We are proud to announce our selections. The notes this year were of exceptional quality, and the decisions were extremely difficult to make. Congratulations to our authors:

Kelo, Conservation Easements, and Forever: Why Eminent Domain Is Not a Sufficient Check on Conservation Easements’ Perpetual Duration
by Derrick Fellows

Let’s Face Facts, These Mountains Won’t Grow Back: Reducing the Environmental Impact of Mountaintop Removal Coal Mining in Appalachia
by Diana Kaneva

Finding a New Green in Postwar Iraq and Afghanistan: An Argument for Cooperation
by Kent Miller

So Much Up in the Air: The Carbon-Dioxide Debate and Coal Plant Permitting in Virginia
by Sam Robinson

Beyond NEPA: Nuclear Terrorism and the Need For a Homeland Security-Administered Infrastructure Vulnerability Assessment Regime
by Mike Munson

Getting Hazmat Transportation Back on Track: The Need for Hazmat Liability Reform for Rail Carriers
by Zach Abel

Wall Steet Walk: Dead-end for Chesapeake Cleanup?
by Brad Bartels

Eco-Patents Commons: A Donation Approach Encouraging Innovation Within the Patent System
by Andy Boynton

Breaking the Transubstantive Pleading Mold: Public Interest Environmental Litigation After Ashcroft v. Iqbal
by Scott Foster

The Williams & Mary Environmental Law & Policy Review is currently reviewing submissions for Volume 35. We strive to be a leader in the publication of environmental jurisprudence and policy. If you have an article that you would like to submit for consideration, please email our new Editor-in-Chief, Paul Spadafora (pjspadafora@wm.edu). We require the article in full and a CV.

Thank you for your interest in publishing with us!

Editor-in-Chief
Paul Spadafora

Managing Editor
Taylor Davidson

Executive Editor
Ryan Sutcliffe

Technical Editor
Fitz Collings

Symposium Editor
Sarah Becker Prew

Senior Article Editors
Diana Kaneva
Elizabeth Kiernan

Senior Notes Editor
Angelina Lee

Article Editors
Andrew Boynton
Kelly Kennedy
Kent Miller
Samantha Vrscak

Notes Editors
Sam Robinson
Julia Stolar

Jeffrey Deyette, Senior Energy Analyst, Union of Concerned Scientists

Jeff Deyette spoke in an effort to promote a national renewable electricity standard that, he proffered, would benefit both the environment and the economy.

Mr. Deyette began by providing an overview of the renewable electricity standards timeline, illustrating that, although widely discussed, most major enactments and revisions to state guidelines have occurred in the previous five years, with a peak occurring in 2007.

Next, Mr. Deyette discussed the policies that support implementing, both at the state level and the national level, renewable electricity standards. In regards to environmental benefits, Mr. Deyette pointed to climate change, air and water benefits, improved public health, and land use benefits. He stressed the fact that scientists believe the United States needs an 80% decrease in current carbon emissions by the year 2050 if we are to avoid the most severe of the climate change effects that we are currently on track to experience. He also spoke to the consumer benefits in place, where consumers could expect to experience whole sale price effects, more stable electricity and natural gas bills, job creation, capital investment, landowner income, and local tax revenue if and when renewable electricity standards are implemented.

Mr. Deyette offered as evidence of the effectiveness of renewable electricity standards studies that have shown that the state standards currently in place have been a driving force towards the development of booth additional renewable capacity and technology to deliver renewable electricity. The wind industry alone currently employs 85,000 in the United States, having added 35,000 new jobs and ninety-six manufacturing facilities in the last two years.

The results of a recent study illustrated the benefits that would be experienced were the US to implement a 25% by 2025 Federal RES. The study utilized the EIA’s national energy modeling system that was developed for Annual Energy Outlook 2008, using input/output models for job results. By 2025, the study showed such an implementation would displace the need for over 12.4 trillion cubic feet of natural gas and 547 million short tons of coal, the distance equivalent of coal cars, lined end to end, circling the earth twice. Additionally, investing in renewable energy sources at home would cause, essentially, a wealth transfer of $10.3 billion dollars, which would be kept in state by states no longer presented with a need to import coal. For consumers, average natural gas prices would fall by approximately 2.3%, with the average annual consumer electricity price reduction coming in at 4.3% savings, who would also see approximately 297,010 jobs created, in comparison to an expected 94,780 jobs which would be created by traditional fossil fuels usage.

