White Papers

EELP staff and guest authors are producing white papers that dive deep into issues of importance to environmental and energy law.

2018

Sept. 20, 2018 The Case Against Direct FERC Regulation of Distributed Energy Resources, Ari Peskoe pieces together, from numerous orders and federal court decisions, how the Federal Energy Regulatory Commission’s (FERC) jurisdiction over interstate wholesale energy sales and transmission service applies to DERs. The paper recommends that FERC disclaim jurisdiction over DER energy sales, which would allow states to regulate all DER sales and services.

July 25, 2018 Comment of the Harvard Electricity Law Initiative on the Certification of New Interstate Natural Gas Facilities, filed by Electricity Law Initiative Director Ari Peskoe on FERC’s 20-year old policy that guides its decisions on permitting interstate natural gas infrastructure argue that accounting for the economic risks and environmental harms of greenhouse gas (GHG) emissions in a permitting proceeding is consistent with judicial precedent and Commission practice.

July 10, 2018 Errors and Inconsistencies in GAO’s Reports on the Congressional Review Act, Curtis Copeland. The author worked at GAO from 1980 to 2004, and then at the Congressional Research Service from 2004 until he retired in 2011. After retirement, he served as a consultant and special counsel to the Administrative Conference of the United States (ACUS) for several years. He is no longer affiliated with any organization.

May 7, 2018 Comment of the Harvard Electricity Law Initiative on PJM Interconnection, Revisions to Address Impacts of State Policies, filed by Electricity Law Initiative Director Ari Peskoe at the Federal Energy Regulatory Commission (FERC) about proposed capacity market rule changes emphasize that procuring electric generation capacity is a program of cooperative federalism – states may choose among resources for their environmental or other benefits while FERC has authority over capacity prices in interstate markets.

April 13, 2018 Water Quality and the 2018 Farm Bill: The Regional Conservation Partnership Program, Jamie Konopacky identifies projects that have been successfully created at the state and local levels to address negative impacts from nutrient pollution and suggests scaling them up by implementing a critical mass of these projects across multiple states and regional watershed areas. Scaling up local watershed projects to a level sufficient to address the nutrient pollution problem will require that policymakers coordinate relevant state and federal water and agriculture policies and focus them on systematically replicating model local watershed projects. This will require a sound policy framework that includes a local watershed planning and implementation approach and provides adequate funding, data, expert staff, public technology and training to support needed local watershed projects.

Feb. 21, 2018 Small-Scale Watershed Planning and Implementation in America’s Farming Communities, Jamie Konopacky includes key insights gathered during a focused discussion co-hosted by the Harvard Environmental Policy Initiative and the Minnesota Water Resources Center. The meeting aimed to share the learning and expertise of participants and advance regional discussion of a coherent model policy approach for expanding watershed project efforts.

2017

Nov. 27, 2017 Climate Implications of FERC Proceedings, Ari Peskoe and Kate Konschnik examine how Federal Energy Regulatory Commission (FERC) decisions affect the mix of resources on the electric grid and energy sector greenhouse gas emissions.

Nov. 3, 2017 Amicus Brief in Village of Old Mill Creek, et al. v. Anthony M. Star, et al. and Electric Power Supply Association, et al. v. Anthony M. Star, et al. Ari Peskoe and Professor Jim Rossi of Vanderbilt University Law School, filed an amicus brief on behalf of nearly 20 energy law professors in the Seventh Circuit case about Illinois’ Zero Emission Credits (ZECs) for nuclear power.

Oct. 20, 2017 Arkema Chemical Plant & the 2017 Risk Management Program Amendments, Laura Bloomer and Kate Konschnik

Oct. 18, 2017 Minimizing Constitutional Risk: Crafting State Energy Policies that Can Withstand Constitutional Scrutiny, Ari Peskoe and Kate Konschnik provide policymakers with key lessons from recently filed lawsuits and suggestions on how states can work within their constitutional limits to achieve energy policy goals.

Oct. 18, 2017 Comments of the Harvard Environmental Policy Initiative on The Department of Energy’s Proposed Grid Resiliency Pricing Rule, Ari Peskoe

2016

Aug. 2016 Constitutional Issues to Consider in Clean Power Plan Compliance, Part 2: The Dormant Commerce Clause, Kate Konschnik describes the contours of the US Constitution’s Commerce Clause, and explains how states can design multi-state compliance strategies that do not discriminate based on origin, wholly regulate out-of-state activity, or unduly burden interstate commerce.

Jan. 27, 2016 Designing Emission Budget Trading Programs Under Existing State LawAri Peskoe analyzes existing state authority to freely allocate allowances to EGUs and non-emitters, to auction allowances, and to include newly constructed sources in the program.

