Joseph P. Tomain

Clean Power Politics: The Democratization of Energy

Those of us who follow the energy sector closely will agree: there are many moving parts in clean energy policy, and for newcomers to the field, there is a significant learning curve. When I teach Energy Law to secondand third-year law students, most of whom come in knowing very little about energy systems, much less energy industries and their legal frameworks, there is no obvious best entry point for their learning. We accept this and jump in, with a focus on what’s happening now and what’s around the bend, and then track back in detail to fill in their knowledge of energy law’s development over time – the foundation for understanding the dynamic legal environment of the energy field today. One of the best at helping newcomers get their bearings is Joseph Tomain. He has long been an astute analyst of the energy sector, with an especially keen ability to convey complex aspects of energy law and the modern grid in ways that are substantive yet accessible. He is co-author of a leading Energy Law textbook and numerous other works that I have relied upon over the years. His latest book, Clean Power Politics: The Democratization of Energy, explores the shift toward cleaner energy resources within the context of the political dynamics framing this transitional moment for the field. With this approach, the book engages the future of energy law in the United States and the forces converging to shape its trajectory. It is a thoughtful account that grounds readers in energy’s modern context and argues that a new political narrative for energy is emerging, the “democratization of energy,” based on increasing numbers of energy actors on the grid.

Clean Power Policy in the United States

Within the last year, the Obama administration has taken two significant and dramatic steps addressing the challenges of climate change and demonstrating a renewed leadership role for the US. First, as a signatory to the Paris climate agreements, the US has stepped forward to participate in that global effort after years of recalcitrance. The US, for example, signed the Rio Declaration in 1992 but five years later would not ratify the 1997 Kyoto Protocol. Now, though, the US has reversed course and has reentered the international climate conversation.The second significant climate initiative came on the domestic front as the Obama administration issued its Clean Power Plan (CPP), which promises to transform US energy policy and facilitate the ongoing transition to a clean power economy. Indeed, President Obama has called the CPP “the biggest, most important step we’ve ever taken to combat climate change.” His administration has now committed the federal government to engaging this global problem. A new narrative is developing that is attentive to emerging energy technologies, cognizant of environmental consequences of the fuel cycle, and is committed to developing a wider range of energy resources, markets, and participants on both the supply and demand sides of the meter. The CPP, then, promises to be major chapter in that new narrative.

Smart Grid, Clean Energy and US Policy

In the US, smart grid and, more generally, clean energy policies enjoy a surprisingly wide consensus. Although the consensus is strong, smart grid deployment has been hindered by barriers established by a century old fossil fuel energy policy that has had the effect of entrenching both private firms and the regulatory bureaucracy. This paper will first describe the failures to modernize US electricity markets which have led to a failure to modernize the grid. The paper will then describe the key responses to overcoming those impediments. In brief, smart grid development is central not only to more competitive and more efficient electricity markets, it is central to a clean energy economy. However, before the smart grid can be fully deployed in the US, three things must occur. First, a national innovation policy must be further developed and federal resources must be, and are being, directed to smart grid innovations. Second, federal and state regulators, together with industry and consumers, must renegotiate the traditional regulatory compact with the specific intent of designing a clean energy future and with it a smart grid. And, third, incumbent private utilities will have to retool the way they do business to optimize their use of available funds and innovation opportunities.

Nuclear regulation in transition

Abstract This article examines the current state of nuclear regulation. Since Three Mile Island the regulation of the nuclear power industry has been undergoing a noticeable transition. It will be argued here that the transition is characterized by two indicia. First, the primary focus of state and federal regulators has been on the financial aspects of the industry: this is best seen in the context of decisions allocating the costs of nuclear plant cancellations. Second, decisionmaking power has been decentralized: although the regulatory history of nuclear power demonstrates the tradition of centralized decisionmaking power (i.e., formerly the primary decisionmaking body was the Atomic Energy Commission), now states share decisionmaking power with the Nuclear Regulatory Commission. In Section 1 a brief legislative history of nuclear regulation is presented to establish the assertion that nuclear regulation, both de jure and de facto , was centralized. Next, Section 2 canvasses recent United States Supreme Court opinions regarding nuclear regulation. The Court frequently acts as policymaker through the consequences of its opinions, if not by its intent. In the area of nuclear policymaking, the Court has paid allegiance recently both to the tradition of centralization and to the movement toward decentralization. This dualism is reflected in other federal court decisions as well which will be briefly mentioned. Continuing the analysis of federal regulation, Section 3 examines the current reform efforts of the NRC. Section 4 presents an examination of state responses to nuclear plant cancellations. In this section, state administrative agency and court decisions will be examined and recent state legislation will be discussed.