Thursday, May 26, 2011
This week, many professors have gathered in Stevenson, Washington for the Rocky Mountain Mineral Law Foundation's Fifteenth Annual Institute for Natural Resources Law Teachers, and we have been inundated with interesting and sometimes surprising information. We have learned, for example, that the National Marine Fisheries Service (now the NOAA Fisheries Service) approved limited lethal management of the smart sea lions that troll the waters of the fish ladders at Bonneville Dam for abundant salmon snacks. The Humane Society successfully challenged this action on appeal from the United States District Court for the District of Oregon. According to the Ninth Circuit, the NOAA Fisheries Service's explanation for allowing sea lion killings was "incomplete and inadequate to permit meaningful judicial review;" the Service found that sea lions had a "significant negative impact" on salmon populations by killing between 0.4 and 4.2 percent of salmonids annually, but it found no significant impact to salmon when humans killed 5.5 to 17 percent of the population. This May, the NOAA Fisheries Service re-approved sea lion euthanization at the dam, but yesterday the service announced that it would suspend sea lion killings through September 2011 because the Humane Society and the Wild Fish Conservancy once again have sued the agency.
This post is supposed to address electricity storage, though, so now to my main point. During this conference, discussion of the Bonneville Dam has raised several challenging issues--not just sea lion euthanization. Most of us already know that transmission is an exceedingly important component of our energy system. The transmission grid is an aging, delicate structure that can fail in an instant, and it requires constant monitoring and maintenance if blackouts and brownouts are to be avoided. It is also the bottleneck that is holding up many proposed new generation projects--including renewable projects. But for me, this point hadn't fully sunk in until this conference, where we heard from several speakers about the Bonneville Power Administration's inability to accommodate the massive quantities of wind-generated electricity produced in Washington and Oregon--even after the BPA received several billion dollars in federal stimulus loans to expand its transmission grid. The BPA simply doesn't have room in its existing lines for the wind power, and the BPA argues that it cannot spill more water and reduce the quantity of hydroelectricity now flowing through the lines. So the wind farms have been "curtailed" and could lose millions of dollars in production tax credit money, which only flows into the farms' accounts when the farms are actually producing electricity; according to ClimateWire, wind energy producers could lose "as much as $50 million per year under worst-case conditions of excess generation and limited transmission capacity to export power out of the region."
The problem is that most electricity must be consumed at the moment that it is produced because we have very limited storage capacity for electricity. And if more electricity is produced than is demanded, renewables may continue to be curtailed--or they won't be built in the first place. As David Spence concludes in The Political Barriers to a National RPS (42 Conn. L. Rev. 1451, 1459 (2010)), "[A]s renewable generation is deployed, it will not displace fossil-fueled power on a megawatt-to-megawatt basis, unless and until we develop the capacity to store electric energy in larger quantities. While a great deal of research energy is being devoted to this problem, commercially viable alternatives that solve the intermittency dilemma remain unavailable."
This situation leads to the obvious question of why we haven't invested more in storage projects. Is America's general lack of commitment to storage simply part of our general underinvestment in R&D? Is improving storage not as popular of a political infrastructural goal as, say, repaving a highway? Do the groups that support storage lack sufficient lobbying power? I don't know the answer, but I can point to some of the storage efforts that are in the works and to materials that describe potential storage solutions. In 2007, Congress had sufficient political inspiration to enact the United States Energy Storage Competitiveness Act of 2007. Among other things, the Act directs the Secretary of Energy to "carry out a research, development, and demonstration program to support the ability of the United States to remain globally competitive in energy storage systems for electric drive vehicles, stationary applications, and electricity transmission and distribution." The Department of Energy's general introduction to energy storage is available here, and the National Renewable Energy Laboratory's description is here; NREL also has published a longer energy storage report. The DOE posts a list of some of the storage projects that it has funded, which include, for example, compressed air storage, "superconducting magnetic energy storage," and flywheels. Finally, the Pew Center has a useful report on electricity storage for renewables, a May 31 article in RenewablesBiz summarizes the federal funding available for storage research (thanks to a student for alerting me to this), and Drew Thornley has a discussion of electricity storage in Texas Wind Energy: Past, Present and Future, 4 Envt'l & Energy L. & Pol'y J. 68 (2009), which does not appear to be available on SSRN. Deborah Behles, in Why California Failed to Meet its RPS Target, 17 Hastings W.-N.W. J. Envtl. L. & Pol'y 163 (2011), also has a useful analysis of storage, including operating storage projects in California.
