Author: Brenden Cline

FERC v. EPSA Symposium

In Federal Energy Regulatory Commission v. Electric Power Supply Ass’n, the Supreme Court upheld FERC’s authority over “demand response”—bids of reductions in electricity consumption into wholesale markets—under the Federal Power Act, and held that FERC’s decision to compensate demand response providers at the same rate as electric power generators was neither arbitrary nor capricious. In this Symposium, eight authors explore the Court’s decision and consider its implications for state clean energy policies, grid-edge innovation, and agency deference. 

FERC v. EPSA and the Path to a Cleaner Electricity Sector: Introduction
Joel B. Eisen

The Essential Role of State Engagement in Demand Response
Anne Hoskins & Paul Roberti

FERC v. EPSA and Adjacent State Regulation of Customer Energy Resources
Jim Rossi & Jon Wellinghoff

Balancing on the Grid Edge: Regulating for Economic Efficiency in the Wake of FERC v. EPSA
Denise A. Grab

Fostering Competition in the 21st Century Electricity Industry
Michael Wara

Energy Deference
Sharon B. Jacobs

Preferred Citation: Cite FERC v. EPSA Symposium essays to 40 Harv. Envtl. L. Rev. F. __ (2016).

Note: For optimal printing, select “Scale: 100%” or “Layout: 2 Pages per Sheet” and “Scale to Fit: Fill Entire Paper.”

Environmental Law SSRN Reading List: March 2016

SSRN Top Papers

We’re back again with the Harvard Environmental Law Review‘s last monthly Environmental Law SSRN Reading List of the school year. Check out this month’s selections below:

  1. Cost-Benefit Analysis and Arbitrariness Review by Cass Sunstein (Harvard Environmental Law Review, Forthcoming) (arguing that whenever a statute authorizes an agency to consider costs and benefits, its failure to quantify them—and to weigh them against each other—requires a non-arbitrary justification, such as the technical difficulty of quantifying costs and benefits; the relevance of values such as equity, dignity, and fair distribution; or the existence of welfare effects that are not captured by monetized costs and benefits)
  2. The Supreme Court’s Clean-Power Power Grab by Lisa Heinzerling (Georgetown Environmental Law Review, Forthcoming) (detailing ten ways in which the Supreme Court’s unprecedented decision and process on the applications to stay the Clean Power Plan reflected bad choices)
  3. Unjust, Unreasonable, and Unduly Discriminatory: Utility Rates and the Campaign Against Rooftop Solar by Ari Peskoe (Texas Journal of Oil, Gas, and Energy Law, 2016, Forthcoming) (examining the history of electricity distribution regulation, and concluding that opening up the monopoly-controlled distribution system to new technologies and services provided by non-IOU entities is consistent with the history and purpose of state regulation)
  4. Two Wrongs? Correcting Professor Lazarus’s Misunderstanding of the Public Trust Doctrine by Michael C. Blumm (Environmental Law, Vol. 46, No. 3, 2016) (responding to Professor Richard Lazarus’s recent article Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can Two Wrongs Make It Right?, which questioned the efficacy of relying on atmospheric trust doctrine theories in litigation to address global climate change, by arguing that Professor Lazarus misunderstands the non-absolutist nature of the public trust doctrine and that the doctrine requires legislative and administrative decisionmakers to exercise their discretion in protecting trust resources from destruction or monopolization)
  5. The Failure to Understand Expertise in Administrative Law: The Problem and the Consequences by Sidney A. Shapiro (explaining how the limited understanding of expertise in administrative law has led to a “rational-instrumental” (RI) accountability paradigm, which distrusts agency expertise and seeks to narrow the policy space in which agency expertise can operate, when a more accurate and complete understanding of expertise supports “deliberative-constitutive” (DC) accountability, which has the potential to increase agency effectiveness and still reconcile the administrative state with our constitutional democracy)
  6. Strategic Rulemaking Disclosure by Jennifer Nou and Edward Stiglitz (finding that agencies substantially under-report their rulemaking activities and appear to disclose strategically to Congress, so the Unified Agenda is not a successful tool for Congress to monitor and influence regulatory development)
  7. The Originalist Myth of the Unitary Executive by Peter M. Shane (arguing that close study of the state constitutions written in the first decades after 1789 and state administrative practice under them belie any “unitary executive” reading of Article II that purports to be based on “original public meaning,” corroborating a common understanding that Article II’s vesting of executive power permitted substantial legislative control over the allocation of decisional authority within the executive branch)
  8. The Brave New Path of Energy Federalism by Jim Rossi (Texas Law Review, Forthcoming) (defending concurrent federal-state jurisdiction as consistent with the history, structure, and language of energy statutes, as well as their primary purposes of closing regulatory gaps, and calling on courts and regulators to be attentive to promoting democratically accountably agency preemption as they address the challenges of new forms of energy federalism)
  9. The Legal Character of the Paris Agreement by Daniel Bodansky (Review of European, Comparative, and International Environmental Law, Forthcoming) (finding that the Paris agreement is a treaty within the definition of the Vienna Convention on the Law of Treaties, but not every provision of the agreement creates a legal obligation)
  10. Oil & Gas Drilling in National Parks Elizabeth by Glass Geltman (arguing that the National Park Service’s “9B Regulations,” which provide a national regulatory framework governing the exercise of nonfederal oil and gas rights in national parks, should be revised)

