The law of clean energy : efficiency and renewables / Michael B. Gerrard, editor.
2011
KF2120 .L39 2011 (Map It)
Available at Cellar
Formats
| Format | |
|---|---|
| BibTeX | |
| MARCXML | |
| TextMARC | |
| MARC | |
| DublinCore | |
| EndNote | |
| NLM | |
| RefWorks | |
| RIS |
Items
Details
Title
The law of clean energy : efficiency and renewables / Michael B. Gerrard, editor.
Published
Chicago : American Bar Association, Section of Environment, Energy, and Resources, [2011]
Copyright
©2011
Call Number
KF2120 .L39 2011
ISBN
9781614380085 (pbk. : alk. paper)
1614380082 (pbk. : alk. paper)
1614380082 (pbk. : alk. paper)
Description
xlii, 642 pages ; 26 cm
System Control No.
(OCoLC)725827728
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Gift
Purchased from the income of the Beinecke Fund
Added Author
Gift
The Arthur W. Diamond Law Library
Purchased from the income of the Beinecke Fund
Table of Contents
Preface and Acknowledgments
xxi
About the Editor
xxiii
About the Authors
xxv
List of Abbreviations
xxxvii
ch. One
Introduction and Overview / Michael B. Gerrard
1
Purpose and Plan of the Book
2
Energy Use and Efficiency
3
Patterns of Energy Use
3
Improving Energy Efficiency
6
Impediments to Energy Efficiency
7
Sources of Energy
8
Patterns of Energy Sources
8
Impediments to Growth in Renewables
11
Legal Techniques to Improve Efficiency and Increase Renewables
14
Techniques for Both Efficiency and Renewables
14
Techniques for Efficiency and Conservation
16
Techniques for Renewables
17
Role of Efficiency and Renewables in Combating Climate Change
18
pt. I
Laws Governing Efficiency, Renewables, and Siting
ch. Two
Federal Energy Efficiency and Conservation Laws / Marianne Tyrrell
25
Laws and Policies That Affect Energy Efficiency and Conservation
27
Overview
27
Conservation and Efficiency Laws and Policies for Specific Economic Sectors
30
Laws and Policies Fostering Energy Inefficiency and Energy Consumption
38
Proposed Climate Change and Energy Conservation Legislation
39
Cap-and-Trade Legislation
39
Supplemental Energy Efficiency Measures
41
International and Comparative Law Perspective
43
Energy Efficiency and the Convention on Climate Change
43
European Union
45
Conclusion
47
ch. Three
State and Municipal Energy Efficiency Laws / John K. Harting
57
Introduction
57
Energy Efficiency Tax Incentives
58
Personal Energy Efficiency Tax Incentives
59
Corporate Energy Efficiency Tax Incentives
59
Energy Efficiency-Based Sales Taxes
60
Energy Efficiency-Based Property Taxes
60
Rebates for Purchasing Energy-Efficient Appliances
61
Utility Cost and Revenue Recovery for Energy Efficiency Expenditures
62
Shareholder Incentives for Electric Utilities to Pursue Energy Efficiency
63
Energy Efficiency Resource Standards
64
Energy-Efficient Building Codes
65
Energy Audit Requirements
67
State Appliance Efficiency Standards
67
State Appliance Efficiency Regulations and Preemption
68
Current State Efforts to Set Appliance Efficiency Standards
69
Preemption Litigation
70
Conclusion
71
ch. Four
Renewables Mandates and Goals / Joshua P. Fershee
77
Introduction
77
Renewable Portfolio Standards
77
Overview
77
State-Level RPSs
80
Federal RPS
83
Current State of Renewable Energy Credits and Certificates and Related Markets
87
Conclusion
89
ch. Five
Facility Siting and Permitting / Patricia E. Salkin
95
Introduction
95
The National Environmental Policy Act and State Environmental Review Laws
95
Specific Environmental Issues
97
Protected Areas
97
Protected Species and Wildlife Impacts
98
Visual Impacts
99
Cultural and Historic Impacts
100
Public Participation Issues
101
Land Acquisition
102
Eminent Domain
102
Offshore Siting Issues
102
Brownfields
102
Federal Preemption of Siting and Permitting
102
State Siting Processes
103
Local Zoning and Building Codes
104
Solar
104
Wind
104
Geothermal
105
Conclusion
105
pt. II
Financing, Pricing, and Taxation
ch. Six
Government Purchasing of Efficient Products and Renewable Energy / Stephen E. Ruscus
117
Basic Principles of Government Procurement
117
Primary Procurement Statutes and Regulations
118
Competitive Bidding
119
Bid Protests
119
Types of Contracts and Associated Contract Risks
120
Federal Supply Schedule Contracts
121