I'm sure that I have missed many important sources here, and I welcome comments and suggestions. Questions about underinvestment in storage seem ripe for more law review analysis.
On the Administrative Law Prof Blog, Ted McClure (Phoenix) recently made an argument in response to one of my earlier posts about the political nature of Yucca Mountain. I had noted that "everything in administrative law is political" -- one of seven "aphorisms of administrative law" I use to try to convey the full extent of the field to my students. McClure contends that my assertion is both too broad and too disconnected from what administrative law practitioners do on a daily basis:
I suggest that Prof. Davies is talking about political science rather than law. Had he said "Everything in administrative law can be political." I would have agreed. . . . But [politics] often [do not intrude in decisionmaking], especially at the level of involvement at which most of our alumni will be engaged. . . . It is good for people, especially lawyers, to understand the politics and policies of government. But that's not what we have to teach in law school, because that's not what the clients of our alumni are going to need.
McClure has a point. It would be more precise to say that everything in administrative law "can be" political, because there are certainly some things that are not. By the same token, it would be even more accurate to say that everything in "the practice of administrative law" can be political, because, as McClure rightly notes, administrative law practice more often than not deals with agency procedures, and procedure tends to be less political than substantive policy decisions. We lawyers parse words for a living. We need to be careful how we do so. Here, the truth is buried in the context; it matters what kind of administrative law we are talking about: the practice, the procedure, the substance adopted.
Most administrative law classes, including mine, focus on procedure, and rightly so. Substantive "administrative law" is left to other doctrinal courses: employment law, environmental law, health law, immigration law, tax law, and so on. Still, procedure and substance are intertwined in life, so just as it would be inappropriate to excise the procedure entirely from doctrinal courses, some substance must come into procedure.
This is the chief point of my aphorism. One cannot comprehend administrative law without understanding the politics that underlie it. This is just as true for the pragmatic practicing administrative lawyer as it is for the suppositional administrative law student. Does the average administrative lawyer help craft agency policy on a daily basis? No. But can the same lawyer effectively advise her client without grasping the current administration's agenda, what policies that administration is sympathetic to and which it is not, and who holds power within the agency's four walls? Also no. The necessity of a legal brief one day may be the need for bureaucratic gear greasing the next.
- Democrats' emphasis on high gas prices as a way to zero in on tax credits for oil companies, when the two are not linked
- Republicans' "drill, baby, drill" counter-punch of claiming a need for increased domestic crude production due to today's nearly $4/gallon gas prices when, again, the two are unrelated
- Standing congressional calls for national energy security, yet a failure for over a decade to adopt a national renewable energy standard, which would by definition enhance U.S. independence
- The tussle in Congress over the provision in the Energy Independence and Security Act of 2007 that phases out production of inefficient (but not more efficient) incandescent light bulbs, despite industry's support for keeping the provision in place
These examples all come from the legislative, rather than executive, branch, but one need not look hard to find them in all three segments of our government.
Any serious student of energy law -- or administrative law -- would do well to note that. They would also do well, as Ted McClure aptly observes, to understand that any policy Congress puts in place ultimately will be implemented by an agency, and the agency will be bound by numerous laws and procedures.
Politics matter. Procedure does too.
Wednesday, May 25, 2011
Previously, I have voiced my frustration of how much the mentality of climate science-shimemet science has entrenched itself in the Republican Party. This week Stephen DeCanio wrote a very thoughtful post on Grist that addresses the problem of climate change from the following perspective:
Suppose you believe, as I do, in basic conservative principles (free enterprise and a market economy, limited government, and minimal change in established institutions that work well), but also acknowledge that anthropogenic climate change presents a sufficient danger that something needs to be done about it.
He goes on to put forward a proposal that would engage foreign governments, provide market incentives to drawn in participation from developing countries, invest in green jobs, and take steps to reduce U.S. reliance on fossil fuels. As he lays out his argument, he attempts to tie his suggestions to his self-described conservative principles. Are these the right solutions for conservatives confronting climate change? I am not sure. However, I give DeCanio a great deal of credit for trying to further the conversation.
While many conservatives in the political limelight have shown little interest in addressing climate change, ducking this issue--while convenient--is irresponsible. As silly as this sounds, think of it this way, in the off chance that the vast majority of relevant experts in the world are not part of some vast conspiracy to bake the science on this one, shouldn't conservatives have a contingency plan other than denial?
