Grid Modernization and Energy Poverty

Grid modernization holds the alluring promise of rationalizing electricity pricing, saving consumers money, and improving environmental quality all at the same time. Yet, we have seen only limited and patchwork regulatory initiatives towards significant grid modernization in the United States. Outside of a few leading states, state energy regulators appear loath to embrace full-throated versions of the project. This article argues that the under-discussed problem of energy poverty in the United States is a critical contributing factor in the gap between grid modernization’s possibilities and our regulatory reality. Only by explicitly understanding how the issues of grid modernization and energy poverty intersect, and by coming up with creative ways to address the challenges created, can regulators gain the comfort they need to move forward with grid modernization reforms in the face of rising inequality and substantial energy poverty. To get at these connections, this Article utilizes a case study of New York State’s grid modernization efforts. As part of these efforts, regulators there have pursued an inclusive inquiry into how best to manage the ways in which grid modernization might have disparate impacts on lower-income consumers, producing some important early-stage lessons for emerging modernization efforts in other states

From the States Up: Building a National Renewable Energy Policy

In 2006, a U.S. Government Accountability Office (GAO) report concluded that “[r]educing the nation’s dependence on oil and carbon dioxide emissions in the next 25 years is not unlike the 1960s challenge to put a man on the moon.” In fact, this analogy may be understated. While the scope of the two challenges is similarly daunting, the consequences of failure are potentially much more serious in the case of the energy challenge. One key component of addressing this challenge will be changing the ways in which the U.S. meets its seemingly insatiable electricity demand. The environmental, foreign policy, health, and national security costs of relying on fossil fuels to generate our nation’s electricity are enormous. Not only are power plants responsible for approximately 40 percent of U.S. carbon dioxide emissions, they are also a major source of nitrous oxide, mercury, and sulfur dioxide emissions. Consequently, our high usage of power plants as a source of energy further entrenches our reliance upon fossil fuel sources located in some of the world’s most geopolitically unstable regions. In contrast, renewable energy has the potential to play a pivotal role in addressing our nation’s energy challenge by providing a clean, domestic substitute for foreign, polluting fossil fuels. In concert with energy efficiency policies to reduce United States’s energy demand, an increase in the use of renewable energy will be one critical component of altering the country’s energy mix and addressing climate change. But some thirty years after the U.S. first began promoting renewable energy, we have a woefully underdeveloped national strategy. Many states have stepped in to fill this national void by adopting their own renewable energy strategies. Most significantly, twenty-five states and the District of Columbia have adopted Renewable Portfolio Standards (RPS) that mandate that utilities purchase a certain percentage or amount of their power from renewable sources. However, it seems unlikely that such policies can keep pace with national energy demand so as to significantly change the national energy mix. Whereas some have argued that states should continue their “race to the top” as the primary policy engine for renewable energy growth, this paper argues the opposite: the federal government is uniquely positioned to bring about a large-scale change in our electricity supply efficiently and effectively, and should do so by adopting a national RPS. Part I of this paper outlines why we should regulate renewable energy, current policies and their effectiveness, and why an RPS is the U.S.’s most promising future policy option. Part II discusses federalism and renewable energy, identifying key reasons that the federal government should be at the forefront of renewable energy policy through adoption of a national RPS. Part III suggests a strategy for moving forward on a national RPS and discusses the interactions of renewable energy and climate change policy

