Garrick B. Pursley & Hannah J. Wiseman, Local Energy

• Citation: Vol. 60 No. 4
• Publication year: 2011

LOCAL ENERGY

Garrick B. Pursley* Hannah J. Wiseman**

ABSTRACT

At a point in the future that is no longer remote, renewable energy will be a necessity. The construction of large renewable energy farms is central to a transition away from fossil fuels, but distributed renewable energy technologies—wind turbines in backyards and solar panels on roofs—are immediately essential as well. Widespread deployment of distributed renewable technologies requires rapid innovation led by renewable energy pioneers—individuals who act as market leaders and prove to their neighbors that these new energy devices are safe and worthy of use. Existing law and the very structure of governmental authority over energy is ill-suited to this energy transition and stifles the efforts of these pioneers. Public bodies must therefore embark upon a substantial overhaul of what we call land-energy rules—legal requirements governing the construction and physical location of renewable technology. This Article assesses the relative institutional capacities of different levels of government to determine which will best ensure that land- energy rules enable a drive toward distributed renewable energy and concludes that the powers of municipal governments must be unleashed. Innovation will occur from the ground up, and municipalities must actively work to enable the next great energy transition in this country: a move toward energy produced from the sun, the wind, the earth’s internal heat, and other renewable sources.

* Assistant Professor of Law, University of Toledo College of Law.

** Assistant Professor of Law, University of Tulsa College of Law.

The authors began this project when they were Emerging Scholars at the University of Texas School of Law and are grateful to Professors Sara Bronin, Michael Burger, Ken Kilbert, Geoff Rapp, Dan Rodriguez, and Ernie Young, and to Ryan Trahan of Paul, Hastings, Janofsky & Walker LLP for helpful comments on this manuscript. The authors developed the title of this Article during discussions of its principal themes and before becoming aware that an entity outside of the legal academy, with which the authors are unaffiliated, has “Local Energy” as its name. See LOCAL ENERGY, http://www.localenergy.org (last visited May 1, 2011).

INTRODUCTION 878

1. INNOVATION 884

   1. Past Energy Innovations 884

   2. The Need for a New Energy Transition 891

      1. Why Renewables? 891

      2. Why Distributed Renewables? 897

   3. Requirements for Widespread Deployment of Distributed Renewables 900

      1. Energy Entrepreneurs 901

      2. Existing Local Land-Energy Rules 907

         1. Federal Land-Energy Policy 909

         2. State Directives 911

         3. Local Initiatives and Barriers 914

2. INSTITUTIONS 916

   1. Theoretical Dilemmas 916

      1. The Efficiency Debate 918

      2. The Politics Debate 922

   2. Allocating Authority for Distributed Renewables 931

      1. Local Institutional Advantages 935

      2. Local Political and Technological Dynamics 940

         1. Entrepreneurs 941

         2. Innovation 946

      3. Local–State Dynamics 948

      4. The Permissibility of a Federal–Local Approach 951

CONCLUSION 955

INTRODUCTION

The strength of a nation lies in its power—increasingly, not just its political power, but its access to energy. Without abundant energy, economies do not move,1 progress slows, and inspiration stagnates. By these measures, American power is lagging behind the world,2 and in many respects, we are moving backward. The antiquated American energy infrastructure needs

1. Benjamin S. Warr et al., Increase Supplies, Increase Efficiency: Evidence of Causality Between the Quantity and Quality of Energy Consumption and Economic Growth 16–17 (INSEAD Soc. Innovation Ctr., Working Paper No. 2009/22/EPS/ISIC, 2009), available at http://knowledge.insead.edu/doc.cfm?cd=41726.

2. Keith Bradsher, A High-Speed Economy, N.Y. TIMES, Feb. 13, 2010, at B1 (“Other countries aren’t

   waiting,” explained President Obama, discussing clean energy and high-speed rail developments. “They want those jobs. China wants those jobs. Germany wants those jobs. They are going after them hard, making the investments required.” (internal quotation marks omitted)).

   massive revision to establish a system powered substantially by renewable resources. We know that the fossil fuels on which the current system depends will be much more difficult to extract in the future;3 we know that dependence on foreign fossil fuel sources creates international relations problems and national security risks;4 and we increasingly accept the reality of the negative environmental impacts of extracting fossil fuels and converting them into power.5 There is broad public support for some kind of governmental response to these problems, but that general sentiment for change is not tied to concrete policy initiatives;6 thousands of small, technical regulatory questions must be addressed to bring about the large alterations of the national energy infrastructure required for salutary policy initiatives. But those inquiries cannot be fruitfully pursued until we have answered the more fundamental question of how the current, dysfunctional allocation of energy policy-making authority may be corrected. Against the conventional wisdom that the national

   scope of the energy problem requires a primarily centralized solution from the federal government, this Article argues that local governments—cities and towns—have one of the most significant roles to play in the transition to renewable energy, particularly in the near term as distributed renewable technologies are deployed. It concludes that municipalities working above a federal regulatory floor are best positioned to foster, through regulation, much of the innovation that will be necessary for this transition.