Mr. Deyette concluded by discussing two bills currently within the Senate. The first was passed by the House, and called for a 20% by 2020 RES included in ACES. The second, passed by the Senate Energy Committee, was a 15% by 2021 RES included in ACELA. To date, however, it is unclear whether either of these bills will make it past this point.

Mr. Deyette wrapped up his presentation by talking about how RES will not break the bank, and how these standards will be a good complement to a more comprehensive energy policy.

David Loomis & Adrienne Ohler, Associate Professors of Economics, Illinois State University

Illinois is an interesting case study for renewable portfolio standards for many reasons. First, the state has a 25% by 2025 Renewable Portfolio Standard (RPS) with 75% carve-out for wind. This is significant because Illinois is the 5th largest electricity consuming state and the state has been deregulated. In 1997 the state passed the Restructuring Act entitled the Electric Service Customer Choice and Rate Relief Act with allowed Alternative Retail Electric Suppliers who marketed to customers. As a result generation companies owned the power plants (and were deregulated) while distribution companies owned the lines into homes (which continued to be regulated). In 1998, rates were cut and a rate freeze ensued for ten (10) years. After the ten years, there were rate increases which caused sticker shock (minimum increase of 26%). Later in 2007 Illinois passed the Renewable Energy and Energy Efficiency Standards which were expanded in 2009. The state also has a net metering program which allows customers to sell their excess energy which they generate on their property with renewable devises back to the utility. This gives homeowners an incentive to install these devices.

Illinois RPS has a target of 2% in 2008 which will increase to 10% by 2015, and 25% by 2025 (with an in-state preference). To meet these targets, Illinois has designated solar electric, wind, solar thermal, biomass, geothermal, landfill gas, existing hydro, trees and tree trimmings, and biodiesel, as eligible renewable resources. There is also a consumer protection clause to protect consumers from their rates escalating too high. The implementation of the Illinois standard includes the 2010 procurement plan with includes long term contracts for approximately half of the 210-2011 RPS requirements.

In 2008 there was consumer backlash because the wind prices for wind that was produced in Illinois was twice as expensive as wind energy form adjoining states. However, this was not a result of it actually being more costly to produce, instead it resulted from the in-state preference which caused the higher prices. As a result, in the 2009-2010 year, Illinois will try to moderate the price through creating a market benchmark.

Illinois has determined the positive economic impacts of wind energy development in Illinois to be sizable, with job creating being very important (construction jobs are the largest category). Wind is also very good for Illinois because it is surprisingly a windy state and more importantly, this source of energy is located near a major population source (Chicago). Ohler and Loomis have concluded that wind is the most economically feasible energy source for Illinois and is the best renewable resource for the state. One issue still requiring attention is who should pay for the cost of transmission lines? Although Illinois has proved that wind energy is abundant, until the state is able to determine who should pay for the transmission lines, it will be difficult to implement renewable energy sources.

Ms. Ohler concluded by summarizing her policy recommendations. To start, she recommended caution in determining what counts as a renewable source. For example, Illinois’ included landfill gas as a renewable source in the form of biomass. Since then, this area has seen little growth, suggesting that the firms utilizing landfill gas as a source of energy are being paid more to generate electricity they were already producing than to implement further renewable sources. Ms. Ohler also stressed that Illinois’ RPS has not yet affected emissions. Quick results are not necessarily the goal of an effective RPS program. Ms. Ohler warns that states implementing an RPS should be wary in looking for quick results in terms of job grown and emissions reductions - they will take a while to appear.