Scalia’s Swan Song: The “Irreconcilability Canon” Resolves the Clean Air Act’s Section 111(d) Drafting Error and Encourages Good Lawmaking

By Brenden Cline, Editor-in-Chief, Harvard Environmental Law Review.

This post is part of the Environmental Law Review Syndicate. It is the original post, so please leave any comments or responses here!

[This] is a ‘rare case.’ It is and should be . . . . But every generation or so a case comes along when this Court needs to say enough is enough. — Chief Justice Roberts[1]

As my law school graduation nears, I’d like to advance a common-sense argument for the Clean Power Plan’s statutory authority that only a law student could make: the D.C. Circuit and Supreme Court should reject EPA’s and challengers’ strained readings of the duplicative amendments to Clean Air Act section 111(d) and instead follow the late Justice Scalia’s “irreconcilability canon” to give these amendments no effect. To date, just one brief filed in the torrent of Clean Power Plan litigation mentions the irreconcilability canon in passing.[2] I think this interpretive tool warrants more attention.

So quit the jiggery-pokery, put down the applesauce, and take your head out of a bag. Justice Scalia may no longer be with us, but his immortal words endure.

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Environmental Law SSRN Reading List: February 2016

SSRN Top Papers

The Harvard Environmental Law Review‘s monthly Environmental Law SSRN Reading List is back, just in time for the spring submissions cycle. (Did you know we’re accepting submissions for Volume 41?) Check out this month’s selections below:

