DEL - Energy, Environment, and the Law (3 credits)

Spring 2014

ENVIRON 985 - 01

Tues.8:00-9:15 p.m. (EST)

Instructor:

Jonas Monast

Climate Energy Program Director, Nicholas Institute for Environmental Policy Solutions

Senior Lecturing Fellow, Duke School of Law

919-681-7188

Course Description:

The course will examine the legal frameworkgoverning energy production and consumption in the United States,the environmental issues associated with the nation’s energy sectors, and policy approaches for balancing energy needs with environmental protection.The majority of the course will focus on the electricity sector, including state-level regulation and the energy resources for electricity generation. Classes will explore on the application of the major environmental laws to energy challenges, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act,and the Oil Pollution Act.

Reading materials:

Textbook: Energy Law in a Nutshell (2nd Ed.), by Joseph Tomain and Richard Cudahy

Additional reading assignments will be available on Sakai.

Grading:

Case studies – 25%

There will be three case studies during the semester based on recent or ongoing issues. Students will be assigned groups to work through the case study before the class. At the next class meeting, each group will discuss the key issues and their proposed solutions.

Discussion board participation – 25%

During weeks when there is not a case study, the instructor or the T.A. will pose legal and policy questions based on readings and class discussions.

Each post should be a minimum of one short paragraph and generally no longer than three paragraphs. Students should post 4-5 responses over a two-week period, with each post in the 50-100 word range.

Policy memo – 50%

Half of the grade will be based ona memo proposing a solution to a specific energy policy issue. Students may choose their own topics, and topics do not have to be based on a subject covered during the class. The memo should be concise (8-12 pages) and persuasive (why should the policymaker care?), and should provide the reader with enough information to understand the issue, evaluate the proposed solution, and assess which stakeholders may support and oppose the ideas. The proposal should take the current state of politics and fiscal constraints into consideration. There should be a summary of the problem and the proposed solution at the beginning, with the rest of the memo elaborating on the ideas.

Communications:

Each module will include a Blackboard discussion board. Please email the instructor or teaching assistant for any questions you may have on readings, lectures, assignments and other course materials. We will do our best to reply within 48 hours.

Class communications will occur through a weekly web based conference calls.

Syllabus:

Topics / Reading Assignments
Week 1 / U.S. Energy Regulation;
Overview of the U.S. legal structure /
  • Tomain & Cudahy, pp 65-103
  • Lincoln L Davies, Energy Policy Today and Tomorrow – Toward Sustainability?, 29 J. Land Resources & Envtl. L. 71 (2009) pp1-5 (Stop at Section II)
  • A Guide to the U. S. Federal Legal SystemWeb-based Public Accessible Sources,

Week 2 / Introduction to Electricity Regulation /
  • Tomain & Cudahy, pp 165-204
  • Regulatory Assistance Project, “Electricity Regulation in the U.S.: A Guide,” (pp 9-28)

Week 3 / State electric utility regulation
Discussion Board #1 closesat start of class /
  • Dworkin et al., The Environmental Duties for Public Utility Commissions, (pp 1-5)
Kentucky Public Service Commission, Louisville Gas and Electric and Kentucky Utilities Company 2009 Application for Approval of Purchased Power Agreements and Recovery of Associated Costs
Read in order:
  • LGE-KU Motion for a Declaratory Ruling (Aug. 28, 2009) & Application for Approval (Aug. 28, 2009), (pp 1-26 of the following pdf)

  • Joint Motion of the Attorney General and KIUC to Dismiss (Sept. 4, 2009):

  • Order (Oct. 21, 2009):

Week 4 / Electricity Market Restructuring; Recent FERC Orders
Case Study #1 – Energy Innovation and the PUC /
  • Tomain & Cudahy, pp 373-408
  • Joel Eisen, Who Regulates the Smart Grid?, excepts

Week 5 / Introduction to coal; Clean Air Act overview /
  • Tomain & Cudahy 316-358
  • Congressional Research Service, Clean Air Act: A Summary of the Act and Its Major Requirements

Week 6 / Recent EPA rules impacting coal-fired power plants; Clean Air Act and Markets
Discussion Board #2 closesat start of class /
  • Paul J. Miller, A Primer on Pending Environmental Regulations and Their Potential Impacts on Electric System Reliability
  • Sam Napolitano, et al, The U.S. Acid Rain Program: Key Insights from the Design, Operation, and Assessment of a Cap-and-Trade Program, (Read Parts I & II)
  • NC v. EPA, (CAIR ruling) excerpts

Week 7 / The Clean Air Act and Climate Change
Case Study #2 – Limiting CO2 Emissions from Existing Power Plants /
  • Monast & Tarr, Primer on GHG Regulation of Stationary Sources under the Clean Air Act: Interaction of Tailoring Rule and Proposed NSPS
  • Monast, et al., Regulating Greenhouse Gas Emissions from Existing Sources: Section 111(d) and State Equivalency
  • Coalition for Responsible Regulation v. EPA, excerpts

Week 8 / Renewable Energy – Renewable Portfolio Standards, Land Use /
  • Tomain & Cudahy, pp 509-543
  • Burch v. Nedpower Mount Storm, LLC, 220 W.Va. 443 (2009)
  • Animal Welfare Institute v. Beech Ridge Energy, LLC, 675 F.Supp.2d 540 (2009)

Week 9 / Nuclear Energy – Nuclear Waste Storage; U.S. Government Support; Nuclear Energy after Fukushima
Discussion Board #3 closesat start of class /
  • Tomain & Cudahy, pp426-469
  • NARUC v. Dept. of Energy
  • Congressional Research Service, Nuclear Energy Policy, pp 1-7 (starting after table of contents), 12-23

Week 10 / Introduction to Natural Gas /
  • Tomain & Cudahy, pp 269-302
  • US EIA, Annual Energy Outlook: Natural Gas,

Week 11 / Natural Gas – Hydraulic Fracturing Overview
Case Study #3 – Hydraulic Fracturing Litigation /
  • Anschutz v. Town of Dryden
  • NY v. Army Corps of Engineers

Week 12 / Offshore Oil Production /
  • Tomain & Cudahy, pp 252-268
  • CRS, Offshore Oil & Gas Development: Legal Framework
  • Andrew J. Torrant, Oil Pollution Act of 1990: A Year in the Spotlight

Week 13 / Energy Innovation
Final Paper Due /
  • William Bonvillian, Time for Climate Plan B
  • Kelly Sims Gallagher, et al., The Energy Technology Innovation System