Electricity – Page 5 – Energy Law Professor

Eminent Domain for Exporting Energy?

June 3, 2019 energylawprof Leave a comment

Eminent domain is the controversial exception to the general rule that no one can take your land without your consent. The Fifth Amendment to the U.S. Constitution allows the government to take your land for “public use” so long as it pays you fair compensation.

But what is a public use? Should pipelines and power-lines that help companies export energy to other states and countries count as a public use? Is it legitimate for states to let energy transport companies use eminent domain to serve the public in other states or countries?

This issue—”which public?”—is an increasing focus of litigation across the United States because many state laws and constitutions, like the federal constitution and federal laws, limit eminent domain to projects that serve a “public” purpose. At the same time, increasingly integrated North American energy markets mean that more and more electricity, oil, and gas are crossing state and national borders.

Just last Friday, the Iowa Supreme Court held that sending oil to neighboring states can count as a public use. But there is also a broad movement for a go-it-alone eminent domain policy, including court decisions in West Virginia and Kentucky that say out-of-state consumers don’t count as the “public.” And the D.C. Circuit is now considering a similar challenge to a natural gas pipeline that will allow some natural gas to be exported to Canada.

As I argue in this o p-ed, it would have been a huge mistake for Iowa to adopt a go-it-alone eminent domain policy. Iowa has world-class wind power that will be most valuable if Iowa can export it to states like Illinois that have more people and less wind. A no-eminent-domain-for-export policy would have been terrible for Iowa.

More broadly, there are huge benefits from interstate and international energy trade. For decades, Canada has sent us affordable oil and cheap, clean hydropower. And states that have affordable oil and hydropower generally export to states that do not. If there was no eminent domain for export power-lines and pipelines, we all would be stuck paying more for dirtier energy.

And we need energy transport now more than ever. As I explain here, the U.S. is in the middle of three energy booms: history’s biggest oil rush plus more natural gas and more renewable power. Oil has many ways to get to market—pipeline, truck, rail, and boat—but natural gas and renewable power production depend on transport. Natural gas has environmental benefits if it can be piped to places that need to replace coal and oil. Solar and wind can provide cheap, clean energy if we build power-lines to take it to market. And new pipelines and power-lines would help American companies and landowners get more money for their gas and power.

None of that will be possible, however, if go-it-alone state policies make it impossible to bring energy where it is needed. Landowners are rightly concerned about eminent domain and governments should reform the eminent domain process and offer more compensation to protect them as I suggest in my forthcoming Minn. L. Rev. article with Alexandra Klass. But ignoring interstate and international consumers is not a sensible reform and would cut off much of the promise of the new U.S. energy economy.

“NGOs and the Politics of Energy Market Entry”

June 1, 2019 energylawprof Leave a comment

David Spence has posted a fascinating new study of how nongovernmental organizations (NGOs) oppose new energy projects—not just pipelines and fossil fuel projects, but also new wind and solar power and power-lines to support renewable power. He builds a database of NGO action on energy projects and shows how social media and polarization are driving increased opposition to new energy projects.

Here’s the abstract:

The modern regulatory state is a creature of 20th century politics, and the New Deal consensus that dominated thinking about the relationship between government regulation and the market for most of that century. That regime exists now in a very different political environment, one in which parties and voters are more ideologically polarized and digitally connected than at any time in the modern regulatory era. This article examines the influence of this new politics on one such 20th century regulatory system — the regulation of energy market entry — through the lens of nongovernmental organizations (NGOs) that participate in energy infrastructure siting conflicts. The analysis is built around a data set comprising information about more than 400 nongovernmental organizations (NGOs) whose missions include active opposition to one or more of nine different types of energy projects between 2000 and 2017, including various types of fossil fuel infrastructure, renewable energy facilities, and smart grid technology. The focus is on the tactics and the issue arguments each NGO uses to oppose energy projects. The results are consistent with the notion that ideological polarization and digital communication are affecting the nature of siting conflicts over energy infrastructure. NGOs devote the lion’s share of their efforts not to inside strategies like formal lobbying, but rather to mobilizing the broader public to lobby decision-makers, and organize those mobilization efforts focus overwhelmingly around environmental and health risk issues. This holds true not only for dirty energy projects like coal-fired power plants whose health and environmental risks are well-known; but for clean energy projects like wind farms as well.
From NGOs’ point of view, this form of mass mobilization is efficient: digital communication tools enable NGOs to transmit messages almost costlessly, and to target audiences that are particularly receptive to their messaging. NGOs may prefer risk-based appeals because they resonate. We find that local NGOs in particular tend to make more hyperbolic risk claims than national NGOs. If local NGOs need to build a broader base of support for their cause in order to improve the probability of victory, this approach is rational. The article explores some of the implications of this increasingly fraught regulatory environment. To be sure, the regulatory process grants agencies plenty of autonomy, and regulators continue to be responsible for balancing energy security, affordability and environmental performance concerns in making siting decisions. However, the new politics of energy market entry holds out the possibility that the use of sophisticated digital communication tools to exploit risk perception biases (to more effectively amplify perceived risk) may slow efforts to green the energy supply and produce siting decisions that have other economically and environmentally counterproductive consequences.

The piece is titled “NGOs and the Politics of (Energy) Market Entry.” It is forthcoming in the Notre Dame Law Review and available here: https:// https://ssrn.com/abstract=3337957

Alberta’s New Climate Plan: Can Alberta Be a Model for Texas?

November 26, 2015 energylawprof Leave a comment

Courtesy of the Alberta Energy Regulator

On Monday, Premier Rachel Notley announced Alberta’s new climate plan, which is supported by a detailed report from a panel of experts. The centerpiece of the plan is a $30/tonne price on carbon emissions in Alberta that is implemented through a modified tax dubbed a “carbon competitiveness regulation.” The plan also includes more targeted measures aimed at phasing out coal power, boosting renewable power, lowering methane emissions, and capping emissions from the oil sands.

The most important question about Alberta’s regulation is whether it will encourage other jurisdictions to follow suit. Alberta’s carbon emissions are just under 1% of the global total so it cannot do much to slow climate change by itself. But if Alberta can make stringent carbon regulations work in an energy-producing economy, it could stand as an important example for other energy producing jurisdictions.

As a result, Alberta’s plan may be the most important climate announcement of the year. To achieve the world’s climate goals, major energy producers around the world will have to lower their carbon emissions. But Texas and North Dakota or, for that matter, Russia and Saudi Arabia, aren’t looking to California or Europe for inspiration on climate policy. They will, however, be watching to see whether Alberta’s plan works out.

Alberta’s Announced Carbon Policy

Under the new plan, Alberta’s carbon price will rise to $20/tonne in 2017 and $30/tonne in 2018 and it will apply to anyone that burns or sells fossil fuels. The carbon tax’s design—known as the “carbon competitiveness regulation”—is more complex than its headline numbers suggest. Large industrial facilities, such as the oil sands, will receive credits from the government toward compliance and the companies that produce the least carbon-per-barrel will have more credits than they need to comply. These companies can then sell their excess credits to less-efficient companies who will snap up any credits sold at less than the headline carbon price. So even after 2018, companies may sometimes pay a bit less than $30/tonne of emissions and they will receive a substantial subsidy for their production, which will limit the net impact of the policy on industry.

On the other hand, the baseline carbon price is intended to rise over time slightly faster than inflation “as long as similar prices exist in peer and competitor jurisdictions.” About 90% of Alberta’s exports go to the United States, where there is no carbon price. So this may mean that the price will stay at $30/tonne until the U.S. takes similar action on climate.

Alberta’s proposed climate plan has other elements but the government has not yet revealed exactly how they will work. First, the province will take steps beyond the carbon price to make sure that coal-power is phased out by 2030. Alberta is targeting coal because it emits more carbon and air pollution than Alberta’s other sources of electricity. At the same time, Alberta will provide extra funding for renewable power through a “clean power call” that pays extra for sources like solar power and wind power.

Alberta also aims to cut methane emissions from the oil and gas sector 40% by 2030. The panel proposes to start cutting methane by providing offset credits to companies that find ways to reduce their emissions; these credits may be a cheaper way to comply with the carbon competitiveness regulation. After five years, the government would begin to mandate reductions to ensure that the oil and gas sector meets the 40% target by 2030.

Finally, Premier Notley also announced that carbon emissions from the oil sands would have a special 100 megatonne annual cap. (This policy is not contained in the panel’s recommendations to the government.) Right now, the oil sands emits about 70 megatonnes of carbon per year so it might eventually bump up against this cap if production continues to expand without efficiency improvements. But given lower oil prices and slower projected growth of the oil sands, emissions will probably not approach this cap for a decade, particularly because the cap includes exemptions for co-generation and crude processing. Ultimately, this supposed cap may be helpful rhetorically but it’s hard to say whether future governments would stick by it if it ever threatened to have real economic consequences.

