This seminar will be moving forward in “real time” as climate change and clean energy legal, political and policy decisions are being made. The electricity market, technologies and policies are now transforming as rapidly as did wireless telecommunications, which changed the ways that we live and work. In this seminar, we will learn about and discuss how legal and policy principles are adapting to climate change solutions, especially emerging distributed clean solar energy and battery storage technologies and a more competitive and decentralized electric power market.
We will engage in simulations and role plays to better understand how dynamic energy law issues are addressed in the regulatory and political arenas. We will also engage some guest speakers and participants in our seminar discussions: for example, a leading climate scientist, experienced attorneys who are actually litigating some of the cases that we’ll be discussing, and solar energy industry leaders.
We will explore the newly emerging “clean energy law,” “climate law,” and “environmental constitutionalism” as federal courts increasingly review, for the first time, the constitutionality of federal and state environmental and energy statutory standards. For example, what are the limits under the Commerce Clause, Supremacy Clause and the 10th Amendment, and the new “major questions” doctrine on federal actions to encourage state clean energy and environmental policy actions, and to overrule local transmission siting decisions, and in what circumstances should there be federal preemption of states’ energy policy initiatives? Do the Commerce Clause and the Supremacy Clause affect state standards for new renewable energy development, and state subsidies for otherwise uneconomic old nuclear power plants to keep running? Can a state enact a renewable energy standard requiring utilities to purchase a percentage of their electricity supply from wind power and solar energy and specify that those resources be principally provided from in-state generators? What are the constitutional and statutory lines of demarcation between the Federal Energy Regulatory Commission’s and state Public Utilities Commissions’ regulatory authority for transmission siting and pricing, and for energy efficiency and demand response?
What challenges are presented by a federal system of government, based on state boundaries, in regulating energy generation, which produces commodities (i.e., electrons) and pollution that cross those boundaries? What are the benefits versus risks and harms of inconsistent standards in Justice Brandeis’ “fifty laboratories of democracies”?
The common law has always been the remedy of last resort — the bulwark of legal theories upon which laws are based and looked to when legislatures or policymakers have not addressed a specific issue. Is the common law a viable approach to addressing climate change in the first place, and what room does the U.S. Supreme Court’s AEP decision leave open for state common law claims? What role, if any, should there be both for the federal and state common law of public nuisance? What’s the difference? Why does it matter if federal common law remedies are displaced if the state common law remedies are not also displaced and can continue to be asserted by plaintiffs? Is the common law a prod, a solution, or both?
This seminar will take place in “real time” while: (1) There is rapidly developing new climate and energy case law with decisions issued by the United States Supreme Court (e.g., West Virginia v. EPA) and other courts (e.g., recent U.S. Courts of Appeals’ decisions remanded municipalities’ common law actions brought against oil companies for damages from greenhouse gas pollution to the state courts) in this area of emerging law; (2) Market forces and technological innovations — rapidly improving distributed solar energy and energy storage, robust wind power, low-priced shale gas, and more energy efficient lighting, appliances and equipment — are reshaping traditional energy markets and putting new economic pressures on aging baseload coal and nuclear plants; (3) The Biden administration and Congress’ Build Back Better and Inflation Reduction Act legislation accelerating climate change solutions, mostly through extending and expanding federal tax credit incentives for solar energy, battery storage, EVs and other clean technologies; (4) State and municipal governments continue to step up to accelerate climate change solutions — including moving to implement clean energy development and clean transportation policies and innovative financing approaches — as they did when the federal government stepped back during the Trump administration; and (5) The private sector is accelerating investments in cleaner energy developments and strategies.
One key opportunity and challenge for our society and government policymakers at all levels is how to construct policies that support both environmental progress — healthier air and cleaner water, and open space with diverse habitat — and economic growth together. This challenge is compounded by the growing realization that we must have policies that meet not just immediate needs, but future generations’ needs as well by reducing carbon pollution that causes destructive climate change and by preserving natural resources both for their future use and their own intrinsic value. We will focus special attention on both the legal authorities and limitations under the Constitution and federalist system that policymakers, litigants and the public face in trying to achieve this goal and accelerate necessary climate change action and solutions.
Students receive 2.0 credits for this course with a final paper of 25-30 pages on a seminar-related topic of the student’s choice. This final paper satisfies the Law School’s Upper Level Writing Requirement. An additional 1.0 credit of Research (Law 900) is available for students writing a longer paper of 40-50 pages, which they are seeking to publish in a law journal.
Course requirements are engaged class participation (33% of grade) and the final paper (67% of grade). For class participation, we’ll follow the Law School’s Policy on Classroom Participation. There are no required prerequisites for this seminar although a previous environmental law or natural resources law class, and constitutional law and administrative law course(s), will be helpful.