Delegate David Bulova, Virginia House of Delegates

Delegate David Bulova, a College of William & Mary alumnus, represents the 37th District, which lies in the heart of Fairfax, in the Virginia House of Delegates. He was first elected to the General Assembly in November 2005. Professionally, Delegate Bulova is a Senior Planner at AMEC Earth & Environmental, Inc., where he works to help local governments comply with state and federal environmental regulations.

Delegate Bulova began his presentation by noting that legislation by the states, not the federal government, will be the driving force of energy policies. In terms of the problems that Virginia faces in framing its own legislation aimed at climate change, Delegate Bulova mentioned that three main areas have been examined. First, the most compelling problem is the rising sea level on coastal Virginia, which will radically impact Virginia’s economy. In addition, this problem is already making insurance prices rise in coastal communities. Another key issue is the impact on species and agriculture, and the third area of concern is the affect on human health.

Delegate Bulova discussed the political debates surrounding energy issues in Virginia. He mentioned the political side of renewable portfolio standards (”RPS”). Nuclear energy is 35 percent of Virginia’s energy capacity, and this issue is currently being considered. Another political issue is whether RPS should be mandatory. Currently Virginia’s system is a voluntary benchmark system. Cap and trade is also another key political issue. Virginia considered having its own program but chose not to do so due to fears regarding leakage. He noted that one current issue of key debate is the conflict between homeowners decisions and homeowners associations in terms of regulations of energy decisions, such as installing solar panels.

In discussing how to mitigate issues that will result from climate change, Delegate Bulova noted that Virginia has done a lot in terms of emergency planning to prepare for these changes.

Delegate Bulova discussed that his House bill 1994 increased Virginia’s voluntary renewable portfolio standards, which is designed to reduce greenhouse gas emissions. The bill passed the house unanimously and squeaked by in the senate. He also mentioned other legislation that is addressing Virginia’s current energy policies. This year, Delegate Bulova, said that there are many bills coming up that could make big changes in Virginia’s energy policy. For example, senate bill 540 would turn rps standard from a voluntary standard to a mandatory system.

Delegate Bulova will continue to work to find the best energy solutions for Virginia and to inform Virginia residents about the best long-term policies for the state.

Tyson Slocum, Director of Energy Program, Public Citizen

Tyson Slocum discussed Public Citizen’s efforts towards promoting the public’s interest in renewable energy. He focused on feed-in tariffs. A feed-in tariff is a mechanism for building a subsidy into the production of renewable energy. The overall use of renewable energy is still quite low, however, due to inadequate federal financial incentives. The federal government does have the Renewable Production Tax Credit, which provided $1.2 billion in 2009.

By comparison, the oil industry receives some 9 billion in tax relief. Moreover, the financial benefactors of the Production Tax Credit were those entities that actually profit. Solar developers typically did not have enough taxable income to benefit from this federal program.

By getting the individual consumer in the mix, the use of renewables can increase notwithstanding politics. How can the individual household get involved? The household can help “decentralize” power by generating renewable power for that household and eventually other households.
Households can generate renewable power and receive a subsidy (the feed-in tariff) from ratepayers instead of taxpayers. Two examples of robust feed-in tariffs are Germany and Spain where they generate 4.5 times and 2.8 times more solar energy than the U.S. as a direct result of feed-in tariff financing.

A feed-in tariff can be promoted by a federal feed-in tariff that is in turn financed through climate legislation that raises money by placing a price on carbon. Utilities are resistant to these practices because feed-in tariffs help customers become independent power generators. This resistance is also based on the path paved for energy reform by the federal government.

For example, Mr. Slocum reported that on Monday, President Barak Obama is going to announce $50 billion in loan guarantees for new nuclear power.

In conclusion, state renewable portfolio standards helped get us to where we are today, and feed-in tariffs can run us through the final leg toward efficient renewable energy production for consumers. We will have to watch Congress and the President closely to see if they are serving the people’s interests instead of focusing corporate interests.