   
   

   One critical regulatory role that local governments are well positioned to play in the short-term transition to renewables is facilitating the development and adoption of distributed renewable technologies that generate electricity

   
   

3. See infra notes 77–101 and accompanying text.

4. See U.S. Energy Facts, ENERGY INFO. ADMIN., http://tonto.eia.doe.gov/energyexplained/index.cfm? page=us_energy_home#tab2 (last updated Nov. 22, 2010) (explaining that the United States relies on net

   imports for twenty-four percent of its energy).

5. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (IPCC), CLIMATE CHANGE 2007: SYNTHESIS

   REPORT 30 (Abdelkader Allali et al. eds., 2007), available at http://www.ipcc.ch/pdf/assessment- report/ar4/syr/ar4_syr.pdf; infra note 63 and accompanying text; see also Henry Fountain, U.S. Says BP Well Is Finally ‘Dead,’ N.Y. TIMES, Sept. 20, 2010, at A14 (reporting that BP’s failed oil well in the Gulf of Mexico released approximately 205 million gallons of oil into the Gulf).

6. See Michael K. Heiman & Barry D. Solomon, Power to the People: Electric Utility Restructuring and

   the Commitment to Renewable Energy, 94 ANNALS ASS’N AM. GEOGRAPHERS 94, 107 (2004) (noting that “over half of Americans claim they are willing to pay a premium for ‘green power,’” but arguing that market and regulatory failures have made that choice impracticable for most consumers); Anthony Leiserowitz, Climate Change Risk Perception and Policy Preferences: The Role of Affect, Imagery, and Values, 77 CLIMATIC CHANGE 45, 46 (2006) (“Since the year 2000, numerous public opinion polls demonstrate that large majorities of Americans are aware of global warming (92%) . . . and already view climate change as a somewhat to very serious problem (76%).”).

   close to the point of use—paradigmatically the backyard wind turbine and the rooftop solar panel;7 this Article focuses on this role. Accordingly, the Article analyzes legal requirements governing the construction and physical location of distributed renewable devices—what we call land-energy rules. Beyond the

   distributed scale, renewable energy devices like solar panels and wind turbines may be installed in large “farms” that function like existing fossil-fuel-burning power plants in the sense that they generate large quantities of electricity in a single location and then send it over transmission lines to distant consumers.8 Establishing these large facilities requires overcoming economic and regulatory complexities, however; renewable farms are costly, require

   integration into large-scale transmission grids, and may occupy territory that overlaps the borders of several states.9 Distributed renewables, we argue, are just as essential10 as large-scale installations to establishing a stable nationwide energy infrastructure powered substantially by renewable resources, but the distributed generation piece of the energy policy puzzle has been largely ignored by legal scholars.11 This is harmful because distributed renewable energy projects face serious impediments that require immediate attention: consumer uncertainty about their effectiveness and practicality, the need for innovation to make existing technologies effective under a variety of geographic and sociopolitical conditions, and adverse local land use rules.12 Local governments have a crucial role in overcoming regulatory barriers to

   
   

7. See RYAN FIRESTONE & CHRIS MARNAY, ERNEST ORLANDO LAWRENCE BERKELEY NAT’L LAB., DISTRIBUTED ENERGY RESOURCES FOR CARBON EMISSIONS MITIGATION (2007), available at http://eetd.lbl. gov/ea/emp/reports/62871.pdf; WADE CAN., 2010 GUIDE TO DECENTRALIZED ENERGY IN CANADA (2010),

   available at http://wadecanada.ca/doc_index/2010-Guide-to-DE-in-Canada.pdf.

8. See PAUL BREEZE, POWER GENERATION TECHNOLOGIES 186–87, 198 (2005) (describing large solar

   plants); id. at 162–63 (describing wind farms).

9. See, e.g., Heiman & Solomon, supra note 6, at 100–08; Jim Rossi, The Trojan Horse of Electric Power Transmission Line Siting Authority, 39 ENVTL. L. 1015 (2009).

10. See U.S. DEP’T OF ENERGY, THE SMART GRID (2009), available at http://www.oe.energy.gov/ DocumentsandMedia/DOE_SG_Book_Single_Pages%281%29.pdf (noting that distributed generation, as part of an “islanding” system, can allow communities to generate power even when there is no power available from a utility); Hermann Scheer, Solar City: Reconnecting Energy Generation and Use to the Technical and

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