Guest Post on New Book: Energy Law: A Context and Practice Casebook

To start,  I want to say thank you to Professor Coleman for allowing me to join him for a few guest posts here at the Energy Law Professor. I am Professor of Law at the West Virginia University College of Law where I teach and research energy law and policy and business law as part of the Center for Energy and Sustainable Development and I direct our new LLM in Energy and Sustainable Development Law. I am also a co-editor of the Business Law Prof Blog.

In the future, I will share some posts on my research projects, many of which can be found here. For my first post, I’ll take this chance to announce the result of another project: my  new casebook, Energy Law: A Context and Practice Casebook, which is at the printer and will be available for use in fall courses. This book provides a different focus than most casebooks and is designed to allow law teachers to provide a comprehensive introduction to energy law in a way that makes students more practice ready in all aspects of the law, especially energy. The book provides practical context for students as they learn doctrine, helps students develop practical skills, and requires students to think about their respective professional identities by integrating and highlighting ethical considerations that lawyers are likely to encounter.

The text is part of the Carolina Academic Press Context and Practice Series, edited by Michael Hunter Schwartz, Dean at the University of Arkansas at Little Rock, William H. Bowen School of Law.  He explains the series, in part, as follows:

A few principles are core to the series’ vision. Best Practices recommends that law professors set high expectations, “engage the students in active learning,” “give regular and prompt feedback,” “help students improve their self-directed learning skills,” “employ multiple methods of instruction,” and, in particular, “use context-based instruction.” Educating Lawyers argues that law professors need to do a better job helping students build practice skills and develop their professional identities.

With that in mind, here’s how I introduce the structure of my book to students:

This casebook is designed to provide insight into the energy law in the broadest sense. As with any broad and new area of the law, learning energy law can sometimes feel like drinking from a fire hose. The goal of this casebook is to help make learning the concepts (and, ultimately, practice) a little more manageable. As such, this casebook does not purport or attempt to be a comprehensive look at energy law. Instead, the book is designed to provide an introduction to the broad and varied legal and policy issues faced by those working in today’s energy industry.

Particular focus in the casebook is taken to help facilitate an understanding of basic concepts and terminology, which can be one of the most difficult parts of understanding energy law issues. In fact, even courts can have a hard time clearly explaining, and thus understanding, the concepts before them. Once the basic concepts and terms are understood, finding the answers to difficult questions in energy law becomes more manageable, though never easy.

There are several different ways to organize and structure a course in energy law. This casebook is organized to link concepts and resources in a way in which one might encounter them in legal practice or policy settings, rather than structured by the energy resource itself. Thus, as an example, natural gas is not a specific chapter in this book. Instead, natural gas issues related to mineral leasing are encountered with the similar process for coal and oil. Natural gas used for electricity generation is covered as one of the resources in the electricity resources chapter. And the economic regulation of natural gas as a commodity is covered in the chapter on economic regulation and market structure.

Chapters begin with a vocabulary section to help students with some of the basic terms and ideas they will encounter in the materials.  Most chapters also provide a “client issue” that frames how students should think about the materials they read.  In practice, attorneys generally learn about new issues or areas because a client has presented them a problem.  The client issue does not necessarily cover every area of the chapter, but it gives students an area of focus for their reading.

This has been a four-year project, and I’m excited to see it come to fruition. I have been teaching with most of the materials for a while, and I find that they work well in helping students connect with the concepts and ideas. The book is very much intended to guide students in their learning, and even their research, by providing materials they would likely use in practice.  Thus, EPA and state-level-agency materials, federal and state commission decisions, and other materials complement the more traditional law review articles and cases.  In addition, the appendices include graphs, statutes, and state permit examples so that students see additional materials they may not encounter in law school course work.

The PDF of the book is available now for consideration, and I welcome inquiries (my contact information is here).  A teacher’s manual is also being developed and materials will be made available by the end of the summer.  I am happy to share those materials on a rolling basis, as well, for those interested.