The Big Question: Will Alberta’s Carbon Plan Encourage Action Elsewhere?

Unilateral climate regulations such as Alberta’s plan are politically challenging because they impose costs without providing any immediately obvious benefit. Clean air and clean water rules impose costs but provide citizens with the benefit of clean air and clean water. Climate change, on the other hand, is caused by global emissions so Alberta’s climate regulation will only provide tangible benefits if it encourages other provinces and countries to follow suit.

Premier Notley also implied that the new climate plan will have an indirect benefit by improving Alberta’s reputation in the U.S, and thus reducing foreign resistance to pipelines carrying Canadian crude such as the Keystone XL pipeline. This is a long-shot. Opposition to the Keystone pipeline was never conditional on the stringency of Alberta’s regulation. As I explain in this presentation, most U.S. opposition to the Keystone pipeline came from groups that are opposed to all new fossil-fuel infrastructure. Many Canadians favor both stronger climate regulation and better access to markets for Canadian crude; it would be pleasant to think that accomplishing one goal would lead to the other, but there is little evidence for this comforting theory.

So the success of Alberta’s carbon policy will be determined by whether it convinces other countries that its stringent carbon policy is workable in a major energy-producing economy. Like any carbon price, Alberta’s will encourage everyone in the province to burn less fuel by raising the price of electricity, natural gas, and gasoline. It will raise the average household’s cost of heat, power, and transport by about $500 a year.

Despite its costs, economists say this kind of carbon tax is the cheapest way to reliably lower carbon emissions because all carbon reduction policies have costs. But if you were a political leader in Texas or North Dakota or Russia would you follow suit? Would you be willing to impose these costs on your local economy to address a global problem like climate change?

There’s reason for hope: after all, governments raise taxes on their own businesses all the time. Carbon taxes may not be any more politically dangerous than other broad-based taxes such as a sales tax. And a carbon tax probably does less harm to the economy than common taxes such as those on corporate income. So countries or provinces can actually help both the planet and their economy by adopting a carbon tax and using the money to lower distortionary taxes like the corporate income tax. When a carbon tax is only used to replace other taxes, that’s called a “revenue-neutral” carbon tax, and it is what British Columbia has been using since 2008.

Alberta, however, chose not to take this route. Instead, Premier Notley said the government would “reinvest” much of the new revenue in green infrastructure, renewable energy, and efficiency programs. Alberta will rebate some of the costs of the program to low and middle-income consumers, but it is not yet clear how it will do this. So far, there is no indication that the government will use the revenue to reduce distortionary taxes.

Oddly, during the announcement, Premier Notley claimed that the new carbon tax would be revenue-neutral, because all the revenue will be “recycled back into the Alberta economy”—apparently she meant that the government will spend all the revenue it takes in. But that’s not what “revenue-neutral” means, and it is dangerous to call such a tax “revenue neutral.” Conservatives often point to British Columbia’s tax as an example of how climate regulation can be consistent with the small government principles that often drive policy in energy producing jurisdictions. These advocates of revenue neutral carbon taxes won’t get very far if “revenue neutral” becomes a euphemism for higher taxes and higher spending.

Alberta’s new climate policy will be one of the most carefully watched experiments in climate policy and it could change perceptions of what is possible in a major energy exporter. Much will depend on its success.

Supreme Court: EPA Should Have Considered Cost When Deciding Whether Mercury Limits For Power Plants Were Appropriate

June 29, 2015 energylawprof Leave a comment

Today the United States Supreme Court held that the Environmental Protection Agency (EPA) improperly refused to consider costs when determining whether it was “appropriate and necessary” to regulate mercury emissions from power plants under the Clean Air Act. Ultimately, EPA may be able to keep the same rules after going back and explaining why the cost of the regulations is justified in the circumstances. But the decision is an important victory for advocates of cost-benefit analysis and those who think environmental agencies should pay more attention to the costs of regulation.

Section 112 of the Clean Air Act directs EPA to regulate hazardous air pollutants from power plants if it finds “regulation is appropriate and necessary.” 42 U.S.C. §7412. EPA said that regulation was “appropriate and necessary” even without considering costs because 1) power plant emissions posed risks to human health and the environment that were not eliminated by other provisions of the Clean Air Act and 2) there were controls available to reduce those dangerous emissions. So there was no need for EPA to consider costs to make its initial decision to regulate, but it promised to consider costs when adopting the actual final regulations for power plants.

Although EPA said it ignored costs when it made its initial decision to regulate, it still estimated the costs and benefits of the final rules that it adopted. EPA estimated that its rules would cost power plants $9.6 billion dollars a year. EPA couldn’t estimate all the possible benefits of limiting mercury emissions, but the little it could quantify came to about $5 million a year—less than 0.1% of the cost of the rule. On the other hand, EPA said that cleaning up mercury would have massive side benefits: it would lower sulfur dioxide emissions and these reductions would be worth between $37 and $90 billion per year. So these ancillary benefits far outweighed the costs of EPA’s rule, but if you didn’t count them, EPA’s rule imposed costs far in excess of its benefits.

Justice Scalia, writing for a 5-4 majority, held that EPA must consider the costs of regulation before making its initial decision to regulate, reasoning that “No regulation is ‘appropriate’ if it does significantly more harm than good.” The four dissenters conceded that, generally speaking, “an agency must take costs into account in some manner before imposing significant regulatory burdens” but agreed with EPA’s argument that the agency could consider those costs later when adopting regulations for specific source categories.

The Supreme Court’s decision may not have much impact on mercury regulation. Power utilities are already complying with the mercury rules that the court struck down in this case. And the case will now go back to the appellate court, which could decide to leave the rules in place while the agency rethinks whether these rules are “appropriate and necessary” factoring in the costs that they impose. EPA already determined that the benefits of the rules far outweighed their costs if you consider ancillary benefits, so it will probably reach the same decision. On the other hand, the Court’s decision raises very important questions for the future.

First: Can agencies consider ancillary benefits? At oral argument, some justices seemed to suspect it was inappropriate to consider the benefits associated with pollutants other than mercury. After all, if the other pollutants are the problem, why not adopt regulations aimed at the other pollutants? On the other hand, it has long been standard practice for agencies to consider ancillary or “co-benefits” of reducing pollutants other than the main target of regulation. If an agency is going to consider all the important costs of a regulation, why shouldn’t it consider all the important benefits? In some ways, the mercury rule may just be an outlier case because EPA estimated that the co-benefits of reducing sulfur dioxide were 10,000 times greater than the direct benefits of reducing mercury itself. But over half of the benefits of EPA’s Clean Power Plan come from co-benefits in reducing pollution other than greenhouse gases, so the question does have wider importance.

Second: How much cost-benefit analysis will the Court require for other regulations? Today’s decision may be seen as part of a trend that is making cost-benefit analysis a kind of default background principle for agency decision-making. Just fourteen years ago, Justice Scalia wrote an opinion for eight justices, holding that EPA could not consider the cost of regulation when the Clean Air Act demanded a standard at the level “requisite to protect the public health.” In that case, Justice Scalia explained that EPA could consider costs later when it implemented the standard. Last year, the Court held that EPA could consider the cost of emissions controls when it decided whether a State “contributed significantly” to air pollution in another state; Justice Scalia dissented. Now, the Court holds that EPA must consider the cost of regulation when it determines whether regulation is “appropriate and necessary.” Justice Scalia writes the opinion, and all justices agree that EPA must consider costs at some stage. Observing this trend, litigants will feel increasingly bold to demand that EPA consider the costs at each stage of adopting new environmental regulations.

May Provinces (or States) Limit Imports on the Basis of Greenhouse Gas Emissions Elsewhere?

April 15, 2015 energylawprof Leave a comment

By James Coleman & Martin Olszynski

Last week, a group of economists known as “Canada’s Ecofiscal Commission” issued a much-discussed report that urged Canada’s individual provinces to drive Canadian climate policy by adopting their own carbon pricing schemes. But the report barely touched on one of the key challenges for provincial or state regulation without the support of the national government: what may places that price carbon do to avoid losing industry to places that don’t?

This is an urgent question across North America because, for different reasons, Canada and the United States are unlikely to adopt uniform nationwide climate policies in the near future.[1] Instead, climate regulation will be somewhat different in each state and province. But states and provinces lack a key power that national governments use when they adopt climate regulation: the power to adopt trade regulations that control imports. The nation is an economic union so provinces can’t limit trade across their borders.

Climate and trade policies often go hand-in-hand because nations that limit carbon emissions worry they will lose industry to nations that do not. After all, if emissions merely shift to other nations, a phenomenon known as “carbon leakage”, a single nation’s carbon policies won’t do much to help the global climate. One way around this problem is to charge a “carbon tariff” on imports that were produced in nations that do not have similar limits on carbon emissions. This charge is calculated by estimating how much carbon was emitted to produce the imported product and then multiplying that quantity by the importing country’s carbon price. These tariffs are sometimes called “border adjustments” because, in theory, they are supposed to level the playing field between domestically regulated producers and unregulated foreign ones.

