Scientific breakthroughs in design technology present today’s wind industry with unprecedented opportunities. Innovative turbines, taller and with blades larger than those of any utility-scale turbines currently installed domestically, are opening up regions low in wind resources, such as the Southeastern United States, to large...
The fight over federal control of western land is on display in a large, remote area of southeastern Utah. On one side is a coalition of Native American tribes, supported by conservation groups, urging the designation of a new national monument to protect 1.9 million acres of land including the culturally important area of Bears Ears. On the other side are conservative federal, state, and county lawmakers seeking to advance a recently unveiled public lands bill titled the Public Lands Intuitive (“PLI”). The proposed bill would protect 1.2 million acres of the Bears Ears area while also opening land for energy development and a wilderness area. At one time, both sides where hopeful that the PLI could serve as a grand compromise, but the proposed bill, which involved years of meetings and planning, was not what environmental and tribal groups envisioned. Instead, these groups now call the bill a “public land giveaway.” The causes of the disagreement between the two sides are historical and structural, and after years of optimism, it seems unlikely that an agreement will be reached that will satisfy both sides. At this point, the probable outcome seems to be President Obama designating a new national monument in the Bears Ears area. If the Bears Ears area is indeed designated as a national monument, the designation is sure to ignite a firestorm of controversy in a state that has spent the last twenty years fighting against federal control of public lands.
Decreasing Building-Related Emissions in New York City: Attempts to Circumvent the Split Incentive Problem to Encourage Energy Efficiency Retrofits
In an effort to mitigate the effects of climate change, New York City Mayor Bill de Blasio initiated the “80x50” program, committing the City to the goal of reducing its greenhouse gas (“GHG”) emissions by eighty percent, from a 2005 baseline, by the year 2050. A cornerstone of the program is reducing emissions from residential, commercial, and municipally-owned buildings in the City. Retrofitting these buildings to increase their energy efficiency is required in order to achieve 80x50’s reduction goals.
While the City can exercise its considerable regulatory authority over land use and building design to reduce building-related emissions, significant economic barriers have historically discouraged private building owners from undertaking energy efficiency retrofits. Foremost among them is the split incentive problem, which is a specific type of market failure that occurs when benefits of a transaction pass on to someone other than the party paying the cost. While the City has pursued various avenues for addressing the split incentive problem to facilitate retrofits in private and commercial buildings, it is unclear whether present government subsidies are sufficient to incentivize commercial or residential building owners to undertake deep energy retrofits voluntarily. Given that the City is limited in its ability to influence state and federal legislatures to increase funding for efficiency programs, a hybridized approach involving municipal regulation, incentives programs, and financing options is likely required to achieve 80x50’s GHG reduction targets.
Technology, Curtailment, and Transmission: Innovations and Challenges Facing Today’s U.S. Wind Energy
Scientific breakthroughs in design technology present today’s wind industry with unprecedented opportunities. Innovative turbines, taller and with blades larger than those of any utility-scale turbines currently installed domestically, are opening up regions low in wind resources, such as the Southeastern United States, to large wind farm development.
The issues raised as a result of the wind industry’s focus on building wind projects in the Southeast highlight the transformation that needs to occur regarding how the United States thinks about and approaches renewable energy. Steps need to be taken promptly to smooth the renewable energy generation and delivery process, as well as surmount challenges arising from technical innovation, curtailment, and energy conveyance. These changes can occur if we, as a country, devise creative solutions that will serve as a bridge between our current energy landscape and our envisioned renewable energy future. Failure to do so will adversely impact the domestic wind industry as well as impede the potential for a wide-scale increase in energy generated from renewable sources, in both the short and long terms
The United States has three unincorporated territories in the Pacific—American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (“CNMI”). The effects of climate change imminently threaten all three of these territories. In American Samoa, these threats are not only severe but also create cascading risk impacts. Rising sea levels threaten to exacerbate coastal erosion and subsidence, damage vital transportation infrastructure, and destroy homes. Rising seas also pose a threat to water and food security, as seawater intrusion into freshwater aquifers decreases the quantity of clean water available for drinking and irrigation. Threats to important reef ecosystems by ocean acidification impose yet further burdens on food and economic security. Though the federal government has increasingly provided financial and technical support for climate adaptation in American Samoa and its other Pacific Territories, it has done little to empower these territories to develop their own comprehensive plans for resilience in the face of climate change.
On October 8th, 2015, New York Governor Andrew Cuomo and former Vice President Al Gore met at Columbia University to deliver a much anticipated announcement: the state of New York was to become a signatory of the Under 2 Memorandum of Understanding (“Under 2 MOU” or “MOU”), which aims to prevent the average global temperature from rising more than two degrees Celsius above pre-industrial levels, and to limit greenhouse gas (“GHG”) emissions to below two metric tons per capita by 2050. Signed on May 19, 2015, the agreement was intended to provoke discussion of climate change issues prior to the United Nations Climate Change Conference in Paris scheduled for December, 2015. The goal of the Under 2 MOU is to unite governments across the globe that are willing to make substantial changes in the face of global warming.
