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David M. Driesen, Capping Carbon, 40 Environmental Law Review 1 (2010)

This Article discusses cap setting for a cap-and-trade program, a key problem in pending legislation addressing global climate disruption. While the literature often suggests that trading automatically solves the problems associated with Best Available Technology (BAT) regulation, regulators often use a BAT approach to setting caps for trading programs. This paper examines neglected normative and practical choices between BAT, cost-benefit, and effects-based cap setting in the trading context. It also shows that cap setting exercises can get bogged down in the same sort of lengthy administrative and judicial processes that delayed and weakened BAT regulation, and discusses ways of avoiding these problems in climate legislation.

(abstract from Environmental Law Review)

The latest issue of Lewis & Clark Law School’s Environmental Law Review is now out.

Here are the articles published in Volume 39, Issue 4 of Environmental Law Review, complete with links to the abstracts and full-text articles:

Articles

• “Steel in the Ground”: Greening the Grid With the iUtility by Joseph P. Tomain
• Restructuring a Green Grid: Legal Challenges to Accommodate New Renewable Energy Infrastructure by Steven Ferrey
• The Trojan Horse of Electric Power Transmission Line Siting Authority by Jim Rossi
• Streamlining NEPA to Combat Global Climate Change: Heresy or Necessity? by Irma S. Russell
• Rough Seas Ahead: Confronting Challenges to Jump-Start Wave Energy by Rachael E. Salcido
• The Rising Tide of Climate Change: What America’s Flood Cities Can Teach Us About Energy Policy and Why We Should Be Worried by Joshua P. Fershee
• Greening the Grid and Climate Justice by Alice Kaswan

Comment

• Wave New World: Promoting Ocean Wave Energy Development Through Federal-State Coordination and Streamlined Licensing by Mark Sherman

Book Review

• In the Public Interest – A Review by Robert H. Klonoff

New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.

Joseph P. Tomain, “Steel in the Ground”: Greening the Grid With the iUtility, 39 Environmental Law Review 931 (2009)

While the electricity industry is significantly challenged by climate change, climate change also presents a significant opportunity for the industry to restructure itself. Central to a successful restructuring is the construction of a smart grid, which promises greater energy and economic efficiency, increased use of renewable resources, adn a reduction of carbon emissions. This Article argues that the technology exists for the construction of a successful smart grid, and now federal and state regulators must support those efforts through a renegotiated regulatory compact.

(abstract from Environmental Law Review)

Steven Ferrey, Restructuring a Green Grid: Legal Challenges to Accommodate New Renewable Energy Infrastructure, 39 Environmental Law Review 977 (2009)

Traveling across the legal, regulatory, and physical frontiers of the new “smarter” grid, this Article fathoms the complexities of the new legal architecture of the American “smarter” grid. There is much more to the transmission grid than just poles and wires: Modern society depends on speed-of-light movement of electrons over thousands of miles in a system that is the last of the regulated industries in America. As we move toward using more wind and solar power, there are concerns that these technologies are intermittent resources, which on an hourly basis ebb and flow in only partly predictable manners. In this Article, the heretofore largely hidden issue of whether the grid has the backup, quick-start power resources to deal with this intermittency is examined-it doesn’t. This has profound social and financial consequences on the power future. The author analyzes the move to renewable power, the implications for the “smarter” grid, and the resultant legal and regulatory issues confronting the system.

(abstract from Environmental Law Review)

Jim Rossi, The Trojan Horse of Electric Power Transmission Line Siting Authority, 39 Environmental Law Review 1015 (2009)

This Article highlights legal barriers to the development of renewable energy projects but takes a skeptical approach to Congress’ expansion of federal siting jurisdiction as a solution to the problem. Over-attention to transmission line siting authority is a Trojan horse in the climate change debate – masking fundamental issues that could harm the climate and keeping reformers from focusing on the more serious barriers faced by the large-scale development of renewable resources. Reforms must also focus on how the costs and benefits of transmission projects are assessed by regulators and how transmission will be priced in wholesale power markets.

(abstract from Environmental Law Review)

Irma S. Russell, Streamlining NEPA to Combat Global Climate Change: Heresy or Necessity?, 39 Environmental Law Review 1049 (2009)

This Article discusses the impact of the National Environmental Policy Act (NEPA) on the development of non-carbon energy sources. Preparing an EIS results in delays to energy projects, whether they are traditional or innovative green energy projects. Currently some fossil fuel energy sources receive a streamlined NEPA process, as a result of either legislation or regulations. While streamlining NEPA might serve to advance clean energy resources, this avenue for green energy has not developed. Debate on the issue could promote the public good.

(abstract from Environmental Law Review)

Rachael E. Salcido, Rough Seas Ahead: Confronting Challenges to Jump-Start Wave Energy, 39 Environmental Law Review 1073 (2009)

This Article examines various challenges to the goal of accelerating wave energy development within the sustainable development framework. Three recommendations for paving the road ahead are to 1) establish the role of ocean renewables within the larger energy policy, 2) prioritize research that will prove the “green credentials” of wave energy, and 3) move forward with ecosystem-based zoning to facilitate restoration and sustainable, long-term management of our oceans.

(abstract from Environmental Law Review)

Joshua P. Fershee , The Rising Tide of Climate Change: What America’s Flood Cities Can Teach Us About Energy Policy and Why We Should Be Worried, 39 Environmental Law Review 1109 (2009)

To provide a model for assessing the current and likely responses to climate change risks, this Article considers two of the worst flood disasters in American history and applies the same rationale for addressing those disasters to critical climate change issues facing the nation today. This Article discusses the exorbitant potential costs of climate change and argues that policies to address such issues are needed because of the potential gains in terms of national security and job creation.

(abstract from Environmental Law Review)

Alice Kaswan, Greening the Grid and Climate Justice, 39 Environmental Law Review 1143 (2009)

Professor Kaswan argues that environmental and economic justice considerations are central to debates about whether, and how, to green the grid. She surveys the collateral environmental and economic benefits and risks presented by a transition to renewable energy, and argues that integrating such concerns into climate policy would further, rather than hinder, the political prospects for greening the grid.

(abstract from Environmental Law Review)

Mark Sherman, Wave New World: Promoting Ocean Wave Energy Development Through Federal-State Coordination and Streamlined Licensing, 39 Environmental Law Review 1161 (2009)

If the United States truly wishes to free itself from dependence on foreign oil, new technologies like ocean wave energy conversion deserve a chance to succeed. This Comment examines the multi-year regulatory squabble between the Federal Energy Regulatory Commission (FERC) and the Department of the Interior’s Minerals Management Service (MMS) over which agency has jurisdiction to license wave energy projects on the outer continental shelf (OCS)-a dispute that seriously impeded the nascent industry’s development. The Comment concludes that, despite the recent FERC-MMS solution to the jurisdictional division over wave energy projects, federal ocean wave energy conversion legislation is still needed to create a regulatory framework with clear standards and procedures.

(abstract from Environmental Law Review)