You can’t set up a customs house between Manitoba and Ontario, so provinces can’t charge a regular carbon tariff. But states and provinces have found a roundabout way to do more-or-less the same thing. For instance, California and Quebec both have cap-and-trade systems that force power plants to purchase a permit for each ton of carbon that they emit into the atmosphere. Crucially, these cap-and-trade systems also apply to power plants in other states that export electricity to California and Quebec. The effect is the same as the customs house: when a purchaser imports electricity into California or Quebec it must pay a charge for all the carbon that was emitted elsewhere to produce that electricity.

So can states and provinces place a charge on imports that accounts for how much carbon was emitted elsewhere to produce them? It’s a crucial question because such charges could apply to all kinds of goods, not just to electricity. Provinces like British Columbia and states like California are already setting standards for motor fuels that effectively charge imported fuels for the greenhouse gases that were emitted elsewhere in their production. And in theory the same charges could apply to any kind of good. You would just add a surcharge to every item based on the greenhouse gases that were emitted elsewhere to produce it: television sets, fruit, toys, you name it.

In fact, state and provincial climate regulations across North America are increasingly adopting exactly these kind of controls, adding urgency to the underlying legal question: may energy importers export their regulation to cover emissions outside their borders? In the absence of national action on climate change, provinces are looking for creative ways to make sure that they don’t lose industry to provinces that don’t regulate, so they’re regulating imports based on carbon emissions elsewhere.

Canada’s Ecofiscal Commission is recommending provincial action on climate but it has little to say on this crucial topic, and what it says is confusing. The report’s section on “competitiveness” has a subheading titled “Border adjustments could level the playing field,” which sounds promising. It then says “border adjustments could not be implemented by a single province, but would require involvement by the federal government,” which is a major qualification. But then it states that, after all, such adjustments are possible for “specific emissions that fall under provincial jurisdiction” and cites the example of Quebec’s electricity imports. For this proposition it cites a white paper on a U.S. cap-and-trade system written by U.S. law students.

This issue is too important to gloss over. If states and provinces are going to lead the fight against climate change, many legal decisions and many academic pieces will be written on the topic before it is resolved. This post merely flags some of the key rules and arguments that will be in play.

The normal rule has been that states and provinces may not adopt regulations for pollution emitted in other states. These forbidden rules are known as “extraterritorial” regulations. In Interprovincial Co-Operatives Ltd. v. Dryden Chemicals Ltd, the Supreme Court of Canada held that Manitoba could not make a law punishing companies that lawfully emitted pollutants in Saskatchewan and Ontario, even if those pollutants made their way into Manitoba. The rule in the United States is more complicated, but under what is known as the “dormant commerce clause”, the U.S. Supreme Court has held that states cannot adopt a law “if the practical effect of the regulation is to control conduct beyond the boundaries of the State.”

One important reason for the normal rule is that if provinces or states began banning products that were produced elsewhere in ways that they didn’t like, they would quickly run afoul of international trade laws. For example, if Ontario banned all products made by laborers that were not paid its $11 per hour minimum wage that would, as a practical matter, end imports from the developing world. It would also conflict with the General Agreements on Tariff and Trade that govern international trade.

On the other hand, the traditional rule against extraterritorial regulation is on somewhat tenuous footing. In Canada, Interprovincial Co-Operatives involved a 3-1-3 split, which makes the primary ruling open to debate. The decision is also four decades old and has been heavily criticized, including by one of Canada’s leading constitutional scholars. See Peter Hogg, Constitutional Law of Canada, 5^th ed., (2007) at 13-10. Similarly, in the United States, scholars and judges have suggested that limits on extraterritorial regulation should be abandoned.

Suffice it to say that import regulations may have a better chance of being upheld where their extra-provincial effects are deemed incidental to their primary purpose, or “pith and substance” in Canadian jurisprudential terms. Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 SCR 297. See also Shi-Ling Hsu and Robin Elliot, “Regulating Greenhouse Gases in Canada: Constitutional and Policy Dimensions” (2009) 54 McGill L.J. 463.

And perhaps the normal rule should bend in the case of provincial climate regulation. For one thing, even if carbon emissions occur in Alberta, they still affect the global climate, which could harm Ontario, Quebec, and every other place in the world. For the same reason, it is vital that climate regulation doesn’t just shift carbon emissions to other provinces: few will want to regulate if the provinces that do lose jobs without securing any net benefit for the climate. If we want provinces to set a model for eventual national regulations, maybe they need the same trade powers.

States and provinces also have long-standing authority to manage the mix of sources providing power to their electrical grid, which includes regulating contracts for electricity imports. This helps to ensure that power will always be available at reasonable prices. But there are limits to this authority as well: a province certainly could not prescribe the wages or working conditions for employees at power plants in other provinces. Can provinces prescribe carbon standards for power plants elsewhere under their traditional authority over electricity markets? That remains an open question.

So far, the U.S. courts are divided on whether states may regulate based on carbon emissions elsewhere. An appellate court said that California could regulate fuels based on emissions elsewhere and a district court said that Minnesota could not regulate electricity based on emissions elsewhere. The Canadian courts have not yet addressed the question. And the first two Canadian cap-and-trade systems are poor test cases because both Quebec and Ontario import far less electricity than they export. But the question will become unavoidable as more provinces adopt the kind of policies recommended in the Ecofiscal Commission’s report.

Finally, these questions will grow more pressing as long as national governments delay action to address climate change. As with recent provincial efforts to improve environmental impact assessments of interprovincial pipelines, the federal policy vacuum is pushing provinces to act on their own. In the United States, one interim solution could be for the federal government to allow non-discriminatory state regulation of energy imports. If Canada’s government is serious about sticking with provincial climate policy, it may have to consider similarly creative solutions. In the meantime, these policies will continue to present difficult and novel legal questions about the boundaries of state and provincial authority.

__________________________

[1] In Canada, the conservative government has repeatedly delayed federal climate regulations and the leader of the liberal party has pledged to leave the provinces in charge of carbon pricing. In the United States, congressional inaction has pushed President Obama to rely on a rarely-used Clean Air Act provision that requires states to adopt their own regulations for power plant carbon emissions.

Legal Debate on EPA’s Power Plan Takes Center Stage

March 30, 2015 energylawprof 2 comments

For the past two weeks, the U.S. Environmental Protection Agency’s “Clean Power Plan” for power sector carbon emissions has been the center of an ongoing debate between some of the nation’s foremost constitutional and environmental law scholars.

As described in previous posts, the Clean Power Plan aims to place caps on greenhouse gas emissions (or emissions intensity) from each of the 50 states in the U.S. To comply, states will have to use their coal plants less, increase their use of natural gas and renewable fuels, and improve their energy efficiency. A state can focus its effort more or less on each of these methods, so long as it meets its target.

In two earlier posts, I explained the Clean Power Plan, noting that it would attract legal arguments that the Environmental Protection Agency (EPA) has overstepped its legal authority, and explained how the Supreme Court’s decision in Utility Air Regulatory Group v. EPA would bolster these arguments.

Those arguments are now in full swing. Here is the back-and-forth between Professor Larry Tribe, one of the nation’s most prominent constitutional law scholars, and Professors Jody Freeman and Richard Lazarus, two of the nation’s most prominent environmental law professors. These arguments are framed as a disagreement over the constitutionality of the Clean Power Plan, but many of the arguments are really about whether EPA has the statutory authority that it claimed in the Plan.

On March 17, Harvard Law School Prof. Larry Tribe testified to the House Committee on Energy and Commerce’s Subcommittee on Energy and Power arguing that the Clean Power Plan is unconstitutional.

On March 18, Harvard Law School professors Jody Freeman and Richard Lazarus strongly disagreed, responding in an op-ed published at Harvard Law Today, titled “Is the President’s Climate Plan Unconstitutional?”

This started a significant back and forth that included:

A March 20 Harvard Law Today op-ed from Prof. Tribe titled “Why EPA’s Climate Plan Is Unconstitutional”;

A March 21 Harvard Law Today op-ed from Profs. Freeman and Lazarus: “A rebuttal to Tribe’s reply”;

A March 22 further reply from Prof. Tribe;

A March 27 “followup” from Profs. Freeman and Lazarus.

A March 29 final rebuttal from Prof. Tribe.

You may also want to check out:

An op-ed that Profs. Freeman and Lazarus wrote in Politico Magazine on March 25, titled “Larry Tribe and Mitch McConnell’s Flagrant Constitutional Error”; and

The testimony of Prof. Richard Revesz, another of the country’s foremost experts on environmental law and federalism, who testified at the same March 17 hearing in favor of the Clean Power Plan.

These arguments are just the opening skirmish in a running legal battle. If the Obama administration (and the administration that follows it) stays the course on the Clean Power Plan, the arguments will finally be resolved in court.

