Rohleder, Jennifer M.

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Sustainable Development Law & PolicyVolume 8Issue 1 Fall 2007: Federal Environmental Policy Article 8Translating State Experience into Federal ClimatePolicyJennifer M. RohlederFollow this and additional works at: http://digitalcommons.wcl.american.edu/sdlpPart of the Environmental Law CommonsThis Feature is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in Sustainable Development Law & Policy by an authorized administrator ofDigital Commons @ American University Washington College of Law. For more information, please contact fbrown@wcl.american.edu.Recommended CitationRohleder, Jennifer M. “Translating State Experience into Federal Climate Policy.” Sustainable Development Law & Policy, Fall 2007,12, 78.12Fall 2007 The debate over U.S. federal climate change policy has never been stronger. While a federal climate policy is being formulated, the states are developing climate expe-rience and expertise that the federal government can leverage. This trend begs the question of whether state policies should be used as a template for federal climate policy.One area where states have developed expertise is in the registration and tracking of greenhouse gas (“GHG”) emissions. Even though tracking GHG emissions has recently become a mainstream federal issue, Wisconsin has long been a leader in this area. Since 1993, Wisconsin has required any facility that emits more than 100,000 tons of carbon dioxide (“CO2”) to report its emission levels to the state Department of Natural Resources. It is the only state with such a requirement.1 Addi-tionally, dozens of sources that fall well below the threshold voluntarily report their emis-sions, providing the state with a detailed, multi-year profile of its major CO2 sources. The pro-file includes most major electric utilities in the state, a wide range of large industries, and a mixture of smaller sources.2Moreover, several states have developed “carbon adders” to compare investment options with respect to the possible future costs of mitigating GHG emissions.3 A carbon adder is an expected future cost of CO2 equivalent assumed during invest-ment comparisons. Due to the highly uncertain and controversial nature of future damages of climate change, a carbon adder esti-mates only the future compliance costs of carbon restraint rather than the economic impacts of future climate change.4 Of the states with carbon adders, Oregon’s is the most broadly applied. The Oregon Public Utility Commission (“PUC”) requires all regulated utilities to include analysis on a range of carbon costs in their integrated resource planning process since 1993.5  Similarly, the California PUC requires the state’s investor-owned utilities to include a carbon adder in their resource plans.6 Colorado’s carbon adder only applies to one utility because the carbon adder resulted from a litigation settle-ment agreement with environmental groups.7 States have often led in policy development, which can influence federal action. States are often better positioned to reach consensus and act more quickly than the federal gov-tranSlatinG State experience into  feDeral climate policyby Jennifer M. Rohleder** Jennifer Rohleder is a JD candidate, May 2008, at American University, Washing-ton College of Law. Ms. Rohleder welcomes comments at jp1845a@american.edu.States are often better  positioned to reach  consensus and act more quickly than the  federal government.ernment. The political interests of most states are relatively cohesive when compared to the national policy-making pro-cess. State government units are smaller and closer to affected constituencies, thus states are better able implement policy responses more quickly.Policy diffusion from the state to the federal level is known as vertical diffusion.8 Expanding effective state-level energy and climate policies to the national level seems to be a logical and efficient method of developing federal climate policy. The ques-tion is: how do we translate state experience into federal policy? The World Resources Institute conducted a study on how state policies influence federal regula-tions. The study identified and evaluated several factors that contributed to successful verti-cal diffusion, the most important of which, particularly for