  1. The Votes of Other Judges by Eric Posner and Adrian Vermeule (arguing that judges should take into account the votes of colleagues—e.g., in the Chevron context when different judges read a statute as being “unambiguous” in divergent ways, suggesting ambiguity—and proposing a two-stage voting procedure for doing so)
  2. The Origins of Legislation by Ganesh Sitaraman (Notre Dame Law Review) (providing a comprehensive typology of the origins of legislative drafts and outlining the many ways in which drafts emerge, then explaining why members of Congress pursue different drafting processes and exploring the consequences of variety in legislative drafting for theories of statutory interpretation, for identifying reliable sources of legislative history, and for arguments about congressional delegation and judicial deference to agencies)
  3. Shooting the Albatross: Why a State Takeover of Federal Public Lands Would Make Endangered Species Act Compliance More Expensive and Difficult by John Ruple, Mark K. Capone, Emanuel Vásquez & Alison Jones (Environs, Vol. 38, 2016) (arguing that the goals underpinning state efforts to seize control of federal lands—to reduce regulatory complexity and accelerate resource development—are at odds with changes in the Endangered Species Act compliance process that a public land transfer would bring about)
  4. The Unbearable Rightness of Auer by Cass Sunstein and Adrian Vermeule (arguing for Auer deference to agencies based on their specialized competence and greater accountability, and rebutting challenges to Auer as resting on an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives) [Eds.: see also our forthcoming case comment on Perez v. Mortgage Bankers!]
  5. Make My Day! Dirty Harry and Final Agency Action by William Funk (Environmental Law, Forthcoming) (arguing how and why the Supreme Court should affirm in Hawkes, the pending CWA “final agency action” case, and suggests that this case presents a perfect opportunity for the Court to clarify what is necessary to constitute final agency action subject to judicial review under the APA more generally)
  6. When Do State Transmission Siting Laws Violate the Constitution? by Alexandra B. Klass and Jim Rossi (Electricity Journal) (assessing the merits of potential Dormant Commerce Clause challenges to state transmission line siting regimes, which may require state regulators to consider benefits beyond their jurisdictional borders—particularly when developers propose infrastructure projects to create regional (as opposed to state-specific) benefits in energy markets or where out-of-state developers propose to build interstate lines)
  7. Consume or Invest: What Do/Should Agency Leaders Maximize? by William E. Kovacic and David A. Hyman (Washington Law Review, Forthcoming) (outlining the incentives for agencies to “consume” (launch high-profile cases and rulemakings) rather than “invest” (develop internal infrastructure for the future), and offering several proposals to help agency leaders strike a better balance between consumption and investment)
  8. 3D-Printed Food by Jasper L. Tran (Forthcoming in Minnesota Journal of Law, Science and Technology) (exploring the legal issues surrounding 3D-printed food, focusing on food safety and labeling)
  9. Overcriminalization and the Endangered Species Act: Mens Rea and Criminal Convictions for Take by Jonathan Wood (arguing that the Endangered Species Act’s “take” prohibition requires knowledge of all of the facts constituting the offense, including the identity of the species)
  10. Non-SSRN Bonus: Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can Two Wrongs Make It Right? by Richard J. Lazarus (Environmental Law) (questioning the efficacy of relying on atmospheric trust doctrine theories in litigation to address the pressing issue of global climate change)

Environmental Law SSRN Reading List: January 2016

SSRN Top Papers

After taking a much-needed Winter Break, the Harvard Environmental Law Review is back with another Environmental Law SSRN Reading List. Check out our motivation and methodology here. It seems like these authors had some time off in December too, because we’ve got a great batch of articles for you:

  1. (Ground)Waters of the United States: Unlawfully Excluding Tributary Groundwater from Clean Water Act Jurisdiction by Michael C. Blumm and Steven M. Thiel (Environmental Law, Vol. 46, No. 2, 2016) (arguing that EPA’s “waters of the United States” rule is under-inclusive because it categorically exempted all groundwater from CWA regulation)
  2. Livestock Production, Climate Change, and Human Health: Closing the Awareness Gap by Debra L. Donahue (Environmental Law Reporter, Vol. 45, 2015) (arguing that livestock should be removed from public lands for environmental, human health, and fiscal reasons)
  3. The Clean Power Plan: Testing the Limits of Administrative Law and the Electric Grid by Emily Hammond and Richard J. Pierce, Jr. (George Washington Journal of Energy and Environmental Law, 2016 Forthcoming) (considering four issues related to the Clean Power Plan that have not yet attracted the attention and analysis they deserve)
  4. Fukushima’s Shadow by Lincoln L. Davies and Alexis S. Jones (Vanderbilt Journal of Transnational Law, Vol. 48, No. 4, 2015) (exploring the primary responses to the Fukushima crisis, core tensions in energy policy, and the inherent complexity in energy and energy law and policy systems)
  5. The Paris Agreement: Historic Breakthrough or High Stakes Experiment? By Meinhard Doelle (Forthcoming, Special Issue: 6(1-2) Climate Law (2016)) (highlighting the key elements of the agreement reached in Paris, including its approach to mitigation, adaptation, loss & damage, finance, transparency and compliance)
  6. Conservation Easements and the Valuation Conundrum by Nancy A. McLaughlin (19 Florida Tax Review, 2016, Forthcoming) (examining the easement valuation case law and related abuses, and proposing alternative reforms informed by the subsequent lessons learned)
  7. Electricity Markets and the Clean Power Plan by William W. Hogan (HKS Working Paper No. 059) (exploring some of the effects of the Clean Power Plan and possible directions for relevant policies of electricity system operators)
  8. The Paris Climate Agreement: An Initial Examination by Jorge E. Vinuales (C-EENRG Working Papers No. 6) (examining the legal structure and content of the Paris Agreement adopted and analyzing the architecture of the Paris Agreement, focusing on its three main components)
  9. U.S. Renewable Energy Policy in Context by Lincoln L. Davies (15 Environmental Law and Policy 33 (2015)) (exploring the U.S. renewable energy policy and identifying five key categories of barriers to renewable energy development and deployment, and discussing which of those barriers U.S. policy addresses)
  10. Should We Care What the Pope Says About Climate Change? by Daniel Bodansky (109 AJIL Unbound 127 (2015)) (exploring the importance of an influential, non-political voice for highlighting the moral dimensions of the climate change problem)

