Necessary but insufficient: State renewable portfolio standards and climate change policies

Environment

Volumn 49, Issue 6, 2007, Pages 20-31

  Sovacool, Benjamin K ^a   Barkenbus, Jack N ^b  

^a VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY   (United States)

^b VANDERBILT UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38949123055     PISSN: 00139157     EISSN: None     Source Type: Journal    
DOI: 10.3200/ENVT.49.6.20-31     Document Type: Review

References (60)

1. G. Parker, "Blair Backs EU Renewable Energy Targets," Financial Times, 28 February 2007, 3; also available at http://www.ft.com/cms/s/21c402d0-c752-11db-8078-000b5df10621.html.
2. REN21, Renewables Global Status Report: 2006 Update (Paris and Washington, DC: REN21 Secretariat and WorldWatch Institute, 2006).
3. J. H. Adler, "When Is Two a Crowd? The Impact of Federal Action on State Environmental Regulation," The Harvard Environmental Law Review 31, no. 1 (2007): 67-114.
4. K. H. Engel, "Harnessing the Benefits of Dynamic Federalism in Environmental Law," Emory Law Journal 56, no. 1 (2006): 179.
5. J. H. Adler, "Jurisdictional Mismatch in Environmental Federalism," New York University Environmental Law Journal 14, no. 1 (2005): 130-45.
6. Ibid, page 167.
7. J. H. Adler, "Let Fifty Flowers Bloom: Transforming the States into Laboratories of Environmental Policy," The Federalism Project/American Enterprise Institute, January 2002, available at http://ssrn.com/abstract= 295424.
8. Engel, note 4 above, page 160. For more on what states are doing in terms of human rights and international treaties, see S. L. Lozner, "Diffusion of Local Regulatory Innovations: The San Francisco CEDAW Ordinance and the New York City Human Rights Initiative," Columbia Law Review 104, no. 3 (2004): 768-70;
9. G. Burroughs, "Implementation of Human Rights by State and Local Governments," New York University Review of Law and Social Change 30, no. 3 (2006): 411-22.
10. For what states are doing in terms of health, see M. J. Horvick, "Examining the Underlying Purposes of Municipal and Statewide Smoking Bans," Indiana Law Journal 80, no. 3 (2005): 923-50;
11. and B. Courtney, "Is Obesity Really the Next Tobacco? Lessons Learned from Tobacco for Obesity Litigation," Annals of Health Law 15, no. 1 (2006): 61-67.
12. For example, hidden costs (often referred to as "negative externalities"), such as the need to secure foreign imports of fuel, environmental damage from air and water emissions, medical expenses associated with air pollution and transportation accidents, and catastrophic global climate change, are not typically reflected in the rates we pay for electricity. A majority of the federal budget for energy research and development over the past 50 years has also gone to conventional fossil fuel and nuclear industries and not toward renewable energy technologies. From 1948 to 1998, for instance, roughly 80 percent of U.S. Department of Energy appropriations for research and development have gone to nuclear and fossil fuel technologies. And since everyone benefits from the environmental advantages of renewable energy, private companies that invest millions of dollars in researching and developing clean energy technologies are often unable to recover the full profit of their investments. Inevitably, the market allows some consumers to be "free riders," benefiting from the investments of others without paying for them. For more, see N. Nayak, Redirecting America's Energy: The Economic and Consumer Benefits of Clean Energy Policies (Washington, DC: Public Interest Research Group, 2005) 11;
13. C. Levesque, "What Is the Percentage of Federal Subsidies Allotted for Wind Power?" Renewable Energy Access, 10 April 2007, http://www.renewableenergyaccess.com/rea/news/story?id=48070;
14. and B. Sovacool and C. Cooper, "Big Is Beautiful: The Case for Federal Leadership on a National Portfolio Standard," Electricity Journal 20, no. 4 (May 2007): 48-61.