Joel Eisen, Professor of Law, University of Richmond School of Law

Professor Eisen started his presentation with a question, what is the point of discussing China’s efforts in renewable energy? If China began to use as much energy as we do per capita, they will put a lot of demand on resources that generate electricity.

Chinese resist caps on their greenhouse gas emissions. They rely on domestic measures - one of which is the ‘Renewable Energy law.’ We must consider the effectiveness of that law to understand how effective they will be at reducing their emissions.

China currently has something in place that looks like the renewable portfolio standards. China is on their way toward being both the greenest and the blackest place on earth. They are leaders in wind and solar technology. Their domestic system, that looks like ours for bringing renewable energy onto the electricity grid. If they do a good job bringing renewable energy onto the grid, they will rely less on fossil fuels and coal and decrease the effects of global warming. China has used a lot of the mechanisms that we have, because they look to the US and Europe as models of how renewable energy should look. China is going to have an enormous amount of their electricity made from renewables eventually. Their current renewable portfolio calls for 20% by 2020.

A lot of the information about energy use in China is considered to be a state secret and it is difficult to get good data. China is the most polluted nation on earth. China’s polluted water and air result in 750,000 premature deaths each year. 70% of China’s electricity is generated from coal, which is much higher than the US.

Law in China is fundamentally different. The law originates from Beijing in a top down structure. The national government makes the law and then local governments have to implement it. There is not any cooperative federalism–the national government dictates that something must happen. Local enforcement of environmental law in China is virtually non-existent. We take it for granted in the US, that state regulators will implement environmental laws.

China has said that they won’t accept greenhouse gas emission caps. They will use the new law as a cornerstone of what they are doing. China says that they will implement the new law, but a lot more is going to be necessary.

Chinese passed the Renewable Energy Law, which made renewable energy a priority for the government. The grid companies were told in this law that they had to buy renewable power from countries that established renewable energy generation. The problem was that not all of these generators were hooked up to the grid. The Renewable Energy Law is regulated by a number of different agencies. It wasn’t a renewable portfolio standard type of target - it wasn’t a mandate. The government went to the utilities and said that they will generate a certain percentage in renewables.  The targets were much more ambitious than the resources that were put in place.

The NDRC in China issues regulations about grid space purchased. They require that provinces buypower and interconnect it to the grid. For wind, it was done by a bidding system. The company would put out a bid, ask who wants to generate renewables, and ask how much they should pay for generation. The only regulation was that the bidding couldn’t exceed more than what could be generated locally. The problem is that there is no way to make wind cheaper than coal generated power. But, because this isn’t a free market, it is clear that these are not the conditions under which Dominion purchases power. There is wiggle room in the bidding system. The bidding system has been replaced by feed in tariffs. NDRC is now saying that for four different regions of the country, wind developers will be paid a consistent amount of money for what they generate.

A feed-in tariff says that if you generate renewable energy you get paid for it. You can get paid up front or the price of whole-sale energy. The system focuses on paying the generator a specific price for the amount that you generate. It has nothing to do with demand.

Chinese have implemented direct subsidies to people who use solar power or who generate renewables. So far, installed solar capacity has sky rocketed. The law has had enormous impacts in increasing wind capacity sense 2006.

China is planning a 10 giga watt turbine cluster in Gansu province, which is almost the size of the capacity in the whole world. There are problems with bringing this about, however. Like the United States, the windiest parts of the country are very far from the power grid, which is the same problem in China. The windiest sites are nowhere near where they are needed. China may have the installed capacity, but it isn’t going anywhere.

Local and provincial companies, the people who actually push the button to decide what source of electricity is used were actively discriminating against renewable power producers. They didn’t want to buy energy from producers that were outside of the province. In China, there is no dormant commerce clause to protect against this problem.

At the same time, the Chinese have implemented a strengthened smart grid system. The Chinese are planning to spend 87 billion by 2020 on smart grid system. China doesn’t have to worry about federal and local jurisdiction and they will relocate anyone who gets in the way of the transmission line.