envi-ronmental/energy issues, was state officials championing the cutting-edge policies their states have implemented in the federal policy debate.9 The study con-cluded that states can play a sig-nificant role in the development of a national policy. However, no single factor can guarantee vertical diffusion although certain factors, such as the power of example and the extent of horizon-tal policy diffusion (from state to state) are cited strong factors informing federal policy. States are considered the laboratories of democracy, testing new ideas and innovative policies that can be used by national policy-makers. Vertical diffusion is only effective if the federal policymakers learn from the experiences of the states and pull the best features together into an overarching national policy. Unfortunately for states, as climate policy discussions expand to the national level states risk losing their leadership status with respect to the policy agenda. In addition, a national discussion invites broader interests to the negotiating table. Further compli-cating vertical diffusion is the fact that states can only maintain their role as policy incubators and innovators so long as federal policy does not preempt state actions.Endnotes: Translating State Experience Into Federal Climate Policy continued on page 7878Fall 2007enDnoTes: State effortS to promote renewable enerGy continued from page 913 Volkmar Lauber, REFIT and RPS: Options for a Harmonized Community Framework, 32 enerGy pol’y, 1405, 1405-14 (2004).14 Nancy Rader & Scott Hempling, The Renewables Portfolio Standard: A Prac-tical Guide (Feb. 2001) (prepared for the National Association of Regulatory Utility Commissioners), available at http://www.hemplinglaw.com/articles/RPS%20FINAL.PDF (last visited Nov. 1, 2007).15 See U.S. Dep’t of Energy, Information Resources: States with Renewable Portfolio Standards, available at http://www.eere.energy.gov/states/maps/renewable_portfolio_states.cfm (last visited Oct. 26, 2007). 16 U.S. Dep’t of Energy, id.17 Wiser, supra note 6.18 int’l enerGy aGency, variability of winD power anD other renewableS: manaGement optionS anD StrateGieS at 20 (2005), available at http://www.iea.org/Textbase/Papers/2005/variability.pdf (last visited Oct. 17, 2007).19 int’l enerGy aGency, id. 20 enernex corporation & the miDweSt inDepenDent SyStem operator, final report—2006 minneSota winD inteGration StuDy (2006), available at http://www.puc.state.mn.us/docs/windrpt_vol%201.pdf  (last visited Oct. 17, 2007).21 Shiva Swaminathan & Rajat K. Sen, review of power quality applicationS of enerGy StoraGe SyStemS. (Sandia National Laboratories 1998), available at http://www.prod.sandia.gov/cgi-bin/techlib/access-control.pl/1998/981513.pdf (last visited Oct. 17, 2007).22 primen. electric power reSearch inStitute, inc. the coSt of power DiStur-banceS to inDuStrial & DiGital economy companieS. report. no. TR-1006274 (Primen. 2001), available at http://www.epri-intelligrid.com/intelligrid/docs/Cost_of_Power_Disturbances_to_Industrial_and_Digital_Technology_ Companies.pdf (last visited Oct. 17, 2007). 23 Alexander Farrell, Hisham Zerriffi & Hadi Dowlatabadi, Energy Infrastruc-ture and Security, 29 ann. rev. of env’t. & reSourceS 421, 421-22 (2004).24 Farrell, id.25 Thomas Homer-Dixon, The Rise of Complex Terrorism, foreiGn pol’y,  Jan./Feb. 2002, at 34, 34-41. 26 B.K. Sovacool, The Power Production Paradox: Revealing the Socio-Techni-cal Impediments to Distributed Generation Technologies. Blacksburg: Virginia Tech, Doctoral Dissertation, Apr. 17, 2006.27 committee on Sci. anD tech. for counterinG terroriSm, nat’l reSearch council, makinG the nation Safer: the role of Science anD technoloGy in counterinG terroriSm 178 (National Academies Press 2002).28 int’l enerGy aGency. DiStributeD Generation in liberalizeD electric-ity marketS at 48  (2002), available at http://www.iea.org/textbase/nppdf/free/2000/distributed2002.pdf (last visited Oct. 17, 2007).29 Alexander Farrell, Hisham Zerriffi & Hadi Dowlatabadi, Energy Infrastruc-ture and Security, 29 ann. rev. of env’t. & reSourceS 421, 438 (2004).30 u.S. Dep’t of enerGy info. aDmin., impactS of a 10-percent renewable portfolio StanDarD (Feb., 2002), available at http://tonto.eia.doe.gov/ FTPROOT/service/sroiaf(2002)03.pdf (last visited Oct. 17, 2007).31 Jonathan