15. Engel, note 4 above, page 160.
16. K. H. Engel and S. R. Saleska, "Subglobal Regulation of the Global Commons: The Case of Climate Change," Ecology Law Quarterly, 32, no. 2 (2005): 183-233.
17. Sovacool and Cooper, note 9 above.
18. Pew Center on Global Climate Change, Climate Change Activities in the United States: 2004 Update (Washington, DC: Pew Center on Global Climate Change, 2004), 4.
19. Justice Brandeis stated, "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (Dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 262, 52 S. Ct. 371, 76 L.Ed. 747 (1932).)
20. For excellent summaries of these advantages, see T. D. Peterson and A. Z. Rose, "Reducing Conflicts Between Climate Policy and Energy Policy in the U.S.: The Important Role of the States," Energy Policy 34, no. 5 (2006): 619-31;
21. and K. L. Doran, "Can the U.S. Achieve a Sustainable Energy Economy from the Bottom-Up? An Assessment of State Sustainable Energy Initiatives," Vermont Journal of Environmental Law 7, no. 1 (2005-2006): 1-44.
22. In 1985, Iowa passed legislation to "encourage the development of alternate energy production facilities and small hydro facilities in order to conserve our finite and expensive energy resources and to provide for their most cost effective use." The law mandated that utilities enter into power purchase agreements with renewable energy producers and set the upper limit on aggregate purchases of renewable energy at 105 megawatts (MW). In 1994, Minnesota passed similar legislation. The first state to actually use the term "RPS," however, was California, in legislation proposed (but ultimately defeated) in 1995. See J. W. Moeller, "Of Credits and Quotas: Federal Tax Incentives for Renewable Resources, State Renewable Portfolio Standards, and the Evolution of Proposals for a Federal Renewable Portfolio Standard," Fordham Environmental Law Journal 15, no. 1 (2004): 91;
23. and V. Lauber, "REFIT and RPS: Options for a Harmonised Community Framework," Energy Policy 32, no. 12 (2004): 1405-14.
24. This does not include Illinois, which set a voluntary standard of 8 percent by 2013, or Vermont, which mandates that all load growth must be satisfied by renewable energy. Also excluded is New Hampshire, which passed an RPS on 26 April 2007, and Oregon, where a bill requiring 25 percent renewables by 2025 had passed both houses of the legislature as of the end of May 2007. Neither of these two bills had been signed into law at the time this article went to press.
25. See J. J. Fialka, "States Power Renewable-Energy Push" Wall Street Journal, 14 June 2006;
26. T. Petersik, State Renewable Energy Requirements and Goals: Status Through 2003 (Washington, DC: U.S. Department of Energy, 2004), available at http://www.eia.doe.gov/oiaf/analysispaper/rps/index.html;
27. and U.S. Government Accountability Office (GAO), Department of Energy: Key Challenges Remain for Developing and Deploying Advanced Energy Technologies to Meet Future Needs, GAO-07-106 (Washington, DC, 2006), 61-62.
28. For an excellent overview of state renewable portfolio standards (RPS) programs, see Fialka, ibid.; Petersik, ibid.; B. G. Rabe, Race to the Top: The Expanding Role of U.S. State Renewable Portfolio Standards (Arlington, VA: Pew Center on Global Climate Change, 2006);
29. National Renewable Energy Laboratory, Power Technologies Energy Data Book, NREL/TP-620-39728 (Golden, CO, 2006), available at http://www.nrel.gov/analysis/power_databook/, 94-96;
30. and R. Wiser, C. Namovicz, M. Gielecki, and R. Smith, "The Experience With Renewable Portfolio Standards in the United States," Electricity Journal 20, no. 4 (May 2007): 8-20.
31. See Massachusetts Division of Energy Resources, Renewable Portfolio Standard: Policy Analysis, 16 December 2005, available at http://www.mass.gov/doer/rps/rps-2003annual-rpt.pdf;