Terminations for Convenience
122
Long-Term Contracts for Facilities and Infrastructure
122
Policy Tools for Implementing Preferences for Energy-Efficient Products
124
Federal Efforts to Promote Use and Purchase of Energy-Efficient Products
125
Federal Procurement Policy for Energy-Efficient Products
125
The Energy Policy Act of 2005 and Implementing Regulations
126
Executive Order 13514 and Procurement
126
FEMP-Designated and Energy Star Products
127
Federal Compliance with Energy-Efficient Procurement Laws and Regulations
128
Federal Building Energy Management and Greening Federal Buildings
128
Section 109 of the Energy Policy Act of 2005
128
Federal Leadership in High Performance and Sustainable Buildings Memorandum
129
DOE Regulations for New Federal Building Construction
129
Energy Independence and Security Act of 2007
130
The American Recovery and Reinvestment Act
130
Executive Order 13514 and Federal Buildings
130
Federal Efforts to Decrease Energy Consumption and Increase Renewable Energy Use
131
Efforts to Decrease Energy Consumption
131
Efforts to Increase Renewable Energy Use
133
Financing Mechanisms Available to Achieve Federal Energy Goals
134
Direct Appropriations
134
Energy Savings Performance Contracts
134
Utility Energy Services Contracts
135
Management of the Federal Fleet
136
Alternative Fuel Vehicles
136
Alternative Fuels
136
DOD Efforts to Reduce Vehicle Energy Consumption
136
Greening the Federal Supply Chain
137
A Brief Word about State and Local Governments
138
ch. Seven
Taxation / E. Margaret Rowe
145
Introduction
145
Federal Business Tax Incentives for Renewable Energy
146
Electricity Production Tax Credits---I.R.C. [§] 45
147
Investment Tax Credits---I.R.C. [§] 48
149
Federal Tax Incentives for Energy Conservation
149
Credit for Advanced Energy Property---I.R.C. [§] 48C
150
Energy Efficient Appliance Credit---I.R.C. [§] 45M
150
Energy Efficient Home Credit---I.R.C. [§] 45L
151
Energy Research Credit---I.R.C. [§] 41
151
Energy Efficient Commercial Buildings Deduction---I.R.C. [§] 179D
151
Qualified Energy Conservation Bonds---I.R.C. [§] 54D
151
Federal Tax Incentives for Consumers
151
Nonbusiness Energy Property Credit---I.R.C. [§] 25C
152
Residential Energy Efficiency Property Credit---I.R.C. [§] 25D
152
Alternative Motor Vehicle Credit---I.R.C. [§] 30B
152
Plug-In Electric Drive Motor Vehicle Credit---I.R.C. [§] 30D
153
Electric Drive Low-Speed Vehicle Credit---I.R.C. [§] 30
154
Federal Tax Incentives for Alternative Fuels---I.R.C. [§][§] 40, 40A, 6426, 6427(e)
154
State and Local Incentive Programs
154
Renewable Energy
155
Personal Tax Incentives
155
Corporate Tax Incentives
155
Local Property Tax Incentives
156
Sales and Use Tax Incentives
156
Tax-Exempt Utility Incentives
156
Vehicle Purchase Incentives
156
Policy Efficacy
157
Best Practices
157
The Case of Oregon's BETC/RETC
158
The Other Side of the Coin: Excise Tax on Wind Energy Development
160
Conclusion
160
ch. Eight
Government Nontax Incentives for Clean Energy / John A. Herrick
169
Federal Incentive Programs
169
Types of Incentives
169
Financial Assistance for Clean Energy
169
U.S. Department of Energy Cooperative Agreements
170
DOE Technology Investment Agreements
171
Federal Loan Guarantees
172
Rights to Intellectual Property Under Federal Incentive Programs
173
Incentive Programs for the Development and Commercialization of Renewable Energy Technologies
174
Technology-Specific DOE Incentive Programs
174
Power Marketing Incentive Programs for Transmission
178
DOE National Laboratory Assistance and Partnerships
179
U.S. Department of Agriculture Financial Assistance Programs for Renewable Energy Generation
180
Bureau of Land Management Incentives
181
Incentive Programs for the Development and Commercialization of Renewable Transportation Fuels
182
DOE---Office of Biomass
182
DOE Vehicle Technology Program Office
183
DOE/USDA Biomass Research and Development Initiative
183
USD A Bioenergy Program for Advanced Biofuels
183
Energy Efficiency Financial Incentive Programs
184
DOE Weatherization Assistance Program
184
DOE's State Energy Program
184
DOE's Energy Efficiency and Conservation Block Grant Program
185
Energy Efficiency Programs for American Energy-Intensive Industries