From the States Up: Building a National Renewable Energy Policy

In 2006, a U.S. Government Accountability Office (GAO) report concluded that “[r]educing the nation’s dependence on oil and carbon dioxide emissions in the next 25 years is not unlike the 1960s challenge to put a man on the moon.” In fact, this analogy may be understated. While the scope of the two challenges is similarly daunting, the consequences of failure are potentially much more serious in the case of the energy challenge. One key component of addressing this challenge will be changing the ways in which the U.S. meets its seemingly insatiable electricity demand. The environmental, foreign policy, health, and national security costs of relying on fossil fuels to generate our nation’s electricity are enormous. Not only are power plants responsible for approximately 40 percent of U.S. carbon dioxide emissions, they are also a major source of nitrous oxide, mercury, and sulfur dioxide emissions. Consequently, our high usage of power plants as a source of energy further entrenches our reliance upon fossil fuel sources located in some of the world’s most geopolitically unstable regions. In contrast, renewable energy has the potential to play a pivotal role in addressing our nation’s energy challenge by providing a clean, domestic substitute for foreign, polluting fossil fuels. In concert with energy efficiency policies to reduce United States’s energy demand, an increase in the use of renewable energy will be one critical component of altering the country’s energy mix and addressing climate change. But some thirty years after the U.S. first began promoting renewable energy, we have a woefully underdeveloped national strategy. Many states have stepped in to fill this national void by adopting their own renewable energy strategies. Most significantly, twenty-five states and the District of Columbia have adopted Renewable Portfolio Standards (RPS) that mandate that utilities purchase a certain percentage or amount of their power from renewable sources. However, it seems unlikely that such policies can keep pace with national energy demand so as to significantly change the national energy mix. Whereas some have argued that states should continue their “race to the top” as the primary policy engine for renewable energy growth, this paper argues the opposite: the federal government is uniquely positioned to bring about a large-scale change in our electricity supply efficiently and effectively, and should do so by adopting a national RPS. Part I of this paper outlines why we should regulate renewable energy, current policies and their effectiveness, and why an RPS is the U.S.’s most promising future policy option. Part II discusses federalism and renewable energy, identifying key reasons that the federal government should be at the forefront of renewable energy policy through adoption of a national RPS. Part III suggests a strategy for moving forward on a national RPS and discusses the interactions of renewable energy and climate change policy

Grasping for Energy Democracy

Until recently, energy law has attracted relatively little citizen participation. Instead, Americans have preferred to leave matters of energy governance to expert bureaucrats. But the imperative to respond to climate change presents energy regulators with difficult choices over what our future energy sources should be, and how quickly we should transition to them—choices that are outside traditional regulatory expertise. For example, there are currently robust nationwide debates over what role new nuclear power plants and hydraulically fractured natural gas should play in our energy mix, and over how to maintain affordable energy for all while rewarding those who choose to put solar panels on their roofs. These questions are far less technical and more value laden than most of the questions energy bureaucrats faced in the past. Consequently, these issues have provoked a growing call for the “democratization” of energy law, so that the field might better inject Americans’ preferences and goals into decisions over energy policy. But exactly how the democratization of energy law might proceed remains unclear. Indeed, the concept of “energy democracy” has taken on significantly different—and frequently conflicting—meanings in debates over energy law reform. This Article argues that the lack of clarity over the meaning of energy democracy presents a troubling hurdle to the burgeoning project of democratizing energy law, as different conceptions of the term demand divergent legal reforms. To make this case, it first identifies three distinct conceptions of energy democracy in discussions of energy law reform: consumer choice, local control, and access to process. It then explains how each of these visions counsels for a different set of regulatory reforms, which instantiate distinct processes for channeling citizen preferences about the future of our energy system. As regulators choose among these visions, it is imperative that they understand the stakes of embracing any particular conception of “energy democracy.” This Article advances that endeavor by tying the rhetoric of energy democracy to concrete proposals for reform, and evaluating what each portends for the “democratization” of energy law. It concludes with a note of caution about too swiftly embracing “consumer choice” or “local control,” since each risks narrowing modes of participation in ways that may diminish from a robust conversation about the grid-wide changes needed in U.S. energy supply

Lessons Learned: Transferring the European Union\u27s Experience with Energy Efficiency Policy to China

The European Union (EU) has been at the vanguard of passing forward-thinking energy efficiency policies over the past two decades, although it is still grappling with achieving full implementation of these policies. More recently, China has also been active in making energy efficiency a part of its national energy strategy. However, China has struggled to craft effective energy efficiency laws and to achieve implementation of these laws throughout the country. If successful, the potential for improvements and energy savings in China is tremendous. China has begun to decouple its GDP and its growth in energy consumption over the past twenty years,4 but it still uses five times as much energy as the EU to produce one unit of GDP because its gains in energy efficiency have not kept pace with its rapid growth. This inefficiency, coupled with the massive continued growth projected for China in the coming decades, creates opportunities to save (or waste) vast amounts of energy, depending on the extent to which China can implement effective energy efficiency policies.6 The Chinese government has made considerable progress in enacting new energy policies and in showing awareness of the energy challenges it faces. However, most commentators express doubt in the central government’s ability to implement and follow through on its stated policy goals. Experts identify implementation and enforcement of existing laws, as well as creating better incentives for investment in energy efficiency, as key goals for making energy efficiency a successful part of China’s energy future. This note seeks to detail the key strategies that the EU has adopted in the field of energy efficiency, and then to draw lessons from the EU’s experience that might be helpful as China moves forward in implementing its own energy efficiency policy. While the EU still has far to go in achieving its energy efficiency potential, its fifteen years of experience in crafting and implementing energy efficiency laws offer some valuable insights from its successes and persisting challenges. The EU is the focus of this note not only because of its leadership and voluminous activity in the field of energy efficiency, but also because its governmental structure parallels China’s in some instructive ways. That is, the EU’s supranational government oversees an incredibly diverse range of EU member states, each with national governments that diverge in priorities and capabilities. Similarly, China’s national government works with a diverse range of provincial governments that are in charge of much of the day-today implementation of national laws and policies. Thus, the lessons learned from the EU’s struggles with balancing responsibilities between levels of government may help China in its similar effort