Accountability is an enormous problem. At the national level, there is a complete lack of transparency. The national energy council reshuffles their energy bureaucracy on a whim. When China says they will spend $87 billion on a grid, we have to take their word for it because we really don’t have anyway of knowing for sure. At the local and provincial level there is no way to ensure that grid companies buy renewable power.

Don’t believe the hype. They have a very aggressive program to bring renewable energy online, except that if you look at it, you see that there are a lot of challenges that remain to implementing this new law. It is a more subtle and complex issue than the headlines present it to be, so the US will have to closely monitor China’s development in renewable energy portfolios .

Joshua Fershee, Assistant Professor, University of North Dakota School of Law

When looking at energy policy goals, we must first think about what our ultimate goals are. In the short term, everything sounds great: energy independence (freedom from foreign oil), combating climate change, environmental protection (in a broader sense), low-cost energy sources, job creation, etc. However, look at the greater implications, and suddenly you realize - in the words of Mick Jagger: “you can’t always get what you want.” These choices all have their consequences and as such - long-term goals must be aligned with the costs and limitations that are counterweighing these benefits’ choices.

Looking across the United States today, there is a piecemeal approach to renewable policy standards, an approach that has lent piecemeal results. Professor Fershee suggests, “State-by-state, sector-by-sector approaches may have reached the limit of effectiveness.” According to Sun Tzu, author of The Art of War, “Strategy w/out tactics is the slowest route to victory. Tactics w/out strategy is the noise before defeat.” In essence, Professor Fershee adopts this message and suggests that long-term goals must be tackled with a mind towards the implications they bring. In other words, we must create a cohesive and forward-looking approach to address the implication issues we face today.

In his argument, he notes a few legislative presumptions for renewable energy resources: (1) technology should be considered, but not favored; (2) most people don’t understand technological options beyond the basics (their greater implications); (3) legislators are people (influenced for good & for bad); (4) legislation should largely be focused on what we know we need or be used to facilitate letting the market tell us what we need (i.e. allow energy clients save money if they transfer energy demand to a time when energy supply is at its lowest ebb by using smart electricity grid systems or similar technology).

So what are the impediments keeping us from implementing a renewable resource portfolio standard across the U.S.? They are broader than often realized, and include: physical restraints (infrastructure), technological prohibitions (technology is ready when its ready; financially feasible tomorrow doesn’t mean today), legal barriers & varying legal standards making implementation complicated and expensive; and even psychological problems. For example, how do we address people’s comfort level with efficiency, technology, etc.? What will happen when energy companies tell their clients - you must turn your lights off at this time… ? These concerns are all part of a greater problem, and that is implementation.

We know that U.S. interest often supports the goals put forth by resource conversation. However, the problem is balancing this interest with the costs they bring. Implementation can be largely aided through a nationwide policy - one that works to create a more coherent and cooperative approach. States have adopted various standards with varying degrees of success. The federal government can take these systems and work to improve where they have fallen short. The federal government can provide for consistency, and bring the federal “de minimis” bar up to a standard that will allow for conservation across the U.S.

In conclusion, Professor Fershee suggests that the key to solving this nationwide problem is to focus on implementation. Infrastructure is more than pipelines & transmission lines; it’s more than brick & mortar. It includes economic & social concerns. It also includes stimulus packages, and many other government actions. It is not until we remember the greater implications of our policy choices & adopt policies that balance all of these issues that we will be successful. Clearly, there are many impediments to a broad-based renewable portfolio standard; however, a federal standard for renewable portfolio standards can be a start to addressing these impediments.

Mark Webb, Dominion Resources Services, Inc.

Mark Webb, Director of Policy and Business Evaluation Alterative Energy Solutions of Dominion Resources Services, Inc., spoke this afternoon on Dominion’s “New Direction in Energy”.

Dominion is a leading provider of electricity, natural gas and energy services to not only Virginia, but to the Mid-Atlantic region as a whole, amongst other regions nationwide.  Dominion serves more than 2.4 million customers in Virginia alone, with 18000 megawatts of generating capacity dedicated to Virginia customers.