New Fourth Edition of Energy, Economics and the Environment Textbook

I am very pleased to welcome guest bloggers Jim Rossi (Vanderbilt) and Emily Hammond (George Washington) to Energy Law Prof Blog to announce the Fourth Edition of their Energy, Economics and the Environment textbook (Foundation Press 2015), which is authored by Joel Eisen, Emily Hammond, Jim Rossi, David Spence, Jacqueline Weaver & Hannah Wiseman.

By Jim Rossi and Emily Hammond

In the early 1990s, the late Fred Bosselman asked why a practice field as significant as energy law does not have a good casebook.  Along with Jim Rossi and Jacqueline Weaver, he provided an answer:  The first edition of Energy, Economics and the Environment was published by Foundation Press in 2000.  David Spence and Joel Eisen joined the casebook for its second and third editions; Emily Hammond and Hannah Wiseman are joining the fourth edition, which Foundation Press will publish in Spring 2015.  (For those teaching energy courses in the 2014-15 academic year, the authors are also offering the chapters in manuscript format).

As co-authors, we are unified in a commitment to energy law as an exciting and distinct legal practice area and field of study.  The governance, environmental, and national security implications of energy law are far-reaching, and—to us—part of what makes it an appealing and provocative field. Indeed, developments since the book’s third edition have significantly impacted the landscape. Consider just a few:

  • The United States has become an energy production powerhouse—from the major rise in natural gas production enabled by hydraulic fracturing to being poised to surpass Saudi Arabia as the largest oil producer in the world.  Laws designed for a different time must adapt to this new reality.
  • Federal agencies have been tackling today’s most pressing challenges involving the intersection of energy production and environmental laws—in particular, climate change—using old statutory frameworks.  As the recent Supreme Court decision Utility Air Regulatory Group v. EPA makes clear, numerous issues surrounding this approach have yet to be resolved.
  • Renewable energy technologies have seen sustained growth, especially in the electric power sector.  But neither large-scale wind projects nor distributed solar panels will displace fossil fuel-fired generation without continued governmental support, the provision of which has sparked considerable debate.
  • The U.S. electric power grid is facing major challenges, as limited transmission capacity in many parts of the country strains the aging grid, and new technologies such as microgrids, distributed solar, and demand response challenge the business model of monopoly distribution utilities.

If nothing else, these examples reveal energy law’s dynamism.  Yet its ever-evolving range of issues can seem overwhelming and incohesive.  To give readers tools for confronting these wide-ranging challenges, our fourth edition offers a renewed focus on the unifying characteristics of energy law.  Chapter 1 (early draft available here) provides a framework for organizing and understanding energy law by introducing four recurring and cross-cutting themes:  1) ownership; 2) monopoly vs. competition; 3) externalities and risk concepts; and 4) public governance.  These four themes have defined energy law since the area developed in the early twentieth century—and they play out in every energy resource arena:

  • Ownership. The twin concepts of property and ownership are fundamental to American law.  Deeply held notions of what it means to “own” something both provide explanatory power for much of energy law and raise challenges to innovation in energy technology, law, and policy.  Furthermore, the choice whether energy resources are privately or publicly owned holds consequences for their management and regulation.  Cutting-edge energy issues, such as hydraulic fracturing and renewable power project development, often reflect strong views about ownership regimes.
  • Monopoly vs. Competition. Many energy resources are price regulated for obvious consumer protection purposes, but price regulation also goes hand-in-hand with government endorsement of a monopoly franchise for energy resources.  Much of energy law’s history involves government bodies interacting with the private sectors to form regulatory commitments to attract investment and promote innovation in energy resources.  Once major investments are made in energy infrastructure, careful attention must be paid to who bears the risks of these investments and the incentives this creates for new market entrants and innovation.
  • Externalities and Risk Concepts. Perhaps more than any other issue, increased attention to the externalities produced by energy resources has challenged energy law to expand its scope.  This theme is particularly salient in the face of global climate change, but it persists for localized environmental harms as well. In addition, the concepts of uncertainty as well as risk assessment, perception, and management inform and even dictate modern approaches to energy law and policy.
  • Public Governance. Finally, who should govern energy resource production, delivery, and use? Is federal regulation necessary and when?  Do the land use implications of many energy issues, and the localized nature of the impacts of electricity generation and fuel extraction, mean that state and local governments will always play a major role? How should international challenges be met? The reality is that energy project developers and regulators are often forced to navigate what one of us and his coauthor have called “shared regulatory space” – situations where two or more agencies share jurisdiction over the same issue.  Modern energy lawyers cannot effectively address most major problems in the industry today without understanding a multitude of governance schemes—and without knowing how to argue for changes in the balance of those schemes.