[ELRS] From the Well Up: A California County Confronts Fracking at the Polls

By Malia McPherson, J.D. Candidate, Stanford Environmental Law Journal, Expected 2016

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

On November 4, 2014, the voters of San Benito County passed Measure J, a voter initiative banning hydraulic fracturing (‘fracking’) and all other high-intensity petroleum operations within county lines. Under California law, only a subsequent voter initiative can overrule this fracking ban. While it is not the first county or city within California to take a stand against fracking, San Benito’s path to a successful ballot initiative was unique. Despite being dramatically outspent in the run-up to the election, the San Benito anti-fracking coalition San Benito Rising defeated industry interests through a simple strategy of basic grassroots organization. The movement was largely leaderless, it was community focused, and it represented both minority and majority interests. How did it succeed? Given the potential risks posed by fracking, and the legal context that left a regulatory ‘gap’ for Measure J to fill, the San Benito experience shows that it is indeed possible for community-centered lawyering and the voter initiative process to protect community environmental integrity on a precautionary basis against encroachment from outside interests.

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[ELRS] EPA Unveils Final Clean Power Plan: So What’s All the Fuss About?

By Eric Anthony DeBellis, Senior Executive Editor, Ecology Law Quarterly.

This post is part of the Environmental Law Review Syndicate. Click here to see the original post and leave a comment.

On August 3, 2015, the EPA released its highly anticipated Clean Power Plan, establishing the nation’s first greenhouse gas emissions standards for existing power plants.[1] The Clean Power Plan (“the Rule”) also is the first of its kind in another sense: it employs a unique new regulatory framework that has drawn both praise and criticism. Here, I explain the legal controversy around the Rule and preview arguments both supporters and opponents are likely to raise in court.

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Environmental Law SSRN Reading List: November 2015

SSRN Top Papers

We at the Harvard Environmental Law Review are big fans of Yale Journal on Regulation’s Notice & Comment blog, and we have especially enjoyed reading Chris Walker’s monthly Administrative Law SSRN Reading List (October edition here). We haven’t seen anything similar for new environmental law scholarship though, so we have decided to try to fill this gap ourselves. HELR is pleased to present our first recap of (some of) the most interesting environmental law articles that have been posted to the Social Science Research Network (SSRN) in the past 60 days.

If you haven’t visited SSRN’s Legal Scholarship Network yet, you should. Law professors and practitioners often post works in progress and drafts that have been accepted for publication. Each article page provides statistics on abstract views and downloads so you can readily see which articles are making waves. SSRN also gives authors their own homepages, so you can click authors names to find more of their papers. And, perhaps best of all, SSRN is completely free to use.