Greenpeace v. Canada: Symbolic Blow to the Nuclear Industry, Game-changer for Everyone Else?

June 16, 2014 energylawprof Leave a comment

Please welcome guest blogger, Martin Olszynski, who is an Assistant Professor at the University of Calgary’s Faculty of Law. Martin has written extensively on environmental assessment, so I am delighted to publish his thoughts on the Federal Court of Canada’s recent decision in Greenpeace v. Canada, which may have important implications for several high-profile energy projects that are currently under consideration in Canada, as well as environmental assessment law in general.

By Martin Olszynski

In a rather lengthy (431 paragraphs) decision, the Federal Court of Canada agreed with Greenpeace and other environmental groups that portions of the Joint Review Panel report for the Darlington New Nuclear project proposed by Ontario Power Generation were inadequate. See Greenpeace Canada v. Canada (Attorney General), 2014 FC 463 (CanLII). Justice Russell held that the environmental assessment conducted by the Panel failed to comply with the Canadian Environmental Assessment Act, SC 1992 c 37 (essentially Canada’s version of the United States National Environmental Policy Act). Specifically and as further discussed below, there were gaps in the treatment of hazardous substances emissions and spent nuclear fuel, and a failure to consider the effects of a severe “common cause” accident such as the combined earthquake and tsunami that caused the Fukushima nuclear disaster.

As noted by the media, while the decision is of limited effect on a project already indefinitely postponed by the provincial government, “it is a symbolic blow to an industry coping with the public and political fallout from Japan’s 2011 Fukushima meltdown.” As further discussed below, the decision is also likely to have implications for environmental assessment in Canada generally and several other projects currently making their way through either the regulatory process or the courts, including three projects in Western Canada that have received international attention: Taseko’s New Prosperity mine, Enbridge’s Northern Gateway pipeline and Kinder Morgan’s Trans Mountain pipeline.

Background

In the fall of 2006 and under direction from the Ontario Minister of Energy, Ontario Power Generation applied to the Canadian Nuclear Safety Commission for a site preparation license for several new reactors at its existing Darlington nuclear plant in Bowmanville, Ontario. Application for this license, as well as for authorizations under the federal Fisheries Act RSC 1985 c F-14 and the Navigable Waters Protection Act RSC 1985 c N-22 (now the Navigation Protection Act), triggered the application of the-then CEAA (since replaced with the Canadian Environmental Assessment Act, 2012 SC 2012 c 19). The project was referred to a “joint review panel” in 2008 and a three-member panel was appointed in 2009. Following 284 information requests and seventeen days of hearings in the spring of 2011, the panel submitted its final report to the federal Minister of the Environment in August of that same year, concluding that the project was not likely to result in significant adverse environmental effects. Greenpeace and the other applicants challenged the adequacy of the environmental assessment and panel report shortly thereafter.

Justice Russell summarized the applicants’ argument as follows:

[127] As identified in the Report, the [joint review panel] itself found that key information about the proposed Project was absent from the [environmental assessment] documentation. For example, the Panel found that no specific nuclear reactor technology, site design layout, cooling water option, used nuclear fuel storage option, or radioactive waste management option has been selected. Thus, at the present time, federal decision-makers still do not know: (a) the particulars of the specific project to be implemented at the Darlington site; (b) the full range of site-specific or cumulative environmental effects; or (c) whether there are feasible mitigation measures over the project’s full lifecycle. These and other fundamental gaps are attributable to the fact that what the [joint review panel] had before it was not a “project”, but merely a plan for future planning, assessment, and decision-making.

(See paras 218 – 220 for the full list of alleged gaps and deficiencies)

The reason that so many project components remained unspecified was that Ontario Power Generation, with the panel’s blessing, had prepared its environmental impact statement based on a “plant parameter envelope” or “bounding scenario” approach. As described by Ontario, “this approach involves identifying the salient design elements of the Project and, for each of those elements, applying the ‘limiting value’ (the value with the greatest potential to result in an adverse environmental effect) based on the design options being considered” (at para 5). The respondents argued that such an approach was consistent with the requirement, pursuant to section 11 of the CEAA, to conduct the assessment as early as practicable in the planning process and before irrevocable decisions are made (at para 66), and further that it was supported by the case law (at para 72).

Decision

After a thorough review of the statutory regime and associated jurisprudence, Justice Russell concluded that there was nothing that precluded the adoption of the plant parameter envelope approach per se (at para 181). However, he did find inadequacies with the panel’s treatment of three specific issues (at para 228):

The failure of the Panel to insist on a bounding scenario analysis for hazardous substance emissions, in particular liquid effluent and stormwater runoff to the surface water environment, and for the sources, types and quantities of non-radioactive wastes to be generated by the project;
The Panel’s treatment of the issue of radioactive waste management; and
The Panel’s conclusion that an analysis of the effects of a severe common cause accident at the facility was not required at this stage, but should be carried out prior to construction.

In assessing these matters, Justice Russell accepted the applicants’ argument – unchallenged by the respondents and somewhat unique to the Canadian legislation and the broader Parliamentary context within which it operates – that the environmental assessment process under CEAA is fundamentally different from future licensing or regulatory processes (at para 230), and that there is therefore a limit as to the extent to which the consideration of environmental effects and their mitigation can be left to those later processes (Justice Russell described this as a matter of improper delegation):

[232] Under the CEAA, the ultimate decision-maker for projects referred to review panels is the Governor in Council (in practical terms, the federal Cabinet), which decides whether the responsible authorities will be permitted to take steps to enable the project to move forward. Parliament chose to allocate this decision to elected officials who are accountable to Parliament itself and, ultimately, to the electorate…

[235] The most important role for a review panel is to provide an evidentiary basis for decisions that must be taken by Cabinet and responsible authorities. The jurisprudence establishes that gathering, disclosing, and holding hearings to assemble and assess this evidentiary foundation is an independent duty of a review panel, and failure to discharge it undermines the ability of the Cabinet and responsible authorities to discharge their own duties under the Act [citing Pembina Institute for Appropriate Development v Canada (Attorney General), 2008 FC 302 (CanLII) at paras 72 – 74]…

[237] In short, Parliament has designed a decision-making process under the CEAA that is, when it functions properly, both evidence-based and democratically accountable. The CNSC [Canadian Nuclear Safety Commission], in considering future licensing decisions, will be in a fundamentally different position from the Panel that has conducted the EA. The CNSC will be the final authority making the decision, not merely an expert panel. Although the CNSC approaches this role with considerable expertise, it does not have the same democratic legitimacy and responsibility as the federal Cabinet.

(Emphasis added)

With respect to the respondent’s plant perimeter envelope approach, which the panel acknowledged was a departure from typical EA practices, this meant that it “was incumbent on the Panel to ensure the methodology was fully carried out” (at para 247), bearing in mind also the challenges that such an approach poses for public participation: “The less specific the information provided… the more difficult it may be for interested parties to challenge assumptions, test the scientific evidence, identify gaps in the analysis, and ensure their interests are fully considered” (at paras 247, 249).

Applying this standard to hazardous substance emissions and on-sitechemical inventories, Justice Russell concluded that the environmental assessment came up short. He noted Environment Canada’s submissions to the panel that, notwithstanding several information requests to Ontario Power Generation, the remaining gaps prevented the department from assessing effects with respect to effluent and storm water management (at paras 257 – 259). The panel itself noted that “[Ontario Power Generation] did not undertake a detailed assessment of the effects of liquid effluent and storm water runoff to the surface water environment” but that it “committed to managing liquid effluent releases in compliance with applicable regulatory requirements and to applying best management practices for storm water” and on this basis concluded that the project was not likely to result in significant adverse environmental effects (at paras 264, 265).

In a passage that is sure to interest administrative law scholars and practitioners (and discussed further below), Justice Russell held that while such a conclusion may be reasonable, it did not comply with CEAA:

[272] To repeat what is stated above, because of its unique role in the statutory scheme, a review panel is required to do more than consider the evidence and reach a reasonable conclusion. It must provide sufficient analysis and justification to allow the s. 37 decision-makers to do the same, based on a broader range of scientific and public policy considerations. One could say that the element of “justification, transparency and intelligibility within the decision-making process” (Dunsmuir, above, at para 47; Khosa, above, at para 59) takes on a heightened importance in this context.

[273] In this case, there are references to commitments by [Ontario Power Generation] to comply with unspecified legal and regulatory requirements or applicable quality standards, and to apply good management practices. There are references to instruments that may or may not contain relevant standards or thresholds based on the information before the Court (e.g. the Ontario Stormwater Management Planning and Design Manual (March 2003)). And there are references to thresholds or standards in statutory instruments (e.g. Fisheries Act, Canadian Environmental Protection Act) without specific information about how these are relevant to or will bound or control the Project’s effects…

[275] In essence, the Panel takes a short-cut by skipping over the assessment of effects, and proceeding directly to consider mitigation, which relates to their significance or their likelihood. This is contrary to the approach the Panel says it has adopted (see EA Report at p. 39), and makes it questionable whether the Panel has considered the Project’s effects at all in this regard.

