I am very pleased to welcome guest bloggers Jim Rossi (Vanderbilt) and Emily Hammond (George Washington) to Energy Law Prof Blog to announce the Fourth Edition of their Energy, Economics and the Environment textbook (Foundation Press 2015), which is authored by Joel Eisen, Emily Hammond, Jim Rossi, David Spence, Jacqueline Weaver & Hannah Wiseman.
In the early 1990s, the late Fred Bosselman asked why a practice field as significant as energy law does not have a good casebook. Along with Jim Rossi and Jacqueline Weaver, he provided an answer: The first edition of Energy, Economics and the Environment was published by Foundation Press in 2000. David Spence and Joel Eisen joined the casebook for its second and third editions; Emily Hammond and Hannah Wiseman are joining the fourth edition, which Foundation Press will publish in Spring 2015. (For those teaching energy courses in the 2014-15 academic year, the authors are also offering the chapters in manuscript format).
As co-authors, we are unified in a commitment to energy law as an exciting and distinct legal practice area and field of study. The governance, environmental, and national security implications of energy law are far-reaching, and—to us—part of what makes it an appealing and provocative field. Indeed, developments since the book’s third edition have significantly impacted the landscape. Consider just a few:
- The United States has become an energy production powerhouse—from the major rise in natural gas production enabled by hydraulic fracturing to being poised to surpass Saudi Arabia as the largest oil producer in the world. Laws designed for a different time must adapt to this new reality.
- Federal agencies have been tackling today’s most pressing challenges involving the intersection of energy production and environmental laws—in particular, climate change—using old statutory frameworks. As the recent Supreme Court decision Utility Air Regulatory Group v. EPA makes clear, numerous issues surrounding this approach have yet to be resolved.
- Renewable energy technologies have seen sustained growth, especially in the electric power sector. But neither large-scale wind projects nor distributed solar panels will displace fossil fuel-fired generation without continued governmental support, the provision of which has sparked considerable debate.
- The U.S. electric power grid is facing major challenges, as limited transmission capacity in many parts of the country strains the aging grid, and new technologies such as microgrids, distributed solar, and demand response challenge the business model of monopoly distribution utilities.
If nothing else, these examples reveal energy law’s dynamism. Yet its ever-evolving range of issues can seem overwhelming and incohesive. To give readers tools for confronting these wide-ranging challenges, our fourth edition offers a renewed focus on the unifying characteristics of energy law. Chapter 1 (early draft available here) provides a framework for organizing and understanding energy law by introducing four recurring and cross-cutting themes: 1) ownership; 2) monopoly vs. competition; 3) externalities and risk concepts; and 4) public governance. These four themes have defined energy law since the area developed in the early twentieth century—and they play out in every energy resource arena:
- Ownership. The twin concepts of property and ownership are fundamental to American law. Deeply held notions of what it means to “own” something both provide explanatory power for much of energy law and raise challenges to innovation in energy technology, law, and policy. Furthermore, the choice whether energy resources are privately or publicly owned holds consequences for their management and regulation. Cutting-edge energy issues, such as hydraulic fracturing and renewable power project development, often reflect strong views about ownership regimes.
- Monopoly vs. Competition. Many energy resources are price regulated for obvious consumer protection purposes, but price regulation also goes hand-in-hand with government endorsement of a monopoly franchise for energy resources. Much of energy law’s history involves government bodies interacting with the private sectors to form regulatory commitments to attract investment and promote innovation in energy resources. Once major investments are made in energy infrastructure, careful attention must be paid to who bears the risks of these investments and the incentives this creates for new market entrants and innovation.
- Externalities and Risk Concepts. Perhaps more than any other issue, increased attention to the externalities produced by energy resources has challenged energy law to expand its scope. This theme is particularly salient in the face of global climate change, but it persists for localized environmental harms as well. In addition, the concepts of uncertainty as well as risk assessment, perception, and management inform and even dictate modern approaches to energy law and policy.
- Public Governance. Finally, who should govern energy resource production, delivery, and use? Is federal regulation necessary and when? Do the land use implications of many energy issues, and the localized nature of the impacts of electricity generation and fuel extraction, mean that state and local governments will always play a major role? How should international challenges be met? The reality is that energy project developers and regulators are often forced to navigate what one of us and his coauthor have called “shared regulatory space” – situations where two or more agencies share jurisdiction over the same issue. Modern energy lawyers cannot effectively address most major problems in the industry today without understanding a multitude of governance schemes—and without knowing how to argue for changes in the balance of those schemes.
Although the particular issues that modern energy lawyers focus on today differ from those that may have been important to energy lawyers thirty years ago, we believe that there is a durability to these themes: They will inform the future of energy law too, even as the particular energy resources and issues that hold the attention of lawyers inevitably change. With Chapter 1’s theme-based framework in place, we provide a way to organize and understand the many topics presented in the remainder of the book.
Like previous editions, this casebook is intended to be used in an Energy Law survey course, but the materials in the book are rich enough that they can also be adapted to a course or seminar covering renewable energy, oil & gas, electricity regulation, and advanced topics in environmental and climate change law. Previous editions of the casebook have been used at more than 60 law schools, and we intend the new edition of the casebook to provide a pedagogical window that readily can be adapted to a variety of courses and teaching styles as issues in energy continue to change. Further, we respond to the changing face of legal education by incorporating extended problems, case studies, and other practice-oriented materials throughout the book.
We encourage anyone who is interested in reviewing or using chapters from the new edition prior to its publication to contact one of us. Our Table of Contents includes:
Chapter 1: Introduction to Recurring Themes in Energy Law
Chapter 2: Public Utility Principles and an Overview of the Electric Power Industry
Chapter 3: Coal Production
Chapter 4: Oil and Gas Production
Chapter 5: Regulating Externalities from Fossil Fuel Power Generation
Chapter 6: Hydroelectric Power
Chapter 7: Nuclear Power
Chapter 8: Utility Ratemaking Basics and Case Study
Chapter 9: Open Access in Oil and Gas Markets
Chapter 10: Electric Power Markets
Chapter 11: Renewable Power
Chapter 12: Renewable Project Development Case Studies
Chapter 13: Conservation and Efficiency
Chapter 14: International Energy Markets
Chapter 15: Energy Use in Transportation