Unfortunately for followers of environmental law, our broad field is fragmented online. SSRN has separate sites for its Environmental Law & Policy eJournal, Property, Land Use & Real Estate Law eJournal, U.S. Administrative Law eJournal, Climate Change Law & Policy eJournal, International Environmental Law eJournal, Natural Resources Law & Policy eJournal, Environmental Justice & Sustainability eJournal, Energy Law & Policy eJournal, Protected Lands Law & Policy eJournal, Food Law & Policy eJournal, and Animal Law eJournal (those are sorted in order of downloads on SSRN, by the way).

Rather than pick one of these eleven eJournals to follow or cover them all, we will have one staff member each month review these eJournals’ “Recent Top Papers” lists and use his or her judgment to curate a roundup of the ten most interesting new pieces overall. We hope you enjoy our selections!

Without further ado, we give you HELR’s reading list for this past month:

  1. Intra-Agency Coordination by Jennifer Nou (129 Harvard Law Review __ (2015, Forthcoming)) (exploring the way that agency heads manage “internal hierarchies and procedures” within an agency and considering normative implications of agency management for political and legal oversight)
  2. Antimonopoly in Public Land Law by Michael C. Blumm and Kara Tebeau (28 Georgetown Environmental Law Review no. 2 (2016), Forthcoming) (examining the theme of antimonopoly as a “cardinal feature” of American public land law over time and arguing that it should be preserved)
  3. Distributed Reliability by Amy L. Stein (University of Colorado Law Review, Forthcoming) (assessing the shift toward “customer-owned generation and related services like energy storage and demand response,” which has created new ownership models that are in tension with the existing regulatory regime for the electricity grid, and considering opportunities for enhanced coordination between utilities and these customers)
  4. Potential Liability of Governments for Failure to Prepare for Climate Change by Jennifer Klein, Columbia University (Sabin Center for Climate Change Law, August 2015) (exploring three potential legal claims against state and local governments for failing to prepare for the risks of climate change: negligence, fraud, and takings)
  5. FERC’s Expansive Authority to Transform the Electric Grid by Joel B. Eisen (UC Davis Law Review, Vol. 49, 2016, Forthcoming) (using a hundred-year historical analysis to conclude that Federal Energy Regulatory Commission (FERC) has “ample authority to pursue broad environmental and energy goals in transforming the electric grid,” for example through demand response or a carbon price)
  6. How Local Discrimination Can Promote Global Public Goods by Timothy Meyer (Boston University Law Review, Vol. 95, December 2015, Forthcoming) (arguing that state renewable energy programs provide benefits to global public welfare that the WTO failed to take into account when it found that local renewable energy subsidies unlawfully discriminate against foreign products)
  7. Deference for Realists: The Resurgent Major Questions Doctrine as a Chevron Safety Valve by Nathan D. Richardson (tracing the “major questions” doctrine cases and asking whether the doctrine—which is used to avoid Chevron deference—is a welcome development; the paper argues that this question is especially important as litigation of the EPA’s Clean Power Plan “bears all of the hallmarks of a major questions case”)
  8. Modeling Uncertainty in Climate Change: A MultiModel Comparison by Kenneth Gillingham et al. (Cowles Foundation Discussion Paper No. 2022) (presenting the results of the first comprehensive study of uncertainty in climate change modeling, looking at both model and parametric uncertainties; the paper finds that “parametric uncertainty is more important than uncertainty in model structure” and offers insight into tail events)
  9. Horne v. Department of Agriculture: Expanding Per Se Takings While Endorsing State Sovereign Ownership of Wildlife by John D. Echeverria and Michael C. Blumm (Maryland Law Review, Forthcoming) (examining to what extent the Supreme Court’s decision in Horne v. Department of Agriculture extends the Court’s takings jurisprudence by applying per se analysis and assessing the long-term impacts of the decision on wildlife)
  10. Global Development Goals: If at All, Why, When and How? by Sanjay G. Reddy and Ingrid Harvold Kvangraven (exploring foundational questions of global development goals: why have them, what function do they serve, and how might they be successful; the authors contend that “higher-level goals may play a useful role if the practical approach to them is embedded in a holistic and integrated vision of a better world”)