(Emphasis added)

This is not to suggest that future regulatory processes “have no role to play in managing and mitigating a project’s environmental effects” (at para 241). For Justice Russell, a conceptual distinction can be made between two kinds of situations where a panel, despite some uncertainty, might conclude that significant adverse environmental effects are unlikely (at para 280):

(a) Reliance upon an established standard or practice and the likelihood that the relevant regulatory structures will ensure compliance with it; or

(b) Confidence in the ability of regulatory structures to manage the effects of the Project over time.

The latter approach is problematic in that it “may short-circuit the two-stage process whereby an expert body evaluates the evidence regarding a project’s likely effects, and political decision-makers evaluate whether that level of impact is acceptable in light of policy considerations, including “society’s chosen level of protection against risk” (at para 281, referring to the Government of Canada’s policy on the application of the precautionary principle and adopted by the Darlington panel).

Turning next to the issue of spent nuclear fuel, there does not appear to have been any real dispute between the parties that the panel’s treatment of this issue was cursory. Rather, the respondents’ position was that this was something that Canada had mandated the Nuclear Waste Management Organization (NWMO) to study. Justice Russell disagreed:

[297] In my view, the record confirms that the issue of the long-term management and disposal of the spent nuclear fuel to be generated by the Project has not received adequate consideration. The separate federal approvals process for any potential NWMO facility, which has not yet begun…will presumably ensure that such a facility is not constructed if it does not ensure safety and environmental protection. But a decision about the creation of that waste is an aspect of the Project that should be placed before the s. 37 decision-makers with the benefit of a proper record regarding how it will be managed over the long-term, and what is known and not known in that regard. (emphasis added)

According to Justice Russell, the management and storage of spent nuclear fuel was not a “separate issue” (at para 312). Rather, the environmental assessment “is the only occasion…on which political decision-makers at the federal level will be asked to decide whether that waste should be generated in the first place” (ibid). Nor was there anything in the Terms of Reference that suggested that this issue was not to be addressed (at para 313).

Finally, with respect to a severe “common cause” accident (e.g. as a result of both an earthquake and flooding), the problem was not that Ontario Power Generation failed to assess the risks of accidents associated with its new build (at para 327) but rather that it failed to assess these risks in conjunction with the existing Darlington plant. The panel itself recognized this gap and recommended an evaluation of “the cumulative effect of a common-cause severe accident involving all of the nuclear reactors in the site study area” prior to construction (Recommendation # 63). For Justice Russell, however, that was insufficient:

[334] In my view, the one conclusion that is not supported by the language of the statute is the Panel’s conclusion that the analysis had to be conducted, but could be deferred until later. Rather, in my view, it had to be conducted as part of the EA so that it could be considered by those with political decision-making power in relation to the Project.

In light of these three deficiencies, and as was the case in Pembina Institute cited above, the Court remitted the Report to the panel for further consideration, pending which the relevant government agencies have no jurisdiction to approve the project.

Discussion

Justice Russell’s thorough treatment of the federal environmental assessment regime means that the decision is likely to have implications going forward. This is so because, notwithstanding the fact that Greenpeace dealt with the prior CEAA regime and CEAA 2012 is in many ways different, the provisions dealing with a panel’s duties and political decision-making are effectively unchanged. These implications, as well as Justice Russell’s somewhat unprecedented but in my view correct approach to judicial review in this context, are further discussed below.

Failure to Assess Environmental Effects “Short-Circuits” the CEAA Regime

Perhaps the most important take-away message from Greenpeace is that, generally speaking, Panels must do the work of actually assessing potential environmental effects and their mitigation. This is a necessary consequence of CEAA’s two-step decision-making process, which Justice Russell describes as “evidence-based and democratically accountable.” Democratic accountability is hindered where the evidence with respect to potential adverse environmental effects is missing, inadequate or postponed to some future regulatory proceeding. This finding, supported by prior jurisprudence and the 2008 Pembina Institute decision in particular, is likely to cause problems for both Taseko’s proposed New Prosperity mine and Enbridge’s proposed Northern Gateway pipeline.

I have previously written about Taseko’s New Prosperity project here and here. Briefly, the second federal panel that reviewed Taseko’s revised project concluded – like the first one – that the project is likely to result in significant adverse environmental effects. In the first of my posts, I suggested that this result was at least partially its own undoing, and its refusal to provide sufficient information to the panel in particular. Like Ontario Power Generation, Taseko was of the view that such “details” could be dealt with at the regulatory phase (see e.g. its final written submissions to the panel at p 8 – 11), an approach that the New Prosperity panel ultimately rejected (see New Prosperity Report at p 22). In its December 2013 application for judicial review, Taseko argues, inter alia, that the panel erred in law when it did so. Greenpeace suggests that this aspect of Taseko’s challenge is unlikely to succeed.

Greenpeace also lends support to the recent letter to the Prime Minister, signed by 300 scientists, which urges him to reject the Northern Gateway Joint Review Panel report. Amongst five major flaws, the signatories to the letter allege inappropriate reliance on yet-to-be-developed mitigation measures:

…Northern Gateway omitted specified mitigation plans for numerous environmental damages or accidents. This omission produced fundamental uncertainties about the environmental impacts of Northern Gateway’s proposal (associated with the behaviour of bitumen in saltwater, adequate dispersion modeling, etc…). The panel recognized these fundamental uncertainties, but sought to remedy them by demanding the future submission of plans… Since these uncertainties are primarily a product of omitted mitigation plans, such plans should have been required and evaluated before the [panel] report was issued.

Whether or not the foregoing is an accurate characterization of the JRP’s conclusions and recommendations (a quick glance of the National Energy Board’s 209 conditions does suggest that these scientists are likely onto something), the letter’s characterization of the environmental assessment process as one intended to offer “guidance, both to concerned Canadians in forming their opinions on the project and to the federal government in its official decision” (at page 3) could have been written by Justice Russell himself.

What is Separate?

A related aspect of Greenpeace worth discussing is the Court’s approach to the management of spent nuclear fuel. As noted above, Justice Russell concluded that this was not a separate issue, and that the “creation of nuclear waste” was “an aspect of the Project that should be placed before [Cabinet]” (at para 297).

Such dicta could prove useful to those, such as the City of Vancouver in the context of the National Energy Board’s Trans Mountain pipeline application, arguing that the environmental assessments for major pipelines (including Northern Gateway) should assess the climate change implications of the increased oil production enabled by the construction of such pipelines (in its application, Trans Mountain states that the pipeline is in response to requests for increased capacity “in support of growing oil production”). Although the matter is not free from doubt, the statutory language on this front certainly is broad (see CEAA, 2012 para 5(1)(a): “…a change that may be caused…”). It also seems plain that panels cannot arbitrarily decide to exclude certain environmental effects, nor is deference to government policy or other initiatives appropriate (e.g. the NWMO in Greenpeace, or the Province of Alberta’s intensity-based regulatory approach to greenhouse gas emissions in Pembina Institute).

Assessing the climate change effects of increased oil production would not amount to “a trial of modern society’s reliance on hydrocarbons,” as the National Energy Board’s outgoing chief recently stated in an interview with the Financial Post, and which he described as a policy question belonging “to the world of policy-making and politics, in which we are not involved at all.” With respect to its obligations under CEAA, 2012 at least (recognizing that the Board is dealing with a dual mandate here, the other coming from s 52 of the National Energy Board Act RSC 1985 c N-7 and which does actually require it to reach a conclusion with respect to the public interest), it would be the exact opposite. Although complex, it would entail an evidence-based analysis of whether Trans Mountain or Northern Gateway may contribute to an increase in oil production and, if so, the greenhouse gas emissions associated with that. Importantly, the final Environmental Impact Statement for Keystone XL determined that this was not likely to be the case for that particular pipeline.

A Green Shade of Reasonableness Review?

In the final part of this post, I want to briefly discuss Justice Russell’s approach to reasonableness review. For convenience, the relevant passage is as follows:

[272] To repeat what is stated above, because of its unique role in the statutory scheme, a review panel is required to do more than consider the evidence and reach a reasonable conclusion. It must provide sufficient analysis and justification to allow the s. 37 decision-makers to do the same, based on a broader range of scientific and public policy considerations. One could say that the element of “justification, transparency and intelligibility within the decision-making process” (Dunsmuir, above, at para 47 [this case sets out a doctrine of deference to administrative agencies somewhat similar to Chevron]; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 (CanLII) at para 59) takes on a heightened importance in this context. (emphasis added)

In my view, this is precisely the kind of analysis that Justice Binnie had in mind when he stated, at para. 59 of Kosa, that “[r]easonableness is a single standard that takes its colour from the context.” In the environmental assessment context, judicial review is not available on the merits of government-decision making – as Justice Russell observed that is a matter of democratic accountability. In this context, judicial review should function in the service of democratic accountability by ensuring the integrity of the decision-making process, a process that government predictably and – where it has been adequate – justifiably relies on to gain support for its political decisions. In the context of Northern Gateway, for example, the Prime Minister and then Minister of Natural Resources Joe Oliver were reported as saying that they will “make a decision only after considering the recommendations of the ‘fact-based’ and ‘scientific’ review panel.” Mr. Oliver also released a statement where he described the panel report as “a rigorous, open and comprehensive science-based assessment.” In this context, the role of a reviewing court should be to ensure that the environmental assessments do in fact meet these standards, failing which there can be no democratic accountability.