Decarbonization in Democracy

Conventional wisdom holds that democracy is structurally ill-equipped to confront climate change. As the story goes, because each of us tends to dismiss consequences that befall people in other places and in future times, “the people” cannot be trusted to craft adequate decarbonization policies, designed to reduce present-day, domestic carbon emissions. Accordingly, U.S. climate change policy has focused on technocratic fixes that operate predominantly through executive action to escape democratic politics — with vanishingly little to show for it after a change in presidential administration.To help craft a more durable U.S. climate change strategy, this Article scrutinizes the purported incompatibility of decarbonization and democratic politics. It argues that well-designed citizen input and control could advance U.S. efforts to address climate change, rather than hinder them. To foster such input and control, the Article contends that decarbonization can be disaggregated into three distinct questions: (1) whether to decarbonize; (2) how fast; and (3) how to decarbonize. Although people’s tendencies to prioritize the present and the local may render them ill-equipped to answer the first two questions, the third question, “how” to decarbonize, is different. That question focuses on the shape we want our economy and communities to take in the decades to come, and is thus amenable to more citizen engagement. The Article then traces how more citizen engagement and empowerment on this question of how to decarbonize could advance decarbonization efforts. Across partisan lines, Americans consistently prioritize clean energy to a degree not reflected in our national climate politics, institutions, or energy mix. These dynamics suggest that reforms that shift decisionmaking authority away from the energy industry, and into the hands of communities and citizens, have the potential to transform the political economy of decarbonization.After making the case for more citizen control of decisions around how to decarbonize, the Article offers two complementary reforms to help achieve this aim, which venture well beyond the standard administrative law solution set. It proposes that states harness the power of public utility law to require utilities to better gauge and respond to their customers’ values, and offer communities more control over their energy supply as a method of counteracting utilities’ economic and political dominance

Rethinking Grid Governance for the Climate Change Era

The electricity sector is often appropriately called the linchpin of efforts to respond to climate change. Over the next few decades, the U.S. electricity sector will need to double in size to accommodate electric vehicles, at the same time that it transforms to run entirely on clean energy. To drive this transformation, states are increasingly adopting 100% clean energy targets. But fossil fuel corporations are pushing back, seeking to maintain their structural domination of the U.S. energy sector. This article calls attention to one central but under-scrutinized way that these companies impede the clean energy transition: Incumbent fossil fuel companies essentially run the United States’ electricity grid, writing its rules in ways that favor their private interests at the expense of societal goals.In most of the country, the electricity grid is managed by Regional Transmission Organizations (RTOs), which operate under Federal Energy Regulatory Commission (FERC) oversight. These organizations—formed in the late 1990s—have a distinct intellectual lineage in the privatization and new governance movements of that time. Most RTOs are structured as private industry clubs, in which industry members “vote” on the rules for regional electricity markets and grid operation. This governance arrangement has proven successful at maintaining a reliable grid but often serves as an impediment to progress on clean energy. Over the twenty years of their existence, many RTOs have resisted incorporating clean energy and energy conservation measures into their grids and market rules, despite strong evidence that treating these resources commensurately would lower costs and improve market functionality. Now, several regions are pursuing reforms in the name of “investor confidence” and “fuel security” that privilege coal and natural gas resources—the same fossil fuels that many states are trying to phase out of their energy mix.This Article’s central contention is that it is time to reevaluate the United States’ functionally privatized mode of electricity governance, to make it work for an era in which regulatory priorities are shifting in response to climate change. U.S. electricity law suffers from a gaping and growing accountability gap, in which neither FERC nor states have the authority needed to make electricity markets bend to democratically established prerogatives that harm industry incumbents. To remedy the situation, federal and state regulators need more robust authority to shape energy market rules to public aims. Drawing from informative differences across RTOs, the Article concludes with four reform pathways, suggesting that FERC or Congress might (1) pare back RTOs’ responsibilities, (2) enhance state and federal oversight capabilities, (3) police corporate agglomeration in the sector, and (4) explore public ownership or control over the grid