32. U.S. Department of Energy, "State Renewable Portfolio Standards and Purchase Requirements," Transportation Handbook, updated 2006, available at http://cta.orn1.gov/bedb/biopower/ State_RPS_and_Purchase_Requirements.xls;
33. and National Renewable Energy Laboratory, Power Technologies Energy Data Book, 2006, available at http://www.nrel.gov/analysis/power_databook/ chapter3.html.
34. C. Flavin, J. L. Sawin, J. Podesta, A. U. Cohen, and B. Hendricks, American Energy: The Renewable Path to Energy Security (Washington, DC: Worldwatch Institute & the Center for American Progress, September 2006);
35. and N. Rader and S. Hempling, The Renewables Portfolio Standard: A Practical Guide (Washington, DC: National Association of Regulatory Utility Commissioners, 2001).
36. D. A. Fine and D. N. Wang, "Private Equity and the Repeal of PUHCA," Electric Light & Power, November 2005, available at http://uaelp.pennnet.com/articles/article_display.cfm?article_id=242459.
37. Maine v. Taylor, 477 U.S. 131 (1986).
38. S. Hempling and N. Rader, State Implementation of Renewables Portfolio Standards: A Review of Federal Law Issues (Washington, DC: American Wind Energy Association, 1996), 6.
39. See K. H. Engel, "The Dormant Commerce Clause Threat to Market-Based Environmental Regulation: The Case of Electricity Deregulation," Ecology Law Quarterly 26, no. 2 (1999): 243-349;
40. and S. Ferrey, "Renewable Orphans: Adopting Legal Renewable Standards at the State Level," Electricity Journal 19, no. 2 (2006): 52-61.
41. N. A. Rader and W. P. Short III, "Competitive Retail Markets: Tenuous Ground for Renewable Energy," Electricity Journal 11, no. 3 (1998): 72.
42. U.S. Energy Information Administration (EIA), Annual Energy Outlook 2006: With Projections to 2030 (Washington, DC: U.S. Department of Energy, 2006), 81.
43. C. Carlarne, "Climate Change Policies an Ocean Apart: EU & US Climate Change Policies Compared," Penn State Environmental Law Review 14, no. 3 (2006): 472.
44. Doran, note 15 above.
45. T. D. Petersen, "The Evolution of State Climate Change Policy in the United States: Lessons Learned and New Directions," Widener Law Journal 14, no. 1 (2004):81-116.
46. Peterson and Rose, note 15 above, page 620.
47. "Doubts Cloud Coal-Plant Plan," Deseret News, 7 February 2007.
48. R. N. Stavins, "Policy Instruments for Climate Change: How Can National Governments Address a Global Problem?" The University of Chicago Legal Forum (1997): 293-328.
49. EIA, note 27 above.
50. EIA, note 27 above.
51. Engel, note 4 above, page 185.
52. Engel, note 4 above, page 185.
53. B. G. Rabe, M. Román, and A. G. Dobelis, "State Competition as a Source Driving Climate Change Mitigation," New York University Environmental Law Journal 14, no. 1 (2005): 45.
54. Engel, note 4 above, page 187.
55. U.S. Department of Labor, "Minimum Wage Laws in the U.S.," January 2007, available at http://www.dol.gov/esa/minwage/america.htm.
56. See W. W. Buzbee, "Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction," Emory University School of Law Research Paper Series No. 07-10, available at http://papers.ssm.com/sol3/papers.cfm? abstract_id=975273;
57. and L. A. Baker and E. A. Young, "Federalism and the Double Standard of Judicial Review," Duke Law Journal 51, no. 1 (2001):158.
58. Ibid.
59. M. Jaccard, "Renewable Portfolio Standard," in C. Cleveland, ed., Encyclopedia of Energy, Volume 5 (New York: Elsevier, 2004), 413-21.
60. Representative Tom Udall (D-NM) and Senator Jeff Bingaman (D-NM) have introduced RPS legislation in the current Congress, calling for renewable levels of 20 percent and 15 percent respectively by 2020. Five competing climate change bills have been introduced in the Senate, and the House of Representatives also has a number of competing bills and has created a Select Committee on Energy Independence and Climate Change to inform House committees having oversight of the issue as to available policy options.