An earlier version of this post appeared at ABlawg, the University of Calgary Faculty of Law blog.

FERC’s Demand Response Strategy Hits a Snag: D.C. Circuit Vacates Order 745 in Electric Power Supply Association v. FERC

June 9, 2014 energylawprof One comment

I am delighted to welcome guest blogger Sharon Jacobs. Sharon was my colleague at Harvard Law School and will be an Associate Professor at Colorado Law beginning this summer. Sharon’s scholarship focuses on administrative, energy and environmental law and she has a forthcoming article on federalism and demand response programs, so she is the perfect person to discuss the D.C. Circuit’s recent decision in Electric Power Supply Association v. FERC, which invalidated a federal order designed to encourage demand response. -James Coleman

By Sharon B. Jacobs

It is a poorly kept secret that D.C. Circuit judges do not exactly clamor to be assigned Federal Energy Regulatory Commission (FERC) cases. The notable exception is now-Senior Judge Stephen Williams, who loves them. His grasp of the intricacies of energy regulation is unparalleled on any court in the country. It is unfortunate, therefore, that Judge Williams was not assigned to the D.C. Circuit panel that recently handed down Electric Power Supply Association v. FERC. In a 2-1 opinion authored by Judge Janice Rogers Brown and joined by Judge Laurence Silberman, the panel vacated FERC’s final rule on compensation for demand response resources in wholesale energy markets. Judge Harry Edwards offered a well-reasoned and ultimately more persuasive dissent.

Demand response is the reduction of electricity use in response to a price signal. In other words, customers are paid not to consume energy. Demand response has been called the sale of “negawatts,” although the phrase is an imperfect description of the actual transaction. Where demand response bids are accepted, market administrators need not purchase as much generation (supply) to meet aggregate demand. Because the cost of electricity goes up as demand increases, especially at times of peak consumption, demand response can lead to significant savings.

Electricity markets are divided into two spheres: retail (sales to end-use customers) and wholesale (sales for resale). For the most part, states regulate the former, while FERC controls the latter. FERC’s demand response strategy affects both markets. In an earlier order, FERC allowed aggregating companies to bid retail customers’ demand response commitments directly into wholesale markets. In the rule challenged in this case, Order 745, FERC sought to further eliminate barriers to demand response participation in wholesale markets by requiring market administrators to pay demand resources the “locational marginal price” or “LMP” for each megawatt not consumed. The locational marginal price is the same price that generators receive when they bid their megawatts of power into wholesale markets. It reflects the value of energy at a specific location at the time of delivery. PJM, the market administrator for the mid-Atlantic region, explains that the LMP fluctuates like taxi fares—lighter electricity traffic yields a lower, steadier fare, whereas congestion on the wires causes the fare to rise. FERC included a caveat in its rule: demand response resources would only receive the LMP when their participation in wholesale markets would be cost effective, as determined by a specified “net benefits” test.

The bulk of the opinion concerned a threshold question: whether FERC acted within the scope of its jurisdiction under the Federal Power Act when it established compensation and other rules for retail demand response resources participating in wholesale markets. Under the Act, FERC has clear jurisdiction over rates for wholesale sales of electric energy in interstate commerce as well as rules, regulations and practices affecting those rates. FERC argued that it could set wholesale rates and other rules for demand response in wholesale markets because they were practices “directly affecting” wholesale sales. The panel majority disagreed, instead characterizing what FERC did as indirect regulation of the retail market for electricity.

There were three major problems with the opinion. First, the majority found the Federal Power Act’s jurisdictional provisions much clearer than they are in fact. It applied the normally deferential Chevron test, under which the court will defer to the agency’s reasonable interpretation of an ambiguous statutory provision it is authorized to administer, to FERC’s jurisdictional claims. Though some have argued that allowing the agency to determine the scope of its own jurisdiction when statutory language is ambiguous is analogous to permitting the fox to guard the henhouse, the Supreme Court recently affirmed the propriety of this practice in City of Arlington v. FCC. The Federal Power Act’s grants of jurisdiction did not anticipate demand response and the statute’s application to the phenomenon, as the dissent recognized, is unclear. In other words, the statutory provisions at issue, as applied to demand response, are ambiguous. Thus, the court should have deferred to FERC’s reasonable interpretation of those provisions at Chevron step two.

Second, Judge Brown found that the Federal Power Act foreclosed FERC’s reading because the Commission’s interpretation “has no limiting principle.” In an argument reminiscent of Justice Scalia’s warning in his Massachusetts v. EPA dissent that Frisbees and flatulence could be regulated under EPA’s capacious definition of “air pollutant,” Judge Brown warned that FERC’s interpretation of its “affecting” jurisdiction would authorize it to regulate “steel, fuel, and labor markets.” As the dissent pointed out, however, the limiting principle could not be clearer. Under the D.C. Circuit’s own holding in CAISO v. FERC, FERC may only regulate practices that “directly affect” wholesale rates or are “closely related” to those rates, “not all those remote things beyond the rate structure that might in some sense indirectly or ultimately do so.” As Judge Edwards pointed out in his dissent, this language clearly precludes regulation of “steel, fuel, and labor markets.”

Third, to the extent that the true motivation for the decision was general unease about federal encroachment on traditional areas of state regulatory power, the decision overlooked a key aspect of FERC’s demand response rules that mitigate any unwanted impact on state authority. An earlier FERC order, Order 719, offered state and local regulatory authorities an “opt-out”: those who did not want their retail customers participating in wholesale markets for demand response could prohibit them from doing so via legislation or regulation. Order 745’s pricing scheme was layered on top of this jurisdictional compromise. In Judge Edwards’s words, “[t]his is hardly the stuff of grand agency overreach.”

The most controversial part of Order 745, and the real reason the rule was the subject of such concerted opposition, got the least airtime in the opinion. In what was billed as an alternate holding in Part IV (but felt more like dicta), the panel found that Order 745’s locational marginal pricing scheme was arbitrary and capricious. In under two pages of text, the opinion declined to “delve now into the dispute among experts” yet asserted that the Commission had not “adequately explained how their system results in just compensation.” “If FERC thinks its jurisdictional struggles are its only concern with Order 745,” the opinion cautioned, “it is mistaken.” In a much more nuanced discussion of the Commission’s choice and the deference due to FERC “in light of the highly technical regulatory landscape that is its purview,” Judge Edwards concluded that the Commission provided a “thorough explanation” for selecting the locational marginal price as the appropriate level of compensation. In a nutshell, FERC’s argument was that the compensation level was necessary to overcome barriers to participation by demand response resources in wholesale markets and that it accurately reflected the value demand response provided to those markets.

Prior to this ruling, FERC had been successfully pursuing a policy of what I call, in a forthcoming article, “bypassing federalism”: working a de facto rather than a de jure reallocation of regulatory power by extending its influence through the expansion of wholesale markets. In the context of demand response, that strategy was undermined by the Commission’s aggressive posture on pricing in Order 745. It was the idea that demand response resources would be paid the LMP for their “negawatts,” thereby competing directly with generation in wholesale markets, that triggered the groundswell of opposition from generation resources. The decision will not go into effect until seven days after the disposition of any motion for rehearing, and FERC is still considering its options as well as the decision’s impact on its rules and related programs. The panel’s decision may yet be reversed by the D.C. Circuit en banc or by the Supreme Court. But, as a policy matter, the Commission might have avoided a direct confrontation over its demand response rules by moving more deliberately on the pricing question. As I have written elsewhere, for agencies whose regulatory schemes face concerted opposition, discretion is sometimes the better part of valor.

EPA’s New Power Sector Climate Rules: A Brewing Political and Legal Storm

June 3, 2014 energylawprof 2 comments

Today, the United States Environmental Protection Agency (EPA) proposed requiring all fifty states to adopt greenhouse gas controls for their existing power plants. And EPA went further, proposing that, together, states would have to cut U.S. power sector emissions to 30% of 2005 levels by 2030. (You can see a chart of how much each state would have to cut here.)