Climate change is a challenge facing all of us. Our system of government can't work with such partial engagement. To rift off of a line often spouted by a conservative radio talk show host, grappling with this problem can't be done effectively with half our brains tied behind our backs. Here's hoping that more conservatives will add their Mega Dittos to this sentiment.
-- Brigham Daniels
Tuesday, May 24, 2011
It’s time for another installment of my series on issues that seem too big for environmental law to deal with. This week, the big issue is consumption, aka the incredible amount of stuff we buy.
I hesitate to point to this one as too big, because several environmental law scholars have taken it on very successfully. The work of Michael Vandenbergh stands out. He has fleshed out the carbon-neutral individual; proposed supply chain regulation that could affect Chinese energy use; and built a stabilization wedge from household behavior change. Other references points include Doug Kysar’s work on the process/product distinction and Jim Salzman’s admirably early work on sustainable consumption and the law. Dan Farber has also recently been speaking and posting (here and here) about consumption.
So maybe, just maybe, this one falls short of “too big.” But I would maintain that it is a tough issue for environmental law scholars to get a handle on and say something useful about. Take me, for example. I write a lot about regulation and enforcement, so I have often thought about what I can say about regulation to reduce consumption. The answer I tend to come to is “not much,” at least with regard to traditional regulatory approaches. Regulation of household consumption is a non-starter for obvious reasons. Regulation of industrial consumption is also tricky business for reasons I discussed in a previous post. While voluntary regulation such as eco-labeling or voluntary commitments has potential, I can’t help but see it as a band-aid on a bullet hole.
And there is something bigger (of course!). I often find myself thinking that consumption truly does lie at the heart of present-day American capitalism and culture. Then the question becomes: “what can environmental law do to reshape American capitalism and culture?” That seems pretty big.
- Lesley McAllister
p.s. A few other great resources on consumption:
* Annie Leonard’s The Story Of Stuff
* Michael Vandenbergh’s (et al.) recent piece on carbon labeling in Nature Climate Change
* The field of happiness studies (complete with its own journal),
Monday, May 23, 2011
The U.S. Forest Service recently released a report detailing the projected impacts population growth and urbanization will have on southeastern forests over the next 50 years, reducing them by as much as 23 million acres (or 13%). The report provided four primary reasons for the decline: population, climate change, timber markets and invasive species.
Southern forests are among the most biodiverse forests in the United States, and a disproportionate number of endangered species are located in the southeast when compared to other regions of the U.S.
The report indicates that private individuals and companies will be crucial to the effort to curb the destruction, noting that nearly 90% of the forestland in the south is privately owned. Even so, regulation of land uses such as private forestry and urban development is seen as a role constitutionally reserved for state and local governments. In turn, the southeastern U.S. maintains some of the most lax forest regulatory standards (not to mention zoning standards) in the world, even less rigorous than many developing countries, according to a study performed by Cashore and McDermott and as seen in the below chart (a "9" denotes the most stringent forest regulatory standards and a "0" the least).
Most all southeastern U.S. states maintain "best management practices" that are completely voluntary on the part of the forest manager. These BMP's may suggest to a private forester that he or she leave a buffer zone of trees around watercourses in watersheds in order to prevent erosion, siltation and eutrophication of waterways, among other environmental and economic harms. But foresters can feel free to ignore those "standards" and clear timber to the edge of the stream if they so choose. The only claim an adjacent landowner might have against the offending party is a common law nuisance claim, if there was damage caused to their property by the erosion, etc., since no regulatory remedies are available.
A co-author of the Forest Service report stated "We're counting on policy-makers...to implement and act on some of the findings...That is our hope." Hopefully policy-makers at the state and local level will take heed of the report and make much needed changes to the approach and rigor of both southern forest management and urban growth control. As a southern forester myself, I really would prefer not to have 10% fewer trees gracing this beautiful, and environmentally rich, part of the country.
- Blake Hudson
Sunday, May 22, 2011
* The New York Times reports on how the Fukishima disaster has complicated the United States nuclear waste storage challenge.
* Researchers at MIT are developing a "third" type of solar power technology (solar-thermoelectric).
* An independent study faulted Massey Energy this week, as well as lax oversight by federal and state regulators, for the April 5, 2010 explosion in the Upper Big Branch mine in Montcoal, West Virginia.
* Batteries are making waves, at least in one place, in the electric supply business.