186
DOE's Building Efficiency Technology Program
186
Federal Energy Savings Performance Contracting
186
Federal Housing Authority Energy Efficient Mortgage Program
187
Federal Loan Guarantee Programs for Clean Energy Projects
188
Title XVII Loan Guarantee Program---New and Innovative Clean Energy Technology Projects
188
Recovery Act Loan Guarantee Program
189
Advanced Technology Vehicles Manufacturing Loan Program
190
Department of Agriculture Loan Guarantee Programs for Biofuels
190
Other Federal Financial Incentives for the Development of Clean Energy Technologies
191
Clean Renewable Energy Bonds (CREBs)
191
Qualified Energy Conservation Bonds
194
Carbon Credits And State Incentive Programs
195
Carbon Credits
195
State Incentives
196
Types of Incentives
196
Clean Energy Funds and System Benefit Charges
197
Incentives Directly from Utilities
198
ch. Nine
Sale of Electricity / Steven Ferrey
217
Introduction: The Pricing of Electricity and a Look at the Future
217
Decoupling Consumption and Reward
219
Energy Efficiency, Demand-Side Management, and Response
222
Time-Sensitive Pricing for Electricity
225
Submetering
226
Renewable Power and the New Grid
228
Renewable Energy Feed-In Tariffs
228
Net Metering of Renewable Energy
232
Power Purchase Agreements
233
Green Energy Marketing
234
ch. Ten
Financing Structures and Transactions / Braden W. Penhoet
241
Introduction
241
Early or "Seed" Stage Investments
242
Early Private Funding
243
Early Private Investment Structures
244
Early Public Funding
245
Intellectual Property Transactions
246
Growth-Phase Equity and Venture Capital Investment
247
Structure of Venture Capital Investments
248
Venture Debt
250
Public Equity Offerings
251
Initial Public Offerings---Business and Administrative Matters
251
Initial Public Offerings---Legal Issues
252
Subsequent Public Offerings
253
Corporate Debt
253
Loan Transactions
253
Corporate Bonds
254
Project Finance Structures
255
Summary and Conclusions
257
pt. III
Energy Use Sectors
ch. Eleven
Conservation of Energy in Agriculture and Forestry / A. Bryan Endres
263
2008 Farm Bill and On-Farm Energy Audits
263
Recent History and Future Options for Energy Reduction in Farming
263
USDA Rural Energy for America Program
264
Farm Energy Efficiency Audit Standards
265
Energy Conservation Efforts in Forestry
265
Energy-Reduction Initiatives in Food Manufacturing That Impact the Farm
266
Legal Aspects of On-Farm Energy Production
267
Solar Power (Photovoltaic)
267
Biomass
269
Wind Power
269
On-Farm Energy Production: Anaerobic Digesters
270
Power Potential
271
Outlook for the Future
271
Reducing Embedded Energy Costs in Inputs and Equipment
272
ch. Twelve
Appliances, Lighting, Computers, Data Centers, and Computer Servers / John A. Hodges
277
The Framework for the Federal Appliance Efficiency Program
277
History of the Federal Appliance Efficiency Program
278
DOE Appliance Efficiency Rulemaking
281
Standby Power
283
Exceptions and Waivers
284
Enforcement
284
Energy Star
286
Lighting
288
Computers, Monitors, Data Centers, and Computer Servers
290
Computers
290
Monitors
290
Data Centers and Computer Servers
291
State Involvement in Appliance Energy Efficiency
292
Full-Fuel-Cycle Measurements
292
International Involvement in Appliance Efficiency
293
Conclusion
294
ch. Thirteen
Buildings / J. Cullen Howe
301
Introduction
301
Government Efforts to Improve Energy Efficiency in Buildings
301
Federal Efforts to Promote Building Energy Efficiency
302
Selected State Efforts to Promote Building Energy Efficiency
305
Selected Municipal Efforts to Increase Building Energy Efficiency
307
Building Energy Codes
308
Federal Actions: The Energy Policy Act of 1992/IECC
308
State Energy Codes
309
Model Energy Codes
309
Voluntary and Consensus-Based Building Energy and Green Building Rating Standards
310
Leadership in Energy and Environmental Design (LEED)
310
EPA's Energy Star Program
312
Other Green Building Rating Systems
313
Building Retrofitting and Weatherization
314
Governmental and Nonprofit Initiatives to Promote Retrofitting and Weatherization
314
LEED for Existing Buildings: Operations and Maintenance
315
Building Energy Audits and Disclosure
315
Green Leases
316
What Is a Green Lease?
