Environmental & Energy Law Program Publications
EPA’s Clean Air Act Section 111(d) GHG Rule for Existing Power Plants
Designing Emission Budget Trading Programs Under Existing State Law analyzes existing state authority to freely allocate allowances to EGUs and non-emitters, to auction allowances, and to include newly constructed sources in the program.
Emission Rate Credits in the Clean Power Plan addresses definitional and legal issues about Emission Rate Credits (ERCs) and is organized around the following three questions: 1) What are ERCs? 2) How do ERCs interact with existing tradable instruments? 3) How will EPA and states ensure the integrity of the ERC market?
State Roles in the Clean Power Plan highlights responsibilities that states will have under the Clean Power Plan and provides an overview of basic plan design choices.
Comments on EPA’s Proposed Federal Plan and Model Trading Rules focus on aspects of the proposal that will shape the design of well-functioning trading markets.
Issues to Consider When Crafting Clean Power Plan Multi-State Compliance Approaches, Part 1: Compact Clause describes the contours of the U.S. Constitution’s Compact Clause and Section 102(c) of the Clean Air Act, and explains how states can design multi-state compliance strategies that do not require additional Congressional consent.
Constitutional Issues to Consider in Clean Power Plan Compliance, Part 2: The Dormant Commerce Clause describes the contours of the U.S. Constitution’s Commerce Clause, and explains how states can design multi-state compliance strategies that do not discriminate based on origin, wholly regulate out-of-state activity, or unduly burden interstate commerce.
Efficiency Rules: The Case for End-Use Energy Efficiency Programs in the Section 111(d) Rule for Existing Power Plants concludes that energy efficiency can play two roles in EPA’s power plant rule. First, EPA should set the stringency of its GHG emission guidelines based in part on EE’s ability to save energy. Second, States should be allowed to establish or build on their existing EE programs to implement the GHG standard.
Power Over Pollution: Exploring State Plan Enforcement under EPA’s GHG Power Plant Rule describes how EPA and States generally enforce State plans submitted under the Clean Air Act, and how EPA proposes to treat enforcement issues under its rule for power plants. The paper also surveys laws in four States to assess whether they provide regulators with sufficient authority to meet EPA’s proposed requirements.
Clean Energy and the Constitution
Statepowerproject.org tracks constitutional challenges to States’ clean energy laws. Challenges are wide ranging but most focus on two grounds: preemption by the federal government, or State overreach into regulation of interstate commerce. The site includes summaries of litigation, background about key concepts, and decisions and filed briefs. We offer the site as a clearinghouse and reference for stakeholders, students, and researchers with interest in these cases.
Minimizing Constitutional Risk provides policymakers with key lessons from recently filed lawsuits and suggestions on how states can work within their constitutional limits to achieve energy policy goals.
Easy Jurisdictional Tensions by Integrating Public Policy in Wholesale Electricity Markets. Explores FERC’s authority under the Federal Power Act to approve an RTO tariff that includes zero-emission energy procurement or a carbon price and concludes that approval of a wholesale market tariff that incorporates public policy goals is consistent with the generous construction of the FPA afforded by courts.
Policymaker Summaries distill recent scholarship on state-federal energy policy issues to highlight key recommendations.
The Federal Power Act in the 21st Century. Summarizes a discussion among experts from academia, industry, public utility commissions, and environmental organizations to mark the 80th anniversary of the Federal Power Act.
PURPA @ 40: Remarks at NARUC’s 2017 Winter Meeting. Recaps the purpose and history of Title II of the Public Utilities Regulatory Policies Act of 1978 and comments on recent controversies.
Unlocking Distributed Energy Resources
Comment on NARUC’s Manual on Compensation for Distributed Energy Resources. Urges the Subcommittee to include in the next version: 1) a thorough examination of how deployment of DERs by consumers and non-utility companies affects utility financial performance, and 2) consideration of competition and consumer choice in DER rate design.
Comment to Department of Energy on the Quadrennial Energy Review. Rebuts the notion that there is a “regulatory compact” between regulators and utilities that underlies regulation.
Presentation at the Federal Trade Commission’s workshop on rooftop solar. Highlights the critical role of state regulation in how investor-owned utilities have responded to the growth of distributed energy resources.