A Divided Court Decides the Future of Demand Response: Oral Argument of FERC v. Electric Power Supply Association
In May 2014, the D.C. Circuit held, by a vote of 2-1, that the Federal Energy Regulatory Commission’s (“FERC”) Order 745 governing demand response resources in the wholesale energy market exceeded FERC’s authority under the Federal Power Act and was arbitrary and capricious under the Administrative Procedure Act. FERC, alongside three aggregators of electricity consumers and two parties representing customers of wholesale market operators, petitioned for certiorari. I attended oral argument on October 14, 2015; having seen the attorneys argue and the Justices react to their arguments, I gained a unique perspective on this case. This Field Report will present a brief background of the relevant facts and law, analyze the arguments presented in court, and predict how the U.S. Supreme Court will decide the case.
On Thin Ice: Will the International Court of Justice’s Ruling in Australia v. Japan: New Zealand Intervening End Japan’s Lethal Whaling in the Antarctic?
In March 2014, the International Court of Justice (the “ICJ”) declared that Japan’s whaling activity in the Antarctic did not satisfy the scientific exemption to a global whaling moratorium and ordered Japan to cease its current operations. Japan complied with the ICJ’s ruling and ended its expedition for that year; however, it also revealed a new scientific research program in November 2014 to resume whaling in the Antarctic. The International Whaling Commission (“IWC”) in June 2015 rejected Japan’s new proposal, citing that the planned lethal research continues to violate international regulations.
It is not clear how Japan will respond to this recent rejection. The best-case scenario would be for Japan not to conduct any lethal whaling in the Antarctic until such whaling is approved by the IWC. However, because international whaling agreements are self-regulating, neither the ICJ nor other countries will directly be able to stop Japan from administering its new program.
Such a result does not mean that the ICJ ruling was futile. Although the ICJ lacks official mechanisms with which to enforce its opinions, the Court has been shown to have strong unofficial methods of enforcement. In prior disputes, ICJ opinions have successfully incited political action toward legal compliance. Even if continued external political pressure is insufficient to bring about Japan’s total abstention from lethal whaling, the ICJ’s ruling echoes global disapproval of the whaling trade. On the other hand, if internal changes eradicate Japan’s market for whale meat, Japan’s government may be forced to reconsider its lethal whaling practices.
Long-heralded as a "green" city with an almost-mythical quality of life, Portland, Oregon, unsurprisingly, is inscribing concerns over climate change into the very fabric of its land use planning. By 2035, city planners hope that eighty percent of Portlanders will live within a "complete neighborhood," defined as one in which all essential goods and services are available within a twenty minute walk from a resident's home. Planning documents expressly cite concerns over GHG emissions as a rationale for this vision. One set of seemingly innocuous policies with the potential to play an outsized role in the actualization of the complete neighborhood are minimum off-street parking requirements, and, as a corollary, a regime for allocating on-street parking space. When buildings are pushed further apart to make room for parking lots, the feasibility of twenty-minute walkability in the neighborhood decreases. More fundamentally, parking is the "terminal" of the very car-based transportation system whose negative environmental effects the complete neighborhood attempts to mitigate.
Man-made earthquakes have followed the hydraulic fracturing boom into the twenty-first century. In recent years, operators have hydraulically fractured more than 100,000 wells in the U.S. In tandem with the current increase in unconventional oil and gas production in the U.S., the number of earthquakes in the central and eastern parts of the country has increased dramatically: more than 300 earthquakes above a magnitude 3.0 occurred in the three years from 2010 to 2012, compared with an average rate of 21 events per year from 1967 to 2000. Although hydraulic fracturing stimulation operations routinely produce earthquakes below magnitude 2, so-called "microearthquakes" that are too small to be felt, these operations pose a very low risk of inducing larger, destructive earthquakes. To date, earthquakes induced by hydraulic fracturing in Oklahoma, Texas, Canada, and the United Kingdom, though large enough to be felt at the surface, have not posed serious risk.
On September 16, 2014, the federal Environmental Protection Agency ("EPA") rejected the vast majority of a low-cost loan request from the administration of New York State Governor Andrew Cuomo to help finance a replacement for the aging Tappan Zee Bridge across the Hudson River approximately 25 miles north of midtown Manhattan. The decision was hailed by environmental advocates who had argued that the federal funding, authorized by a 1987 amendment to the landmark Clean Water Act ("CWA"), should be reserved for "genuine environmentally beneficial projects" such as those financing municipal wastewater facilities and improving water quality. The federal rejection of $481.8 million in funding was also notable in that the full $510.9 million request had been approved by the agency responsible for managing the revolving loan fund, the New York State Environmental Facilities Corporation ("EFC").
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–Technology, Curtailment, and Transmission: Innovations and Challenges Facing Today’s U.S. Wind Energy
11 December 2015 12:00 am
On October 8th, 2015, New York Governor Andrew Cuomo and former Vice President Al Gore met at Columbia University to deliver a much anticipated announcement: the state of New York was to become a signatory of the Under 2 Memorandum of Understanding (“Under 2 MOU” or “MOU”), which aims to prevent the average...
29 February 2016 12:00 am
The United States has three unincorporated territories in the Pacific—American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (“CNMI”). The effects of climate change imminently threaten all three of these territories. In American Samoa, these threats are not only severe but also create cascading...
+A Divided Court Decides the Future of Demand Response: Oral Argument of FERC v. Electric Power Supply Association
05 December 2015 12:00 am
In May 2014, the D.C. Circuit held, by a vote of 2-1, that the Federal Energy Regulatory Commission’s (“FERC”) Order 745 governing demand response resources in the wholesale energy market exceeded FERC’s authority under the Federal Power Act and was arbitrary and capricious under the Administrative Procedure Act. FERC,...