Published in the Administrative Law Review
In June 2022, the Supreme Court handed down its landmark decision in West Virginia v. Environmental Protection Agency (EPA), which marked the first time the Court named and expressly relied on the major questions doctrine. This Article surveys how lower federal courts have interpreted West Virginia and applied the major questions doctrine. There is no one major questions doctrine in the lower courts. Judges have taken vastly different approaches to defining and applying the doctrine both within and across circuits. These differences illustrate that many judges may view the doctrine as a little more than a grab bag of factors, which they seem to be choosing from at their discretion. Lower court judges do not appear to be constrained in how they apply the doctrine. In a majority of cases concerning Biden Administration agency actions and executive orders, judges applied the doctrine to reach outcomes that aligned with the political party of their appointing President.
Published in the Columbia Journal of Environmental Law
Natural gas plays an outsized role in the U.S. economy. Under the Natural Gas Act, the Federal Energy Regulatory Commission (FERC or the Commission) is responsible for overseeing the orderly development of interstate natural gas pipelines, which facilitate the transmission of natural gas throughout the country. FERC can approve the pipeline only if it finds that it is required by the “public convenience and necessity.” Although FERC should consider a range of factors to determine whether a pipeline will serve the public interest, in practice, it looks primarily to the contracts between a developer and its customers for the purchase of pipeline capacity. If a developer can demonstrate that there is a party willing to pay to use its pipeline, FERC rarely asks questions and almost always finds “public” need. This pipeline-by-pipeline approach to natural gas transmission build-out leads to the construction of unnecessary, underused pipelines, which in turn increases ratepayer costs and decreases consumer welfare. Climate change further increases the risk that pipelines will become obsolete as cities and states move toward electrification. Relying on economic theory, legal history, and policy analysis, we make the case in this paper—pulished in the Columbia Journal of Environmental Law— for FERC’s adoption of regional gas transmission planning.
The Oil and Gas Industry’s Retreat from the Broad Federal Permitting Authority It Long Embraced
What's the function of oil and gas permitting agencies? Despite broad statutory grants to federal agencies, oil and gas companies increasingly argue that the role of those agencies is to promote development regardless of whether it is socially desirable. But this “Narrow Reinterpretation,” in addition to lacking textual support, is at odds with longstanding practice. What changed? Not the governing statutes, at least not in pertinent part. But the energy sector has: renewable sources have replaced coal as the primary competitors to oil and gas.
Extreme weather poses a growing threat to electrical grid stability. On-site battery storage connected to solar power —known as a solar-plus-storage system—can buffer the impact. Despite its crucial benefits, the widespread adoption of this technology is hindered by its high costs. This study examines the impact of recent salient events—namely, preemptive power shutoffs to prevent wildfires, or Public Safety Power Shutoffs (PSPSs)—on residential solar-plus-storage adoption. I demonstrate that while communities at risk of wildfires lacked proactive investments before wildfire seasons, prolonged PSPSs increased solar-plus-storage adoption during the subsequent two months. This increased storage uptake can be attributed to heightened awareness of the need for backup power. Additionally, households’ choices between purchasing and leasing options were influenced by latent wildfire hazards and education levels. These findings highlight the role of risk awareness in promoting storage adoption and underscore the potential for using public information to enhance wildfire preparedness.
The devastating 2021 blackout in Texas, among others, has highlighted the need to reform electricity markets to make them resilient to extreme weather events. In this paper, we review related efforts by system planners and operators within electricity market contexts, focusing on Europe and the United States, and we analyze possible reforms to electricity capacity markets. To account for extreme weather events, capacity requirements and markets, along with other regulatory measures throughout the electricity and fuel supply chains, should be modified. First, capacity requirements must be tailored to the specific severe weather failure modes applicable to a given power system to achieve policymakers' reliability and resiliency objectives: reducing the frequency, magnitude and duration of blackouts. Second, all capacity requirements should be cost-effective and integrated with other non-capacity resources and requirements, such as transmission, distribution and other infrastructure systems. Third, for a capacity market to produce the desired efficiency benefits, the product (capacity) must be well-defined and backed by sufficient credit and other policies to ensure providers have sufficient incentives to perform when called.
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