Decarbonization in Democracy

Conventional wisdom holds that democracy is structurally ill-equipped to confront climate change. As the story goes, because each of us tends to dismiss consequences that befall people in other places and in future times, “the people” cannot be trusted to craft adequate decarbonization policies, designed to reduce present-day, domestic carbon emissions. Accordingly, U.S. climate change policy has focused on technocratic fixes that operate predominantly through executive action to escape democratic politics — with vanishingly little to show for it after a change in presidential administration. To help craft a more durable U.S. climate change strategy, this Article scrutinizes the purported incompatibility of decarbonization and democratic politics. It argues that well-designed citizen input and control could advance U.S. efforts to address climate change, rather than hinder them. To foster such input and control, the Article contends that decarbonization can be disaggregated into three distinct questions: (1) whether to decarbonize; (2) how fast; and (3) how to decarbonize. Although people’s tendencies to prioritize the present and the local may render them ill-equipped to answer the first two questions, the third question, “how” to decarbonize, is different. That question focuses on the shape we want our economy and communities to take in the decades to come, and is thus amenable to more citizen engagement. The Article then traces how more citizen engagement and empowerment on this question of how to decarbonize could advance decarbonization efforts. Across partisan lines, Americans consistently prioritize clean energy to a degree not reflected in our national climate politics, institutions, or energy mix. These dynamics suggest that reforms that shift decisionmaking authority away from the energy industry, and into the hands of communities and citizens, have the potential to transform the political economy of decarbonization. After making the case for more citizen control of decisions around how to decarbonize, the Article offers two complementary reforms to help achieve this aim, which venture well beyond the standard administrative law solution set. It proposes that states harness the power of public utility law to require utilities to better gauge and respond to their customers’ values, and offer communities more control over their energy supply as a method of counteracting utilities’ economic and political dominance

Neutralizing the Atmosphere

“Net zero” has rapidly become the new organizing paradigm of climate change law. In the past few years, thousands of countries, companies, states, and cities have developed pledges that promise by a set date—typically around 2050—that any carbon they emit will be counterbalanced by capturing an equal amount of carbon out of the atmosphere. Collectively, these pledges now cover more than 91% of the global economy. This widespread adoption of scientifically aligned climate policy appears on its surface like a cause for celebration. However, concerns are mounting. To date, critiques of net zero have centered on what this Feature terms “accounting” risks: that is, risks that pledges in action will fail to live up to pledges on paper. This Feature argues that there are two broader normative and political risks with net zero that are underdiagnosed but may prove more intractable. First, the net-zero framework is agnostic regarding the manner in which to neutralize atmospheric emissions, leaving each participating entity—including both governments and corporations—to determine its own preferred strategy. But decisions around how to reach net-zero emissions are contested, impactful, and often politically explosive. As net zero has proliferated as a framing paradigm, there has been a marked shift in the climate change policy conversation towards recognizing climate as imbricated with racial and economic justice. These considerations are ignored in the net-zero framing, with its emphasis on pristine carbon balance sheets. The second risk this Feature identifies is the “collective- achievement challenge”: if the world continues to pursue an atomized approach to net zero, it is likely that entities will overrely on certain cost-effective strategies—like tree planting—at scales that cannot be collectively achieved, at least not without substantial collateral social consequences. Disjunctive efforts toward net zero thus threaten to undermine the legal, political, and physical foundations of global decarbonization efforts. Understanding these risks counsels for restructuring the private sector’s role away from individualized net-zero targets toward a “reduce and support” approach that would better collectivize and rationalize net-zero policy. For public pledges, these risks counsel for more attention to net zero’s administering institutions and governance structures to foster more democratic, holistic decision-making about the shape and content of our decarbonized future