316
Prominent Green Leasing Standards
317
The Split Incentive Problem
317
ch. Fourteen
Motor Vehicles and Transportation / Kristen Klick White
325
Regulation of Fuel Economy and Emissions: CAFE Standards and the Clean Air Act
325
The CAFE Standards
325
Clean Air Act
329
Technological Advancements in Fuel Economy
333
Improvements to Gasoline Combustion Engines
334
Hybrid Electric Vehicles
334
Plug-In Hybrid Electric Vehicles
335
Hydrogen Fuel Cell
335
Alternative Fuels
336
Vehicle Operation and Maintenance
336
Other Initiatives to Reduce Gasoline Demand
337
Fuel Taxes
337
Efforts to Reduce Vehicle Miles Traveled
338
ch. Fifteen
Distributed Generation / Frederick R. Fucci
345
Introduction to Cogeneration/Combined Heat and Power
345
Federal Regulation of Cogeneration and CHP Facilities
347
Historical Background of Federal Regulation
347
Scope of FERC Jurisdiction
348
State Regulation of Cogeneration and CHP Facilities
351
Interconnection
353
Types and Methods of Interconnection
353
Relationship with the Local Utility---Standby Tariffs and Net Metering
355
pt. IV
Renewable Energy Sources
ch. Sixteen
Wind / Jeffrey P. Kehne
361
Wind Energy and Wind Power
361
The Distribution of Wind Energy
361
Wind Power Technology: Wind Turbines and Wind Farms
362
The Growth of Wind Power
363
Prospects for Continued Growth of Wind Power in the United States
364
Wind Farm Siting: Environmental, Social, and Safety Issues
366
Overview
366
Lifecycle Greenhouse Gas Emissions
367
Avian and Bat Impacts
368
Comparative Wildlife Impacts
369
Noise, Visual, Aesthetic, and Economic Issues
370
Aviation and Maritime Safety Concerns
372
Wind on and in Federal, State, and Tribal Lands and Waters
373
Wind Farms on Federal, State, and Tribal Lands
373
Offshore Wind
374
Public Trust Doctrine
377
Overview of Litigation and Administrative Proceedings
378
Takings of Protected Species
378
The Prolonged Dispute over the Cape Wind Project
381
ch. Seventeen
Solar / Craig M. Kline
391
Introduction
391
Government Role in Solar
393
Tax Incentives Available for Solar Project Investments
393
Cash Grant Program
394
Renewable Portfolio Standards
395
Renewable Energy Certificates
396
Commerce Clause Implications
398
State Subsidies and Incentives
400
U.S. Department of Energy's Loan Guarantees
401
Clean Renewable Energy Bonds
401
Regulatory Issues
401
Federal Energy Regulatory Commission
401
Interconnection and Net Metering
403
Davis-Bacon Act
403
Development
404
Distributed Generation versus Utility Scale Generation
404
Environmental Due Diligence
405
Building Codes, Zoning Restrictions, and Site Approvals
405
Solar Easements
405
Effect of Solar Installations on Water Resources
406
Construction and Installation
407
Power Purchase Agreements
409
Payment Structures
409
Term
410
Allocation of Environmental Attributes
410
Relocation
410
Early Termination
410
Purchase Options
411
Tax Issues
411
Operations and Maintenance
411
Force Majeure
412
Assignment
412
Permitting and Insurance
413
Partnership versus Lease
413
Basic Structures
413
Commercial Risks to Investor
414
Sale-Leaseback
414
Partnership "Flip" Structure
416
ch. Eighteen
Geothermal Resources / Sylvia Harrison
423
Introduction
423
Generation of Electricity
424
Dry Steam
424
Flash Plants
424
Binary Plants
424
Cooling Geothermal Resources
424
Enhanced Geothermal Systems
425
Direct Use
425
The Definition and Regulatory Classification of Geothermal Resources
426
Regulation as a Mineral
426
Regulation as Water
427
Sui Generis
427
Dual Regulation Systems
427
Water Rights in Relation to Geothermal Resources
428
Ownership Presumptions and Title Issues
429
Federal Rights
429
Private Ownership
430
State Ownership
430
Split Estates and Private Reservations
430
Fractional Interests
431
Other Property Interests and Royalties
431
Relative Rights of Surface and Geothermal Resource Owners
432
Pooling, Unitization, and Participation Agreements
432
Federal Geothermal Leases and Site Permitting
433
Federal Leases
433
Federal Site Permitting
434
Private and State Leases and Permitting Regimes
435
Application of Federal and State Energy Laws to Geothermal Projects
436
Federal Energy Regulatory Commission Jurisdiction
436
Renewable Portfolio Standards and Tax Incentives
436
Common Environmental Issues
436
Air Quality
436
Water Quality
437
Depletion of Water Resources
437
Site Conflicts---Species Habitat and Cultural Resources
437
Advantages and Disadvantages of Geothermal Energy
438
Litigation: Representative Cases
439
Ownership Issues: The Rosette Cases
439
NEPA and NHPA: Pit River Tribe v. U.S. Forest Service
439
Interior Board of Land Appeal Decisions
440
Unitization Disputes
440
ch. Nineteen
Biofuels / Anne Marie Hirschberger
445
Introduction
445
What Are Biofuels?