These rules face strong political and legal opposition and will not go into action until 2020 at earliest. Their ultimate fate will depend on whether President Obama’s administration stands behind them, whether the public elects a new President that supports them, and whether the courts agree that EPA has authority to cap state greenhouse gas emissions. Their immediate impact is twofold: 1) it tells other countries that there’s a chance the U.S. could commit to strong greenhouse gas rules at 2015 negotiations in Paris; and 2) it sets the stage for an epic political and legal struggle over energy policy in the United States.

What happened?

EPA acted under Clean Air Act § 111(d). (The text of § 111(d) is at the bottom of this post.) This provision allows EPA to “establish a procedure” for each state to adopt “standards of performance” for existing sources of air pollutants that would have otherwise slipped through the cracks of the Clean Air Act because they 1) are not new sources, subject to new source performance standards, and 2) are not regulated under other existing source regulations in the Clean Air Act.

This section of the Clean Air Act has rarely been used: it’s designed for sources that somehow escaped the Act’s relatively comprehensive coverage. So there are few precedents for EPA to follow, and the courts that review EPA’s rule will not have past cases to go by. There are several ongoing legal disputes about the extent of EPA’s authority to adopt greenhouse gas rules under § 111(d), summarized below, and EPA is pushing for maximum authority to reduce greenhouse gas emissions across the power sector.

Can EPA Issue Greenhouse Gas Rules for Power Plants?

Some question if the Clean Air Act requires greenhouse gas controls at all for existing power plants. The published U.S. Code says § 111(d) doesn’t apply to sources that EPA already regulates under the “hazardous air pollutants” section of the Clean Air Act, § 112. And EPA already regulates power plants under § 112. So how can EPA regulate power plants under § 111(d)?

Bizarrely, the U.S. Code does not reflect the actual text of the law signed by President George H.W. Bush in 1990, and the signed law, not the Code, controls. The signed law actually included two different § 111(d) that were passed by the U.S. House and Senate, respectively, and never reconciled. (#bicameralism) The House text made it into the U.S. Code, but the Senate version is different: it only says that § 111(d) doesn’t apply to pollutants that are regulated under § 112. Although power plants are regulated under § 112, greenhouse gases aren’t, so this version would allow EPA’s greenhouse gas rules.

In 2013, William Haun, writing for the Federalist Society, suggested that the Senate and House versions should be reconciled by applying the plain text of both exclusions, which would negate EPA’s standards. Kate Konschnik, Policy Director of the Harvard Environmental Law Program, has countered with several reasons to think that Congress intended to adopt the narrower Senate exclusion, and arguing that, at a minimum, EPA should be given deference on which text to apply. EPA issued a legal memorandum with its proposed power rule, echoing Konschnik’s arguments, and noting that a 2011 Supreme Court decision also suggested that EPA can regulate greenhouse gases under § 111(d). (See memo at pp. 20-27).

Can EPA Cap State Power Emissions?

The biggest battle over EPA’s power sector rule will be over its scope.

Remember: section 111(d) lets EPA set a “procedure” for states to set “standards of performance for any existing source” that would be subject to standards of performance for new sources. So EPA is proposing § 111(d) standards to accompany the new source performance standards it has proposed for new coal and natural gas plants.

But EPA isn’t suggesting source-by-source standards of performance for existing coal and natural gas plants. Instead it’s proposing to cap all greenhouse gas emissions from each state’s power sector. How can the agency propose this?

Under previous EPA regulations, § 111(d) standards must mandate the “best system of emission reduction” for each source. You might think that meant making each coal plant cleaner, but EPA says it also means taking steps to replace coal with other power sources: 1) using natural gas plants instead, 2) using low carbon sources like hydro, nuclear, wind, and solar, and 3) lowering electricity demand through energy efficiency. In other words, the best system of emission reduction for a coal plant is simple: don’t turn it on.

EPA recognizes that state-by-state caps are a departure from its usual approach, but it offers several reasons that they might make sense here. First, it notes that a state cap “achieves greater emission reductions at a lower cost”—if EPA limited itself to the coal plants themselves it could only get small greenhouse gas reductions (4-6%) unless it was willing to demand prohibitively expensive carbon capture. Second, a state cap “takes better advantage of the wide range of measures that states, cities, towns and utilities are already using to” cut greenhouse gas emissions, such as renewable power standards and cap-and-trade systems. Third, EPA says statewide caps “reflect the integrated nature of the electricity system and the diversity of electricity generation technology.”

There’s a lot of political rhetoric right now about “power grabs” but over the next months you will see others develop careful arguments that EPA has overstepped its authority by transforming a “procedure” for state “source” standards into state greenhouse gas caps. Even before the rule came out, Nathan Richardson, at Resources for the Future, suggested that it might be illegal to apply a single cap to separate coal & gas source categories—much less use one cap for the entire electric sector. On the other hand, Kate Konschnik and Ari Peskoe of Harvard’s Environmental Law Program have defended the broader approach taken by EPA. If EPA’s rules ever go into effect, those arguments will have to be resolved in court.

Is EPA’s Proposed 30% Cut Reasonable?

EPA also says it decided to include all power sector emissions because states, industry, and interest groups all asked for compliance flexibility. And a state cap is flexible because it allows states to choose any low-carbon path that they like: natural gas or energy efficiency, nuclear or wind.

But calling EPA’s statewide caps “compliance flexibility” takes enough chutzpah to make you smile when you’re reading a 645-page proposed rule. Some states are, of course, delighted by EPA’s caps, which validate their pre-existing attempts to lower their greenhouse gas emissions. But the point of EPA’s state-wide caps is to force more greenhouse gas emissions: if EPA limited itself to coal plants, it could only cut emissions by 4-6% without shutting them all down. Many states requesting “compliance flexibility” were hoping to use alternate methods to make that 4-6% cut. Instead, EPA is requiring a 30% cut on average.

It’s as though you asked for an extension on a ten-page paper and your teacher said, “Sure—and since you have more time, make it twenty pages.” So EPA will have to convince the courts not only that it can sweep all power sector emissions into one rule, but also that it can use that wider scope to justify more dramatic reductions.

Will this Administration and Future Administrations Stand Behind This Rule?

This rule will not require states to cut greenhouse gas emissions until 2020, long after President Obama leaves office in 2016. And the proposed rules would run through 2030, by which time there may have been four more presidencies. So the future of EPA’s proposal will not turn on any particular politician; it will depend on the political and legal sustainability of the rules.

And EPA’s existing carbon rules have long been subject to political winds. In 2010, EPA promised to issue today’s proposal by July 2011, and finalize it by May 2012. Then, in the run-up to the 2012 election, it delayed these rules indefinitely. Now the rules are on again, and EPA says it will finalize this rule in June 2015, and will expect state implementing plans from 2016 to 2018, after President Obama has left office. Whether that schedule will stick remains to be seen.

(d) Standards of performance for existing sources; remaining useful life of source

(1) The Administrator shall prescribe regulations which shall establish a procedure similar to that provided by section 7410 of this title under which each State shall submit to the Administrator a plan which

(A) establishes standards of performance for any existing source for any air pollutant

(i) for which air quality criteria have not been issued or which is not included on a list published under section 7408 (a) of this title or emitted from a source category which is regulated under section 7412 of this title but

(ii) to which a standard of performance under this section would apply if such existing source were a new source, and

(B) provides for the implementation and enforcement of such standards of performance. Regulations of the Administrator under this paragraph shall permit the State in applying a standard of performance to any particular source under a plan submitted under this paragraph to take into consideration, among other factors, the remaining useful life of the existing source to which such standard applies.

(2) The Administrator shall have the same authority—

(A) to prescribe a plan for a State in cases where the State fails to submit a satisfactory plan as he would have under section 7410 (c) of this title in the case of failure to submit an implementation plan, and

(B) to enforce the provisions of such plan in cases where the State fails to enforce them as he would have under sections 7413 and 7414 of this title with respect to an implementation plan.

In promulgating a standard of performance under a plan prescribed under this paragraph, the Administrator shall take into consideration, among other factors, remaining useful lives of the sources in the category of sources to which such standard applies.

State Energy Policy and the Commerce Clause: Spotlight on Colorado and Minnesota

May 21, 2014 energylawprof Leave a comment

By Alexandra B. Klass
University of Minnesota Law School
aklass@umn.edu

Within the past month, two federal district courts—one in Colorado and one in Minnesota—have issued important decisions on the constitutionality of state clean energy policies. Both cases raised the same legal issue, namely, whether the state laws in question regulate extraterritorially in violation of the dormant Commerce Clause of the U.S. Constitution. But the courts reached different results in each case and, more importantly, the Minnesota and Colorado policies reviewed by each court were quite different from each other even though both involved efforts to promote clean energy within the state. Some of the recent commentary on the two cases has downplayed the significant differences between the two state policies in question, leading to confusion about the implications of the courts’ rulings.

