RenewNewEngland.com

Connecticut v. EPA: Public Nuisance Holding May Spur Federal Legislation

On September 21, 2009, the Second Circuit Court of Appeals issued a decision reversing the dismissal of a public nuisance claim brought by eight states, New York City and three land trusts against six power companies.  The decision, Connecticut v. American Electric Power Co., which reversed the district court’s finding that the claims constituted “non-justiciable political questions,” has significant implications for a wide range of businesses, and may provide some incentive to move forward with clear, federal regulation of carbon emissions.  

In the case, the plaintiffs are seeking the abatement of the defendants’ “ongoing contributions to the public nuisance of global warming” by emitting carbon dioxide.  Concluding that deciding the case would require the “identification and balancing of economic, environmental, foreign policy and national security interests,” a job properly left to the legislative and executive branches, the district court dismissed the case.  The Second Circuit, on the other hand, found that “well-settled principles of tort and public nuisance law provide appropriate guidance to the district court in assessing Plaintiff’s claims and the federal courts are competent to deal with these issues.”

The Second Circuit also held that the federal common law of public nuisance had not been “displaced” by federal legislation (the Clean Air Act) addressing carbon dioxide emissions.  While the EPA has authority to regulate greenhouse gas emissions under Massachusetts v. EPA (pdf), the Second Circuit found that because the EPA’s proposed findings do not regulate those emissions in a way that “speaks directly” to Plaintiff’s claims, the federal common law of public nuisance may still apply.

Put together, these two Second Circuit findings - that carbon emissions issues may be justiciable and are not necessarily pre-empted by current federal legislation - indicate that, without a comprehensive set of regulations governing greenhouse emissions including carbon dioxide, emitters bear the risk of tort claims brought under the common law.  When viewed in that light, comprehensive regulation may hold new appeal to a wide array of business interests.  While conventional wisdom now holds that comprehensive cap-and-trade legislation won’t likely come to pass until 2010 or later, this Second Circuit decision may inspire some traditional foes of regulation to push for federal legislation sooner rather than later. 

New England Governors Release Renewable Energy Blueprint

On Tuesday, the New England Governors' Conference released its Renewable Energy Blueprint. The Blueprint is based in part on a draft study conducted by ISO New England at the Governors' request, the New England 2030 Power System Study (pdf),which explored a range of different renewable energy development scenarios for New England.  The Governors' Blueprint is intended to identify strategies to "help bring new renewable resources to market within the current market structure." To that end, it identifies three main opportunities for New England states:

1) Synchronize states' power procurement and contracts -  Each New England state has authority to procure renewable energy, capacity, energy and RECs, usually in the form of long term contracts with generators selected through a competitive solicitation process.  The blueprint reviews these laws, and proposes synchronizing these approaches to obtain the most cost-effective renewable resources.  This makes some sense: the wind developments needed to meet the domestic wind generation totals envisioned in the ISO-NE study (from 2,000 to 12,000 MW) dramatically exceed the scale of any single state's existing procurement program.  Given the costs and uncertainty involved, offshore wind in particular (the ISO-NE study considers as much as 4,500 MW of offshore wind) will rely on state-mandated long term contracts in the foreseeable future. But state procurement authority is typically tied to in-state development of renewables:  coordinated procurement would not address states' interests in fostering their own in-state renewable energy industries.

2) Coordinate siting of interstate transmission facilities - The Blueprint offers an overview of state transmission siting laws, and explores the possibility of coordinating these processes to facilitate building large interstate transmission lines.  Right now, there aren't any existing plans to build any such lines in New England (at least onshore: there are a number of proposals to link Maine and Massachusetts underwater), but the ISO Report states the need for a lot of new interstate transmission lines to support New England's renewable energy goals.  For example, the 12,000 MW wind case contemplates "a new three-subloop, dual circuit overhead 500 kV or 765 kV backbone transmission system overlaying most of the interior of New England."  The cases involving expanding interconnections with Quebec and New Brunswick propose two lengthy +/- 450 kV HVDC lines, including a 400 mile line stretching from the Maine-New Brunswick border to Millbury, Massachusetts.

3) Strengthen federal support for state and regional renewable development - This last category is more a hodge podge of things that New England would like the federal government to do, including prioritizing and expediting federal permitting for off-shore wind projects in state and federal waters, and providing additional funding for development of renewable resources and transmission infrastructure.  Most important, though is a general plea that the federal government:

Respect regional system planning processes and consider the results of regional transmission system plans and renewable resource scenario analysis as guidance in connection with interconnection wide analyses and any federal financial support for renewable energy infrastructure development

This hints at what's really driving the blueprint: New England governors' concerns about federal intervention forcing New England ratepayers to contribute to massive transmission projects needed to bring the huge amounts of wind planned in the Midwest to New England markets.  (For an example of what this might look like, see the Joint Coordinated System Plan (pdf), released by MISO, PJM and other regional entities in February, or our previous post on the subject.) In addition to the costs, those projects, backed by federal subsidies, could crowd out renewable energy investment in New England.  The Blueprint, along with the ISO-NE study, represent New England's latest efforts to show that New England can meet its renewable energy goals with intra-regional solutions.