446
The Process of Producing Biofuels
446
Calculating GHG Emissions from Biofuels
447
Impacts on Water
448
Federal Incentives and Subsidies
449
Introduction
449
Examples of Federal Legislation Promoting Biofuels
450
Flexible Fuel Vehicles and Fleet Acquisition Requirements
452
Federal Requirements
452
State Requirements
453
Renewable Fuel Standard
453
The Beginnings of the Renewable Fuels Program
453
Implementing the Renewable Fuel Standard Program
454
The Energy Independence and Security Act of 2007 and the Creation of RFS2
456
Low Carbon Fuel Standards
460
Introduction
460
Attempts at a Federal Standard
461
State-Implemented Standards
461
Recent Litigation
464
Introduction
464
Federalism Issues
464
Violations of Environmental Laws
465
Zoning
466
Looking Ahead
467
ch. Twenty
Hydropower / Charles R. Sensiba
479
Introduction
479
Hydropower's Contribution to Clean, Renewable Energy Development
479
Regulation of Nonfederal Hydropower Projects
482
Regulatory Jurisdiction over Nonfederal Hydropower Projects Under the Federal Power Act
482
State Regulation of Hydropower Projects
486
Licensing and Environmental Requirements
487
License Compliance, Enforcement, and Reopeners
492
Regulation of Federal Hydropower Facilities
493
Current and Emerging Issues
495
ch. Twenty-One
Tides, Waves, and Ocean Currents / Judith Wallace
509
The Potential of Marine and Hydrokinetic Energy
509
Leasing and Licensing
510
Department of Interior Leasing Authority on the Outer Continental Shelf
510
FERC Licensing of Hydrokinetic Projects on the Outer Continental Shelf
511
FERC Licensing of Hydrokinetic Projects in State Waters
513
NOAA Jurisdiction over Ocean Thermal Energy Projects
513
Federal Ocean Energy Planning Process
514
State Proprietary and Regulatory Authority
514
Environmental Impacts
516
Environmental Review Under the National Environmental Policy Act
516
Other Regulatory Requirements
522
Navigation
522
Coastal Zone Consistency
522
Other Environmental Statutes and Findings
522
Financing Hydrokinetic Projects
523
Federal Incentives
523
State Incentives
523
Conclusion
524
ch. Twenty-Two
Energy Transmission and Storage / Shahin Milani
531
Introduction: Why Transmission Matters to Clean Energy
531
The Context from Which Renewable Energy Sources See Transmission
531
The Context from Which the Transmission Industry Sees Renewables
532
America's Electricity Transmission System: Jurisdiction, Challenges, and Potentials
533
Federal Roles
534
Brief History of Transmission Regulation and Its Tensions
534
Major Statutes
535
FERC's Authority over Transmission
536
Rate Setting
536
Siting Transmission Projects
537
Recent Issues in Federal Authority over Transmission
537
State Roles
538
The Diversity of State Regulation
538
Transmission Siting
538
Regional Transmission Organizations
539
Regional Transmission Jurisdiction
540
Jurisdictional Tension Between States and RTOs
540
Interconnection Standards
542
Dispatch
543
The Effects of Renewable Energy on Transmission Needs
544
The Old System
544
Power Variability and Intermittency
545
Supply Side Flexibility
545
Demand Response and Eliminating the Need for New Transmission
545
The Effects of Transmission Capacity on Renewable Energy
546
Electric Power Storage
546
Centralized and Distributed Power Storage
547
Special Storage Considerations
547
Smart Grid
549
What Is a Smart Grid?
549
How a Smart Grid Works
549
Functions of the Smart Grid
550
Benefits of the Smart Grid
551
How Smart Is the Smart Grid?
551
Where Should We Go from Here?
552
Transmission and Renewables: FERC Initiatives Leading the Way
552
Balancing "Neutral" Regulated Utilities against a Priority for Most-Needed Resources
553
Appendix State Actions on Clean Energy: A Fifty-State Survey
559
Table of Cases
619
Index
625