First, a bit about the dormant Commerce Clause. The Commerce Clause of the U.S. Constitution grants Congress the authority to regulate interstate commerce. But the Supreme Court has also interpreted that provision to contains a “dormant” aspect that limits states from interfering with the free flow of commerce among the several states. A law can violate the dormant Commerce Clause if: (1) it facially discriminates, has a discriminatory purpose, or is discriminatory in effect; (2) the law is facially neutral and there is no evidence of discriminatory intent or effect but the burdens of the law on interstate commerce outweigh the in-state benefits; or (3) the law attempts to control conduct completely outside its borders and thus regulates “extraterritorially.” The dormant Commerce Clause has been applied to state laws for over 100 years, including laws banning or limiting out-of-state imports of goods or services, out-of-state exports of goods or services, minimum pricing laws tied to prices in other states, laws attempting to regulate trucks and trains in interstate transportation, and a variety of other state laws intended to promote in-state businesses as well as environmental, health and safety interests over similar out-of-state interests.

Now, onto the recent state energy policy cases. Both cases involve efforts by states to encourage the use of renewable electricity resources in the state and limit the generation of electricity that emits significant amounts of CO₂ in an effort to address climate change. But the two state policies under constitutional challenge involve very different ways of reaching that goal. The Colorado lawsuit involves a challenge to a state renewable energy mandate. Such laws, known as renewable portfolio standards, renewable energy standards, clean energy mandates, or renewable energy mandates, have been adopted in over half the states. Such laws require utilities and other electricity providers in the state to generate or purchase a certain percentage of their electricity for retail sale from renewable energy sources by a particular date, often 15%, 20%, or 30% by 2020 or 2025, with lower amounts mandated between now and the targeted date. Such laws encourage the use of wind, solar, geothermal, or hydropower energy with significant variation among the states with regard to what resources “count” and the percentages required.

By contrast, the Minnesota lawsuit does not involve a challenge to the state’s renewable energy mandate, even though Minnesota has one of the most aggressive renewable energy mandates in the nation. Instead, the lawsuit involves a challenge to another Minnesota energy policy that limits the construction, use, or import of new coal-fired power in the state by prohibiting the construction of facilities that emit a certain amount of CO₂ each year or imports from such facilities. Only a few states (New York, Oregon, California) in addition to Minnesota have such limits on coal-fired power. All of those states impose those limits on coal-fired electricity in addition to imposing a renewable energy mandate on electricity providers in the state.

The Colorado case

In Energy and Environmental Legal Institute v. Epel, __ F. Supp. 2d __, 2014 WL 1874977 (D. Colo., May 9, 2014), a non-profit organization representing and promoting coal energy interests along with one of its members challenged the state’s renewable energy standard, which requires Colorado electric utilities and other retail electricity providers in the state to provide up to 30% of their retail electricity sales from renewable energy sources by a certain date. Electricity providers can meet their renewable energy mandate by either generating or buying renewable power directly or by purchasing renewable energy credits. The plaintiffs argued on summary judgment that the renewables mandate places a restriction on how out-of-state goods are manufactured, and requires out-of-state electricity to be generated according to Colorado’s terms. Thus, according to the plaintiffs, by projecting Colorado’s policy decisions onto other states, the law regulates extraterritorially in violation of the dormant Commerce Clause.

The court rejected this argument and held that the law did not impact wholly out-of-state transactions. If a Wyoming coal company generates electricity and sells it to a South Dakota business, the Colorado law does not apply. Instead, the court found that the law applies only to energy generators that choose to do business with a Colorado utility and, even then, the law only applies in determining whether the energy the Colorado utility purchases counts towards its renewables mandate. The court agreed that the Colorado law would influence the profits of out-of-state companies whose electricity could not be used to fulfill the mandate, but held that the dormant Commerce Clause “neither protects the profits of any particular business, nor the right to do business in any particular manner.” The court also found that the law did not discriminate against interstate commerce or unduly burden interstate commerce.

The Minnesota case

In North Dakota v. Heydinger, __ F. Supp. 2d __, 2014 WL 1612331 (D. Minn., Apr. 18, 2014), the State of North Dakota, North Dakota lignite coal interests, and multi-state electric cooperatives in the upper Midwest sued the State of Minnesota over limits on coal-fired power in its Next Generation Energy Act. The provisions of the law at issue state that after a certain date, no person shall, without CO₂offsets: (1) construct a new “large energy facility” (defined to encompass coal-fired power plants but not most natural gas-fired plants) in the state; (2) import power from a new large energy facility from outside the state; or (3) enter into a long-term power purchase agreement that would contribute to statewide power sector CO₂ emissions. The plaintiffs argued on summary judgment that the limits on imports of coal-fired power from outside the state regulated extraterritorially in violation of the dormant Commerce Clause and discriminated against interstate commerce. Notably, even though Minnesota has a renewable energy mandate that is also part of the state’s Next Generation Energy Act, the plaintiffs in the Minnesota case did not challenge Minnesota’s renewable energy mandate at all. As a result, the state energy policy at issue in the Minnesota case is quite different from the state energy policy at issue in the Colorado case, even though both state policies are intended address climate change by imposing requirements on state electricity providers.

In an April 2014 decision, the U.S. District Court for the District of Minnesota agreed with the plaintiffs that the limits on coal-fired electricity imports regulated extraterritorially. Because the court struck down the import limits on those grounds, it did not reach the claims that the law also discriminated against interstate commerce. In reaching its decision, the court adopted an extremely broad interpretation of the law, finding that it applied to any electric power provider selling electricity on the multi-state, regional electric grid (encompassing more than 10 states), rather than applying only to persons located in or operating in Minnesota. The court pointed to statements made by the Minnesota Department of Commerce in earlier regulatory proceedings that indicated the agency might apply the law to multi-state electric cooperatives based outside the state but with members in Minnesota if the cooperative generated coal-fired power outside the state and sold it into the multi-state grid. Because electrons cannot be tracked once they have entered the electric grid, the court found such a transaction could apply where the buyers and seller were all outside of Minnesota because some of the electricity might enter the state of Minnesota. Because such an application of the law would apply even when no party to the transaction was based in Minnesota, the court found that the law regulated extraterritorially in violation of the dormant Commerce Clause. The court rejected the argument that it should not interpret the law so broadly to encompass all sales of electricity into the multi-state grid even though the state had never actually applied the law to these types of out-of-state transactions that did not directly involve a Minnesota-based actor intending to import coal-fired power to the state.

Conclusions

So what should we take away from these two decisions? First, it is important to keep in mind what was not at issue in either case. For some time now, there has been concern among policymakers and scholars regarding state renewable energy mandates that preference in-state renewable resources over out-of-state renewable resources through multipliers and other provisions that encourage the use of in-state wind, solar, or hydropower. Many state laws contain such a preference for in-state renewable resources because such preferences allowed legislators to argue that a renewable energy mandate would not only promote the use of clean energy but would also help promote new, in-state industries. While this is certainly good politics and may be good policy, such preferences raise dormant Commerce Clause concerns because they expressly benefit in-state industries over identical out-of-state industries. But the Colorado renewable energy mandate at issue does not contain such preferences and thus treats in-state and out-of-state renewable and non-renewable electricity resources alike. Likewise, even though the Minnesota renewable energy mandate was not even at issue in the Minnesota litigation, it is important to point out that Minnesota, like Colorado, does not preference in-state renewable resources over out-of-state renewable resources.

Second, states attempt to meet clean energy and climate change goals through a variety of policies. States have significant authority to regulate electricity sales, transportation, and industrial facilities and in recent years have used that authority to enact renewable energy mandates, place bans on coal-fired power, and impose other regulatory requirements on industrial facilities, fuel providers, electricity providers, and other businesses that contribute to CO₂ emissions. Each type of policy has a different impact on in-state businesses and out-of-state parties that do business in the state. As a result, each type of policy raises different legal issues. Thus, the fact that the courts in the Colorado and Minnesota cases reached different results is significant, but it is also important not to lose sight of the fact that each court reviewed state energy policies that have similar goals, but were designed in completely different ways and have very different impacts on in-state and out-of-state actors.

Last, each court’s decision relied in large part on how broadly it found the state law to apply. In the Colorado case, the court stated that the law applied only to Colorado electricity providers and thus did not impact electricity generators in other states except when they chose to do business with electricity providers in Colorado. By contrast, in the Minnesota case the court interpreted the law limiting the use of new-coal fired power to apply to any party selling electricity into the multi-state electricity grid if there was some chance that those electrons could flow into Minnesota. Whether the language of the statute supports such a broad interpretation of the law remains to be seen and will likely be an issue on appeal. The fact remains, however, that how broadly courts interpret the reach of state energy policies will impact significantly whether those laws can withstand dormant Commerce Clause scrutiny.

For more information on the dormant Commerce Clause, its potential application to state energy policy, and recent litigation, see Alexandra B. Klass & Elizabeth Henley, Energy Policy, Extraterritoriality, and the Dormant Commerce Clause, San. Diego J. of Climate & Energy L. (forthcoming 2014), at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2376411.

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