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Volume 47, Issue 12 — December 2017


Demand Response Aggregators and the MISO Wholesale Markets: A Survey of State Laws

by Michael Gallagher

Demand response—programs designed to encourage end-users to reduce electricity use during peak periods—has played a large role in contemporary energy markets. This growing market has created a new market actor: demand response aggregators. These aggregators have not enjoyed success in many of the states in the Midcontinent Independent System Operator (MISO): at least 10 of the 15 states prohibit aggregators from directly bidding into MISO wholesale markets, and these prohibitions vary significantly in their rationale. This Article argues that legislatures are in the best position to clarify the role for demand response aggregators in the current regulatory structure. If legislatures do not act, other institutional actors may take action to fill the void: utility commissions could allow aggregators to bid into wholesale markets, or FERC could issue an order overruling the state’s veto. Time will tell how the legal system chooses to keep up with rapid technological developments in this area.

Environmental Law From the Inside: Local Perspective, Local Potential

by Keith Hirokawa

Perception and experience are important to understanding the relevance and effectiveness of how we relate to and regulate our natural surroundings. This Article uses the term “insider” environmental law to distinguish local environmental governance capacity and suggests that local needs should serve more of a driving role in the formulation of environmental law and policy. It first introduces the insider environmental perspective by observing the ways that the environment is experienced, which facilitates an understanding of why ecosystems are regulated differently by different levels of government. Second, it distinguishes the value of insider environmental law from the more traditional understanding of local ecosystem governance as local protectionism. Third, it explores the concept of ecosystem services to show how local perspective can be motivated by an open and honest consideration of the costs of environmental governance. Insider environmental law is concerned with identifying an objective description of environmental quality that is consistent with a real and felt sense of place.

Legal Pathways to Widespread Carbon Capture and Sequestration

by Wendy B. Jacobs and Michael Craig

Despite competing views about climate change policy, the time is ripe to drive carbon capture and sequestration (CCS) forward. National and state investment in and support of CCS are completely consistent with the Donald Trump Administration’s goals to invest in infrastructure projects, continue U.S. reliance on fossil fuels, and create jobs. This Article, excerpted from Michael B. Gerrard & John C. Dernbach, eds., Legal Pathways to Deep Decarbonization in the United States (forthcoming in 2018 from ELI), addresses the use of CCS to achieve significant reductions in emissions of carbon dioxide to the atmosphere by 2050, and explains why its widespread adoption in the United States has not yet occurred. The authors describe the potential of CCS for achieving deep decarbonization of the U.S. power sector, explain the key components of CCS, and identify and recommend several federal and state legal reforms necessary to drive it forward.


The Trump Administration’s First Steps Toward Streamlining Environmental Reviews

by Norman F. Carlin and Kevin J. Ashe

On August 15, 2017, President Donald Trump issued an Executive Order entitled “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects," which seeks to expedite federal review and approval of infrastructure projects by imposing new timelines and procedures, including a two-year deadline for completing reviews under NEPA and issuing permits for major infrastructure projects. While the EO itself is broadly framed and leaves many aspects of implementation to be worked out, subsequent actions by CEQ and DOI have already begun to implement the EO’s directives. This Comment discusses its prospects for implementation.


Recent Developments in Climate Justice

by Rachel Jean-Baptiste, Randall S. Abate, Maria Antonia Tigre, Dr. Patricia Ferreira, and Dr. Wil Burns

Climate justice can be defined generally as addressing the disproportionate burden of climate change impacts on poor and marginalized communities. It seeks to promote more equitable allocation of these burdens at the local, national, and global levels through proactive regulatory initiatives and reactive judicial remedies that draw on international human rights and domestic environmental justice theories. Yet, efforts to define climate justice as a field of inquiry remain elusive and underinclusive. A recent book, Climate Justice: Case Studies in Global and Regional Governance Challenges (ELI Press 2016), seeks to fill that void by providing an overview of the landscape of climate justice from a variety of legal and geographic perspectives. On March 10, 2017, ELI convened the book’s editor and three contributing authors to discuss current developments. In this Dialogue, we present a transcript of the seminar, which has been edited for style, clarity, and space considerations.