Although the particular issues that modern energy lawyers focus on today differ from those that may have been important to energy lawyers thirty years ago, we believe that there is a durability to these themes:  They will inform the future of energy law too, even as the particular energy resources and issues that hold the attention of lawyers inevitably change.  With Chapter 1’s theme-based framework in place, we provide a way to organize and understand the many topics presented in the remainder of the book.

Like previous editions, this casebook is intended to be used in an Energy Law survey course, but the materials in the book are rich enough that they can also be adapted to a course or seminar covering renewable energy, oil & gas, electricity regulation, and advanced topics in environmental and climate change law.  Previous editions of the casebook have been used at more than 60 law schools, and we intend the new edition of the casebook to provide a pedagogical window that readily can be adapted to a variety of courses and teaching styles as issues in energy continue to change.  Further, we respond to the changing face of legal education by incorporating extended problems, case studies, and other practice-oriented materials throughout the book.

We encourage anyone who is interested in reviewing or using chapters from the new edition prior to its publication to contact one of us. Our Table of Contents includes:

Chapter 1:       Introduction to Recurring Themes in Energy Law

Chapter 2:       Public Utility Principles and an Overview of the Electric Power Industry

Chapter 3:       Coal Production

Chapter 4:       Oil and Gas Production

Chapter 5:       Regulating Externalities from Fossil Fuel Power Generation

Chapter 6:       Hydroelectric Power

Chapter 7:       Nuclear Power

Chapter 8:       Utility Ratemaking Basics and Case Study

Chapter 9:       Open Access in Oil and Gas Markets

Chapter 10:     Electric Power Markets

Chapter 11:     Renewable Power

Chapter 12:     Renewable Project Development Case Studies

Chapter 13:     Conservation and Efficiency

Chapter 14:     International Energy Markets

Chapter 15:     Energy Use in Transportation

 

Energy Law’s Moment: Turning Points, A Growing Field, and the New Energy Law and Policy Book

Intro: James Coleman, Guest Blogger: Alexandra Klass

Energy law is at a renaissance moment. Nearly every day, judges and regulators across the continent are making decisions on energy policy and infrastructure that will determine the energy future of the United States for decades to come. Increased production of tight oil and shale gas from the fracking boom and bitumen from the Canadian oil sands have created a strong demand for new modes of oil and gas transport. This demand has been matched by pushback from environmental groups seeking new legal tools to challenge these projects and avoid locking in fossil fuel infrastructure.

Electricity production is at the same kind of turning point. U.S. reliance on coal-fired electricity is being challenged by forthcoming climate and environmental regulations in tandem with cheap gas and falling renewable prices. Thus, forthcoming legal decisions are subjecting both the electricity and oil and gas sectors to substantial uncertainty, and the results will determine the future of energy markets in the United States. (See, for example, this recent post on state renewable energy standards, this post on forthcoming climate regulations on coal plants, and this one on the Keystone XL pipeline review.)