Winer, Mon-Fen Hong & Dick Spellman, Renewable Portfolio Standard: Analysis for the State of North Carolina (Mar. 8, 2007).32 Governor’s Renewable Energy Working Group, Considerations regarding a Renewable Portfolio Standard (RPS) Framework for the State of Oregon slide 14 (July 11, 2006) available at http://www.oregon.gov/ENERGY/RENEW/docs/Utility_REWG_presentation_71106.ppt#256,1, (last visited Oct. 17, 2007).33 Mike Shriberg, Clean Energy Testimony, Hearing Before the Michigan State Senate Tech. & Energy Comm., (Jan. 18, 2006), available at http://www.environmentmichigan.org/testimony/new-energy-future/new-energy-future-testimony/renewable-portfolio-standards (last visited Oct. 17, 2007).  34 Ari Reeves & Fredric Becker, renewable enerGy policy proJect, winD enerGy for electric power: a reep iSSue brief (July 2003), available at http://www.repp.org/articles/static/1/binaries/wind%20issue%20brief_FINAL.pdf (last visited Oct. 17, 2007).  35 Power Works, Pacific Winds, The Health Benefits of Altamont Pass Wind Power (2005) available at http://www.powerworksinc.com/healthbenefits.asp (last visited Oct. 17, 2007). 36 Power Works, id. 37 J. Spadaro, L. Langlois & B. Hamilton, Greenhouse Gas Emissions of Elec-tricity Generation Chains—Assessing the Difference, in IAEA bulletin 42 (2000), available at http://www.iaea.org/Publications/Magazines/Bulletin/Bull422/article4.pdf (last visited Oct. 17, 2007).38 Union of Concerned Scientists, Clean Energy Blueprint: A Smarter National Energy Policy for Today and the Future, http://www.ucsusa.org/clean_energy/renewable_energy/page.cfm?pageID=44 (last visited Oct. 17, 2007).39 Modified from Malcolm Griston, available at http://www.publications. parliament.uk/pa/cm200506/cmselect/cmenvaud/584/584we67.gif (last visited Oct. 17, 2007).40 Neil Strachan & Hadi Dowlatabadi, Distributed Generation and Distribution Utilities, 30 enerGy pol’y 649, 660 (2002).1 PewClimate.org, Reporting and Crediting System for Greenhouse Gases, http://www.pewclimate.org/states.cfm?ID=39 (last visited Nov. 1, 2007).2 Reporting and Crediting System for Greenhouse Gases, id.3 See PewClimate.org, Search Case Studies Database, http://pewclimate.org/states.cfm (last visited Nov. 1) (listing California, Colorado, Idaho, and Oregon using search term “adder”). The number of utilities to whom the carbon adder applies varies. Id.4 PewCenter.org, Oregon Carbon Adder, http://www.pewclimate.org/states.cfm?ID=57 (last visited Nov. 1, 2007).5 Oregon Carbon Adder, id.enDnoTes: tranSlatinG State experience into feDeral climate policy continued from page 126 PewCenter.org, California PUC Carbon Adder, http://www.pewclimate.org/states.cfm?ID=54 (last visited Nov. 1, 2007).7 PewCenter.org, Colorado Carbon Adder, http://www.pewclimate.org/states.cfm?ID=56 (last visited Nov. 1, 2007).8 worlD reSourceS inStitute, climate policy in the State laboratory 6 (Aug. 2006), available at http://pdf.wri.org/climate_policy_in_the_state_ laboratory.pdf (last visited Nov. 1, 2007).9 worlD reSourceS inStitute, id. at 11-12. 10 worlD reSourceS inStitute, id. at 21.1 See Daniel Cusick, Bechtel Wins TVA Contract For $2.5B Watts Bar Reactor, e&e newS, Oct. 15, 2007, available at http://www.eenews.net/eenewspm/2007/10/15/4/#4 (last visited Oct. 15, 2007).2 See Nuclear Regulatory Commission’s Reactor Oversight Process: Hearing Before the S. Subcomm. on Clean Air and Nuclear Safety of the S. Comm. on Env’t and Pub. Works, 110th Cong. (2007) (statement of David A. Lochbaum, Director, Nuclear Safety Project, Union of Concerned Scientists) [hereinafter UCS Testimony] (finding that “since 1966, there have been fifty-one (51) out-ages lasting one year or longer at U.S. nuclear power reactors”).enDnoTes: nuclear power continued from page 183 E.g., id. (noting that the NRC intentionally ignored a breach of federal regula-tions prohibiting the unmonitored and uncontrolled release of radioactive air or liquid to the environment at Braidwood nuclear plant in Illinois from 1996 to 2005).4 See, e.g., Examiner.com, Sleeping Guards At Peach Bottom Prompt Investiga-tion, (Oct. 5, 2007), available at http://www.examiner.com/a-972905~ Sleeping_guards_at_Peach_Bottom_prompt_investigation.html (last visited Nov. 13, 2007).

Translating State Experience into
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