling environmental justice issues and the range of approaches is growing, showing that this area of law and policy continues to mature.” See Robert D. Bullard et al., Texas Southern University, Environmental Justice Milestones and Accomplishments: 1964-2014 (2014); American Bar Association & Hastings College of the Law, Environmental Justice for All: A Fifty State Survey of Legislation, Policies, and Cases (Steven Bonorris ed., 4th ed. 2010).

15. See, e.g., Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 16, 1994), Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, available at https://www.archives.gov/files/federal-register/executive-orders/pdf/12898.pdf (directing federal agencies to ensure that programs, policies, and activities that substantially affect human health or the environment are conducted so as not to exclude participation or deny benefits to people and populations because of their race, color, or national origin); Massachusetts Executive Office of Energy and Environmental Affairs, Environmental Justice Policy (2017), available at http://www.mass.gov/eea/docs/eea/ej/2017-environmental-justice-policy.pdf (defining environmental justice populations at the neighborhood level by reference to income levels and percentages of minority or “English Isolation” residents).

16. Massachusetts Legislature, ch. 164 of the Acts of 1997, An Act Relative to Restructuring the Electric Utility Industry in the Commonwealth, Regulating the Provision of Electricity and Other Services, and Promoting Enhanced Consumer Protections Therein, §1(b) and (n) (Nov. 25, 1997).

17. See, e.g., American Hoechest Corp. v. Department of Pub. Utils., 379 Mass. 408, 411-12 (Mass. 1980) (“It is ‘axiomatic in ratemaking’ that ‘different treatment for different classes of customers, reasonably classified, is not unlawful discrimination.’”) (internal citations omitted).

18. See, e.g., Mass. Gen. Laws ch. 164, §1F(4)(i) (2017).

19. Consideration of tenants is relevant from an energy justice perspective because low-income consumers are more likely to be renters.

ENVIRONMENTAL LAW REPORTER ❧ What it means and how to integrate it into state regulation of electricity markets.