At the same time, energy law is one of the few bright spots for law students in a difficult legal job market. The Dean of Brooklyn Law School, Nicholas Allard, recently noted that, in contrast to nearly every other legal field, there has been an “avalanche of legal work in energy.” Student and scholarly interest has followed suit.

As a result, I’m delighted to welcome Alexandra Klass of the University of Minnesota Law School to Energy Law Prof blog. Professor Klass regularly publishes some of the most exciting scholarship in this fast-moving area of law. (See, for example, her forthcoming piece on optimal regulation of oil and gas pipelines in an era of increasing production.)

For Alex’s first post, I’ve asked her to discuss the new textbook, Energy Law and Policy, that she is releasing with four other eminent energy scholars: Lincoln Davies (Utah), Hari Osofsky (Minnesota), Joseph Tomain (Cincinnati), and Elizabeth Wilson (Minnesota—Humphrey School of Public Affairs). She informs me that book will be released in print and electronic versions on September 2, 2014, and if energy law faculty would like to have access to electronic versions of the chapters before then for teaching in the fall 2014 semester, you can contact her or any of the other authors.

 


Our New Book: Energy Law and Policy (Davies, Klass, Osofsky, Tomain, Wilson)

Alexandra Klass

Energy is one of the foremost issues of our time. The energy sector is immense—accounting for $15 trillion of GDP and touching every part of the economy and every one of our lives. At the same time, the energy policy conversation is changing. Climate change, energy security, and environmental responsibility mean that the energy law of the future must address the ecological consequences of unconstrained fossil fuel consumption.  However, much of the public dialogue about these important transitions is highly politicized, and fails to situate individual issues within the energy system as a whole.

In Energy Law and Policy, we break away from the traditional approach of looking at energy resources one at a time to try to provide that more holistic view.  The design of our book seeks to account for the complex, interrelated energy systems that buttress society, while addressing the grand energy challenges humanity faces today.

The book is organized into three parts that introduce students to the fundamental aspects of the energy sector, energy law, and the most pressing energy topics of the 21st century.

Part I presents an overview of energy resources and markets. It identifies the book’s primary themes: (1) the relationship between regulation, markets, and technological innovation; (2) the federalism issues that arise from the interaction of key regulatory actors; and (3) the transition to cleaner energy. This Part also introduces the major sources of energy and the evolving law governing their extraction.

In Part II, we discuss energy in terms of the electricity and transportation sectors that rely upon these energy resources. The U.S. energy profile can be roughly divided into oil for transportation and electricity for cooling, lighting and other uses. This Part introduces traditional regulation in both of these sectors, and the ways in which law and policy for transportation and electricity are now in transition.

Part III turns to the pressing energy challenges of the day. It presents case studies on the Smart Grid, the electrification of vehicles, the role of nuclear energy in a clean energy future, and new and expanding energy extraction technologies such as deepwater drilling and hydraulic fracturing. Energy Law and Policy thus seeks to provide a solid understanding of the current energy regulatory regime, and to equip students with materials to anticipate future challenges and opportunities.

The book contains cases, sample statutes and regulations, and pertinent excerpts from energy law and policy experts. These policy-oriented, often empirical materials offer the necessary building blocks for a public law course, particularly one that covers a rapidly transitioning field.

The book aims to provide an introduction to energy law and policy both for students who seek to practice in the field and for those interested in better understanding this fascinating, critical area of law. The book introduces the key jurisdictional actors that play differing roles in energy controversies and provides students with an understanding of the multi-jurisdictional approach to energy regulation pervasive in the United States.

Throughout, the book highlights the debate over whether and how society can transition to a clean energy future. Trillions of dollars of sunk costs, and current institutions bound by the multitude of laws that favor and support the dominant energy model, challenge any kind of energy law transition.

Our book seeks to orient students with the existing modes of energy regulation, while equipping them to address the challenges that will be faced by the energy lawyer of the future. We think it is critical for the next generation of energy lawyers to understand the energy system holistically and to think creatively about our options in this time of transition.