Primer on Utility Ratemaking – Unjust, Unreasonable, and Unduly Discriminatory: Utility Rates and the Campaign Against Rooftop Solar. Provides an historical perspective on recent and ongoing debates about rooftop solar utility rate reform (appears in The Texas Journal of Oil, Gas, and Energy Law).
Water Quality, the Regional Conservation Partnership Program, and the Farm Bill
Small-Scale Watershed Planning and Implementation in America’s Farming Communities, written by Jamie Konopacky, includes key insights gathered during a focused discussion co-hosted by the Harvard Environmental Policy Initiative and the Minnesota Water Resources Center. The meeting aimed to share the learning and expertise of participants and advance regional discussion
of a coherent model policy approach for expanding watershed project efforts.
Water Quality and the 2018 Farm Bill: The Regional Conservation Partnership Program, by Jamie Konopacky, identifies projects that have been successfully created at the state and local levels to address negative impacts from nutrient pollution and suggests scaling them up by implementing a critical mass of these projects across multiple states and regional watershed areas. Scaling up local watershed projects to a level sufficient to address the nutrient pollution problem will require that policymakers coordinate relevant state and federal water and agriculture policies and focus them on systematically replicating model local watershed projects. This will require a sound policy framework that includes a local watershed planning and implementation approach and provides adequate funding, data, expert staff, public technology and training to support needed local watershed projects.
Certifications for Green Infrastructure Professionals – The Current State, Recommended Best Practices, and What Governments Can Do to Help was released by the Clinic and the Policy Initiative in July 2014. The report surveys the current state of Green Infrastructure (GI) professional certification programs, discusses obstacles to the development of widely accepted certifications, and suggests measures that governments can take to promote certification programs. The report also recommends best practices for GI certification program design and implementation based on design options observed in existing GI certification.
Regional and Municipal Stormwater Management: A Comprehensive Approach was released by the Clinic and the Policy Initiative in June 2014. The report analyzes options for addressing stormwater pollution at both the regional and municipal level. The report encourages the adoption of green infrastructure by municipalities as a stormwater pollution reduction strategy, and recommends that municipalities consider participating in a regional program as a comprehensive and cost-effective way to address stormwater pollution.
Shale Gas Development
Legal Fractures: Why the Voluntary Chemical Disclosure Registry Fails as a Regulatory Compliance Tool questions the reliance of eleven states on a third party website for oil and gas industry reporting requirements. The registry, FracFocus, is intended to provide information to the public about the chemicals used in unconventional drilling techniques like hydraulic fracturing. But, according to the report, several design flaws make it an inadequate tool for regulatory compliance.
Shale Gas Development: A Smart Regulation Framework was written by EPI Director Kate Konschnik and Mark Boling, Executive Vice President of Southwestern Energy Company. The peer-reviewed article presents the CO/RE framework — characterization of risk, optimization of mitigation strategies, regulation, and enforcement — to design tailored governance strategies. The framework raises key questions about early efforts to govern shale gas, and suggests paths forward.
Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best Practices was released by the Clinic and the Policy Initiative in May 2014. The paper provides recommendations for state lawmakers and agencies to consider implementing to develop robust, comprehensive policies for responding to landowner complaints. If adopted, these practices can help ensure that agencies conduct a thorough investigation of potentially contaminated water sources, landowners obtain an accurate understanding of the finding, and the investigatory process is open and transparent.
Goal-Oriented Disclosure Design for Shale Oil and Gas Development, written by EPI Director Kate Konschnik and published in the Natural Resources Journal, argues that disclosure laws are more effective when they are viewed as a means to achieving worthwhile policy goals. By thinking through when target audiences need information, how they use information, and where they get their information, disclosure law designers can draft disclosure laws that will hit their mark.
Errors and Inconsistencies in GAO’s Reports on the Congressional Review Act, written by Curtis Copeland. The author worked at GAO from 1980 to 2004, and then at the Congressional Research Service from 2004 until he retired in 2011. After retirement, he served as a consultant and special counsel to the Administrative Conference of the United States (ACUS) for several years. He is no longer affiliated with any organization.