Jan. 21, 2016 Comments on EPA’s Proposed Federal Plan and Model Trading Rules, Kate Konschnik focuses on aspects of the proposal that will shape the design of well-functioning trading markets.

2016 Comment to Department of Energy on the Quadrennial Energy Review, Ari Peskoe rebuts the notion that there is a “regulatory compact” between regulators and utilities that underlies regulation.

2015

Sept. 3, 2015 The Federal Power Act in the 21st Century. Summarizes a discussion among experts from academia, industry, public utility commissions, and environmental organizations to mark the 80th anniversary of the Federal Power Act.

Aug. 19, 2015 State Roles in the Clean Power Plan: A Primer for States, Kate Konschnik and Ari Peskoe highlight responsibilities that states will have under the Clean Power Plan and provides an overview of basic plan design choices.

Aug. 2015 (Revised Jan. 2016) Issues to Consider When Crafting Clean Power Plan Multi-State Compliance Approaches, Part 1: Compact Clause, Aladdine Joroff and Kate Konschnik describe the contours of the U.S. Constitution’s Compact Clause and  Section 102(c) of the Clean Air Act, and explains how states can design multi-state compliance strategies that do not require additional Congressional consent.

July 23, 2015 Comment on NARUC’s Manual on Compensation for Distributed Energy Resources, Ari Peskoe asks the Subcommittee to include in the next version: 1) a thorough examination of how deployment of DERs by consumers and non-utility companies affects utility financial performance, and 2) consideration of competition and consumer choice in DER rate design.

2014

July 21, 2014 Power Over Pollution: Exploring State Plan Enforcement under EPA’s GHG Power Plant Rule, Kate Konschnik and Ari Peskoe describe how EPA and States generally enforce State plans submitted under the Clean Air Act, and how EPA proposes to treat enforcement issues under its rule for power plants. The paper also surveys laws in four States to assess whether they provide regulators with sufficient authority to meet EPA’s proposed requirements.

July 2014 Certifications for Green Infrastructure Professionals – The Current State, Recommended Best Practices, and What Governments Can Do to Help. Released by the Clinic and the Policy Initiative in July 2014, this report surveys the current state of Green Infrastructure (GI) professional certification programs, discusses obstacles to the development of widely accepted certifications, and suggests measures that governments can take to promote certification programs. The report also recommends best practices for GI certification program design and implementation based on design options observed in existing GI certification.

June 2014 Regional and Municipal Stormwater Management: A Comprehensive Approach. Released by the Clinic and the Policy Initiative, this report analyzes options for addressing stormwater pollution at both the regional and municipal level.  The report encourages the adoption of green infrastructure by municipalities as a stormwater pollution reduction strategy, and recommends that municipalities consider participating in a regional program as a comprehensive and cost-effective way to address stormwater pollution.

May 2014 Responding to Landowner Complaints of Water Contamination from Oil and Gas Activity: Best Practices. Released by the Clinic and the Policy Initiative in May 2014. The paper provides recommendations for state lawmakers and agencies to consider implementing to develop robust, comprehensive policies for responding to landowner complaints.  If adopted, these practices can help ensure that agencies conduct a thorough investigation of potentially contaminated water sources, landowners obtain an accurate understanding of the finding, and the investigatory process is open and transparent.

March 3, 2014 Efficiency Rules: The Case for End-Use Energy Efficiency Programs in the Section 111(d) Rule for Existing Power Plants, Kate Konschnik and Ari Peskoe conclude that energy efficiency can play two roles in EPA’s power plant rule. First, EPA should set the stringency of its GHG emission guidelines based in part on EE’s ability to save energy. Second, States should be allowed to establish or build on their existing EE programs to implement the GHG standard.

2013

April 23, 2013 Legal Fractures: Why the Voluntary Chemical Disclosure Registry Fails as a Regulatory Compliance Tool, Kate Konschnik, Margaret Holden, and Alexa Shasteen question the reliance of eleven states on a third party website for oil and gas industry reporting requirements. The registry, FracFocus, is intended to provide information to the public about the chemicals used in unconventional drilling techniques like hydraulic fracturing. But, according to the report, several design flaws make it an inadequate tool for regulatory compliance.

Additional Resources

Statepowerproject.org tracks constitutional challenges to States’ clean energy laws. Challenges are wide ranging but most focus on two grounds: preemption by the federal government, or State overreach into regulation of interstate commerce. The site includes summaries of litigation, background about key concepts, and decisions and filed briefs. We offer the site as a clearinghouse and reference for stakeholders, students, and researchers with interest in these cases.

Policymaker Summaries distill recent scholarship on state-federal energy policy issues to highlight key recommendations.