Localizing the Green Energy Revolution

The United States is on the verge of a new industrial revolution. Renewable energy could replace more than 60% of our current energy generation infrastructure in fifteen years. This change is critical, yet it risks failure. The renewable generation already built in the United States consists primarily of large-scale projects connected to transmission lines in rural areas. The expansive new generation needed to reduce carbon emissions must also be predominantly large-scale, and rural, for reasons of efficiency. But a revolution that focuses nearly exclusively on “big energy” is likely to encounter obstacles, and it has downsides that could be mitigated with a stronger focus on small-scale energy. Many rural Americans—predominantly Republican—oppose Democratic policies, particularly climate policies. Even avowedly green liberal communities have mounted stiff opposition to renewable energy in some areas. Many landowners—particularly farmers—welcome the income from renewable energy leases, but residents often object to the blinking lights, landscape disruption, unsightly wires, and other impacts of these projects. Beyond facing political opposition, a projected buildout of more than 200,000 miles of new transmission lines to support new large-scale renewable projects threatens to create negative infrastructural path dependence. This could be analogous to the federal highway network expansion of the 1950s, which largely cemented U.S. reliance on cars rather than mass transit and divided communities. We need a nationwide network of new long-distance transmission lines to connect large renewable energy generation to population centers. But small energy projects could replace the need for some of these wires. Policymakers should place greater emphasis on “small” distributed energy in the form of solar and wind generation over or near parking lots, roadways, and buildings; community-scale renewables and microgrids; and energy efficiency projects, such as weatherization of apartment buildings. This effort is likely to be more politically feasible than a revolution focused too heavily on large-scale projects. And when targeted properly, small-scale clean energy can reduce the crushing energy burdens faced by low-income communities, whether rural or urban. For the energy transition to be feasible and less objectionable from a community and present-day environmental perspective, energy policies should also ensure that large-scale renewable generation is built in ways that reduce host community impacts. Renewable or clean energy policies should prioritize projects on polluted or abandoned brownfields, as New York requires; on marginalized farmlands; or offshore. Policies should also require large-scale renewable energy developers to negotiate with host communities and offer benefits—another strategy followed in New York

Federalism, Democracy, and the 2020 Election

In the aftermath of the 2020 election, the United States has experienced an anti-democratic crisis, with a chief executive attempting to delegitimize the general election and declare victory in an election that all impartial observers stated he lost. In comparative terms, the U.S. election system has been much maligned – it is highly localized and partisan, and lacks the independent, apex institutions such as electoral tribunals that are characteristic of many modern democracies. This brief essay builds off our recent joint work on federalism to argue that state and local governments, which administer elections and have refuted claims of widespread voter fraud, are serving as important bulwarks against this threat. By separating and dispersing the functions of governance—the day to day work of governing—U.S. federalism provides protection against authoritarianism. The decentralization of authority over elections offers one particularly dramatic example of this dynamic in action. Indeed, the U.S. model of dispersing core functions, although messy and costly in other ways, may have important advantages in some contexts over the alternative model of centralized, apex institutions, especially by reducing vulnerability to capture

Regional Energy Governance and U.S. Carbon Emissions

The U.S. Environmental Protection Agency’s final rule that limits carbon dioxide emissions from existing power plants — the Clean Power Plan — is an environmental regulation that powerfully influences energy law and forms a key part of the U.S. plan to meet its voluntary international commitments under the December 2015 Paris Agreement on climate change. Even if portions of the Plan are ultimately struck down, almost any viable pathway to lower carbon emissions will require greater integration of these two areas of law to address the large percentage of U.S. emissions from the energy sector. This integration produces both challenges and opportunities for governance. The Clean Power Plan (or similar regulations likely to be promulgated under the Clean Air Act in the future) must rely on an environmental-law cooperative federalist implementation structure in which states implement federal standards. However, electricity markets and governance are highly regional, and numerous studies show the economic benefits of interstate coordination, whether through governmental cooperation or trading among utilities. The project of energy-environment integration will benefit from existing regional energy-based institutions that already integrate electricity sources from different states. But it will require enhancement of existing regional approaches to generation capacity planning and transmission expansion, the interconnection of generators to lines, and energy markets. It also will require more interstate, state-regional-federal, and interregional cooperation. This Article systematically explores the opportunities for implementation of U.S. carbon emissions regulation presented by regional energy governance, using the Clean Power Plan as a case study. The Plan is not only the most ambitious effort at energy-environment integration to date, but also illustrates the need for enhanced regional governance. The Plan’s many options for interstate coordination — from multistate plans to utility trading — do not ensure alignment with existing regional markets because coordination will be difficult for states that choose different approaches to emissions accounting. The Article provides a timely analysis of (1) why enhanced regional governance of carbon emissions is needed, (2) what barriers it faces and opportunities it presents, and (3) how states could build from existing regional approaches in other contexts to create new mechanisms for cooperation and enhance regional governance structures. Addressing these governance issues effectively in the transition to a lower carbon economy will reduce the implementation costs of carbon emissions reduction and improve the reliability of the electricity system

