Water, Wind, and Fire: A Call for a Federal Renewable Portfolio Standard

Duke Environmental Law & Policy Forum, Dec 2014

Francesca F. Bochner

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Water, Wind, and Fire: A Call for a Federal Renewable Portfolio Standard

WATER, WIND, AND FIRE: A CALL FOR A FEDERAL RENEWABLE PORTFOLIO STANDARD FRANCESCA F. BOCHNER 0 1 2 3 0 Duke University School of Law, J.D. expected 2015; Dartmouth College, B.A. 2010. Special thanks to Professor Jeremy Mullem for his guidance throughout the writing process, to Professor Jonas J. Monast for his mentorship, to the editors of the Duke Environmental Law & Policy Forum for their thoughtful edits, and to my family for their support 1 The acid rain in New 2 Copyright © 2014 Francesca F. Bochner 3 Therefore , efforts “By failing to prepare, you are preparing to fail.” In the 1980's, acid rain began to have a serious cumulative effect on the Northeastern United States.1 Acid rain is formed when electrical utilities and other industries combust fossil fuel and release sulfur dioxide and nitrogen oxide.2 These byproducts react with water, oxygen, carbon dioxide, and sunlight to become sulfuric and nitric acids.3 Precipitation then transports the sulfuric and nitric acids as acid rain from the atmosphere to the ground where they harm the environment.4 The acrid rain crisis in the 1980's destroyed Northeastern spruce forests by depleting nutrients in the soil.5 It also damaged fish populations by leaching aluminum from the banks and clogging their gills.6 By 1991, 5% of lakes in northeastern states were acidic.7 Acid rain is an inherently trans-border problem. I. INTRODUCTION 3. Id. 4. Id. 6. Id. 5. Acid Rain Questions & Answers, N.Y. DEP’T OF ENVTL. CONSERVATION, http://www.dec.ny.gov/ chemical/8418.html (last visited Oct. 3, 2014). 7. Two percent of lakes could no longer support brook trout and 6% could no longer support minnow species. Acid Rain in New England: A Brief History, U.S. EPA (Sept. 19, 2013 ), http://www.epa. gov/region1/eco/acidrain/history.html [hereinafter A Brief History]. 8. See id. (linking long-range SO2 transportation with high pollutant concentrations in Northeastern lakes); see also Howard Perlman, Acid Rain: Do You Need to Start Wearing a Rainhat?, U.S. GEOLOGICAL SURVEY (last updated Mar. 17, 2014, 11:03 AM) , http://water.usgs.gov/edu/acidrain.html (discussing wind [Vol. XXV:201 to curb sulfur or nitrogen emissions in the Northeast cannot prevent acid rain from falling on the region’s waterways. In 1990, George H.W. Bush signed amendments to the Clean Air Act that established a federal program to control sulfur dioxide and nitrogen oxide emissions.9 Title IV of the amendments required an almost 10 million ton reduction of sulfur dioxide in two phases over five years.10 By 2013, sulfur dioxide emissions had already decreased 5.5 million tons while nitrogen oxide had decreased 3 million tons.11 The new regulations led to an approximately 40% reduction in sulfate deposited by acid rain in New England.12 The program succeeded by controlling pollution in the Midwestern origin states for the affected northeastern states’ benefit.13 The acid rain program is one successful example of why federal action is needed on environmental issues. If the states were left to their own devices, those responsible for acid rain—that do not suffer the associated environmental degradation—would have little incentive to bear the regulatory costs. Carbon dioxide (CO ), like the air pollutants that cause acid rain, is a trans2 boundary problem that cannot be effectively regulated on a state-by-state basis. One increasingly favored way to address carbon dioxide emissions from power plants is to institute a renewable portfolio standard (RPS),14 also called a renewable electricity standard (RES).15 An RPS is a legislative requirement that electricity providers obtain a certain amount of the power sold to consumers from renewable sources.16 An RPS is often stated as a percentage of total energy sold to consumers.17 Beyond this general definition, RPSs vary widely regarding the percentage of energy that must come from renewables; what is considered a renewable source; and how utilities can reach the required renewable energy percentage (whether from energy conservation, direct investment in new renewable generation facilities, purchasing agreements, or other options).18 One significant benefit of an RPS is that it can reduce carbon dioxide and other pollution by replacing current fuel sources for electricity generation with lower-carbon alternatives.19 However, the real importance of RPSs is that they create a market for renewable energy sources. The market then drives investment and innovation, which in turns lays the groundwork for a sustainable energy future.20 Economies of scale also help lower the cost of renewable energy generation.21 Before President Obama took office he promised to create a federal renewable portfolio standard as part of his Obama-Biden Economic Plan.22 The Plan proposed an RPS requiring that 25% of American electricity be renewably generated by 2025.23 However, five years later, Obama’s 2013 Climate Action Plan did not even mention a federal RPS. 24 Instead, the 201 (...truncated)


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Francesca F. Bochner. Water, Wind, and Fire: A Call for a Federal Renewable Portfolio Standard, Duke Environmental Law & Policy Forum, 2014, pp. 201-225, Volume 25, Issue 1,