Currently, Dominion Virginia Power is generated by  26% natural gas, 18% nuclear power, 31% coal, 12% oil, 13% hydro/other sources of power.  Dominion is also in the lowest third of the CO2 producing power companies in the U.S., given their use of nuclear power.  For the future, Dominion’s integrated strategy includes a balanced and diverse portfolio of generation including renewables, energy conservation and investments in new infrastructure.

Mr. Webb discussed several future concerns, including: rising demand, environmental protection, new generating stations, intensified conservation programs, and advanced technology delivery.

A large concern for Dominion was the high demand for electric power in Virginia and its significant growth in the recent past.  Virginia is the 2^nd largest importer of electricity, second only to CA, due to rapid growth in the past 16 years.  In addition, military base expansion and northern VA data centers has dramatically impacted the increase in power usage.

Another factor in this growing demand is usage by residential customers has increased by 12% since 1992, due to an expansion in the typical household’s dependence on electronic appliances.  This heightened demand is unlikely to decrease and a possible future concern is that with this growing use of electronics, how can we ensure that people do not draw on energy sources all at the same time?  Ideally, people will charge at night, rather than peak periods.  This issue will have a serious impact in the future of electricity generation in the future.

Despite this increased demand, Dominion has committed to state’s goal of 10% electricity consumption reduction by 2022.  Dominion also encouraged the use of CFL light bulbs, which are more efficient than those typically used in households.  Conservation plan included 12 programs, which where focused on residential lighting, residential new home ENERGY STAR programs, residential air conditioner cycling programs and upgrades for commercial HVACs.

Among the most interesting of Dominion’s conservation programs for the future was the inclusion of “Smart Meters”.  Smart meters are an advanced metering infrastructure, which is a small computer that would replace existing meters that allows two way communication between utility companies and consumers that would enable more efficient management of power usages.  For example, it would eventually automatically shift demand to off peak hours, thus providing a savings for consumers and evening out the load on the generating system.

Dominion has a range of different types of power generation, Mr. Ward highlighted the following as examples of the diverse types of energy included in Dominion’s portfolio:

-Virginia City Hybrid Energy Center which is a combined biomass and coal facility.

-Wind Power sites in multiple states including 264 MW generated in West Virginia; 400 MW in Indiana (with potential for expansion to 750MW); Illinois 300 MW under development; and announced projects in western Virginia.

Dominion has committed to a voluntary goal 15% of power supply from renewable resources by 2025.  About 2% of Dominion Virginia Power’s current generation comes from renewable sources.  Currently, Dominion Virginia Power has biomass and hydroelectric renewable power generation.  Dominion has also instituted a greenpower option where customers in Virginia can pay more for green power, ensuring that their power is supported by renewable energy.

Additionally, Dominion’s efforts in upgrading the power grid includes a $4 billion investment in power grid in Virginia to integrate all the possible forms of energy anticipated over the next decade.  An example of these efforts is the 500 kilovolt (kV) transmission line which would span about 60 miles from Carson to Suffolk, Virginia which is under construction now.

Dominion recently formed an Alternative Energy Solutions department to conduct technological research in renewables and conservation load management to support Dominion and help participating in shaping the nation’s energy policy.  One of the programs Dominion envisions for the future is the integrated microgrid.  This program would create voluntary communities, real or virtual, which would link users to conserve energy from participating customers.  Users would voluntarily allow Dominion to shut off power from certain appliances for a designated period of time.

Finally, Mr. Webb spoke of the obstacles energy providers, like Dominion, face in exploring renewable energy sources.  The challenges in obtaining state approvals and licenses necessary to harness these renewable energy sources have proven to limit the advancements made in the renewable energy sector.  Among the case studies mentioned was Virginia’s offshore wind potential.  Offshore wind is Virginia’s single biggest potential source of renewable resources, but there’s been many obstacles including jurisdictional battles between state and federal government, which has recently been settled via FERC and MMS Memorandum of Understanding. But, other issues including transmission, cost efficiency and a host of regulatory concerns are still obstacles to harnessing this energy.