Coequal Federalism and Federal-State Agencies

Dividing authority between the federal government and the states is central to the theory and practice of federalism. Division is the defining feature of dual federalism, which dominates the U.S. Supreme Court’s federalism jurisprudence. Recent academic theories of federalism emphasize overlap and interaction but still assume that federal and state actors will work within separate institutions. Each approach can be problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism: coequal federalism. Under coequal federalism, federal- and state-appointed officials collaborate within a single agency that makes decisions binding on the federal government and the states. This form of federalism exists only within obscure niches of American governance, and it is largely absent from theoretical discussions. We argue that it should receive more extensive attention and use. We also explain how coequal federalism can function in practice, when it will offer a desirable alternative to more traditional approaches, and why it is constitutional

Grid Reliability Through Clean Energy

In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. Energy regulation is, we argue, siloed across three dimensions: (1) across substantive responsibilities (clean energy versus reliability); (2) across jurisdictions (federal, regional, state, and sometimes local); and (3) across a public–private continuum of actors. This segmentation renders the full convergence of clean-energy and reliability goals extremely difficult. Reliability-focused organizations operating within their silos routinely counteract climate policies when making decisions about how to keep the lights on. Similarly, legal silos often cause states and regional organizations to neglect valuable opportunities for collaboration. Despite the challenges posed by this disaggregated system, conceptualizing the sphere of energy reliability as siloed across these dimensions unlocks new possibilities for reform.We do not propose upending energy law silos or making energy institutions wholly public. Rather, we argue for calibrated reforms to U.S. energy law and governance that shift authority within and among the silos to integrate the twin aims of reliability and low-carbon energy. Across the key policy areas of electricity markets, transmission planning and siting, reliability regulation, and regional grid governance, we assess changes that would integrate climate and reliability imperatives; balance state, regional, and federal jurisdiction; and reconcile public and private values. We believe this approach to energy law reform offers a holistic and realistic formula for a cleaner, more reliable grid

Taxing Local Energy Externalities

There is a fundamental problem of scale in the governance of industrial development. For some of the fastest-growing U.S. industries, the negative impacts of development fall primarily at the local level, and the benefits tend to accrue more broadly to states and the federal government. These governments accordingly have inadequate incentives to address the very localized negative externalities of development. Yet states also increasingly preempt most local control over some forms of development. This creates a regulatory void, in which state and federal regulations are inadequate, and local governments lack the power to use traditional Pigouvian tools such as regulation, taxation, and liability to address local harms. Without these Pigouvian sticks, local governments are also constrained in their use of Coasean bargaining, in which they could threaten regulation or taxation to bring industry to the table and negotiate for private solutions. This gap is particularly evident in the energy space, in which oil and gas and associated pipelines, wind energy, and solar energy have strong local effects, but local control is constrained to varying degrees. This Article explores the reasons for this governance gap, including federalism concerns, political economic factors, and views about the relative competency of local government, and it proposes solutions that take these drivers into account. The Article uses the areas of renewable energy, oil and gas production, pipelines, and natural gas export terminals to demonstrate the highly localized externalities of energy development, explore the Pigouvian and Coasean tools available to address these externalities, and analyze state preemption of local governments’ use of these tools. Based on the lessons from these industries, it argues that a combined system of taxation and negotiation incentives would best fill the regulatory void in local energy law while addressing the concerns that have created this void

Regional Cooperative Federalism and the US Electric Grid

The U.S. Constitution makes no direct mention of regional governing entities, yet they are an entrenched part of our federalist system. In the area of electric grid governance, the federal government enlists independent, private entities called regional transmission organizations (RTOs) to implement federal policy and achieve state energy goals. RTOs are the most prominent form of regional cooperative federalism, yet other policy spheres, such as opioid control, encompass a similar approach. This is a twist on the classic form of cooperative federalism, in which the federal government relies upon individual states to achieve federal mandates. The regionally governed electric grid represents a critical policy area. The availability of reliable electricity directly drives economic and human health outcomes, and populating the grid with clean sources of electricity while maintaining grid reliability is an urgent endeavor. The use of regional cooperative federalism in this area therefore calls for a fresh look at federalism principles. Many RTOs are geographically massive; the largest RTO covers all or part of the territories of fifteen states. Yet RTOs better encompass some of the core federalism principles ascribed to more decentralized control, including policy experimentation and innovation, efficiency, and accountability to stakeholders. Some RTOs have been particularly innovative in formulating new policies to address changing circumstances, such as demand for more renewable energy. But in the accountability sphere, other RTOs have struggled to address stakeholder needs. Regional cooperative federalism will be increasingly important in a world of complex policy issues that spill beyond local and state lines yet require locally tailored solutions. This Article constructs a normative framework for this under-recognized approach, using the attributes of federalism as guideposts, and suggests a path forward for productively expanding and improving this governance form

Regional Cooperative Federalism and the US Electric Grid

The U.S. Constitution makes no direct mention of regional governing entities, yet they are an entrenched part of our federalist system. In the area of electric grid governance, the federal government enlists independent, private entities called regional transmission organizations (RTOs) to implement federal policy and achieve state energy goals. RTOs are the most prominent form of regional cooperative federalism, yet other policy spheres, such as opioid control, encompass a similar approach. This is a twist on the classic form of cooperative federalism, in which the federal government relies upon individual states to achieve federal mandates. The regionally governed electric grid represents a critical policy area. The availability of reliable electricity directly drives economic and human health outcomes, and populating the grid with clean sources of electricity while maintaining grid reliability is an urgent endeavor. The use of regional cooperative federalism in this area therefore calls for a fresh look at federalism principles. Many RTOs are geographically massive; the largest RTO covers all or part of the territories of fifteen states. Yet RTOs better encompass some of the core federalism principles ascribed to more decentralized control, including policy experimentation and innovation, efficiency, and accountability to stakeholders. Some RTOs have been particularly innovative in formulating new policies to address changing circumstances, such as demand for more renewable energy. But in the accountability sphere, other RTOs have struggled to address stakeholder needs. Regional cooperative federalism will be increasingly important in a world of complex policy issues that spill beyond local and state lines yet require locally tailored solutions. This Article constructs a normative framework for this under-recognized approach, using the attributes of federalism as guideposts, and suggests a path forward for productively expanding and improving this governance form

Federalism, Democracy, and the 2020 Election

In the aftermath of the 2020 election, the United States has experienced an anti-democratic crisis, with a chief executive attempting to delegitimize the general election and declare victory in an election that all impartial observers stated he lost. In comparative terms, the U.S. election system has been much maligned – it is highly localized and partisan, and lacks the independent, apex institutions such as electoral tribunals that are characteristic of many modern democracies. This brief essay builds off our recent joint work on federalism to argue that state and local governments, which administer elections and have refuted claims of widespread voter fraud, are serving as important bulwarks against this threat. By separating and dispersing the functions of governance—the day to day work of governing—U.S. federalism provides protection against authoritarianism. The decentralization of authority over elections offers one particularly dramatic example of this dynamic in action. Indeed, the U.S. model of dispersing core functions, although messy and costly in other ways, may have important advantages in some contexts over the alternative model of centralized, apex institutions, especially by reducing vulnerability to capture