States Are Striving to Implement Full Potential of Energy Storage Systems
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
July-August 2021
Issue
4
Linda K. Breggin

Energy storage is widely viewed as a game changer — an essential component of efforts to modernize the nation’s electric grid. Recognizing the value of storage for integrating renewable energy into the grid, states are mixing and matching approaches in an effort to remove barriers and provide incentives. According to a recent National Conference of State Legislatures report, 27 states approved 77 energy storage measures in 2019 and 2020. Thus far in 2021, four more states have adopted measures.

Storage technologies, like the policies that govern them, are not all alike. The Electric Storage Association, or ESA, categorizes the technologies as: batteries, thermal energy storage, mechanical energy storage, pumped hydropower, and hydrogen energy storage. Each has its own strengths and weaknesses. For example, lithium-ion batteries produce electricity quickly but have limited duration. In comparison, pumped hydropower offers large capacity but can be used in limited locations — and raises environmental concerns, as evidenced by the recent outcry over a proposed facility in New York’s Catskill mountains.

Energy storage technologies offer myriad benefits, in addition to supporting renewables. NCSL explains that storage also “can increase resiliency, provide backup power during power outages, stabilize the grid, lower the cost of meeting peak power demand
[and] reduce transmission infrastructure costs.” And, many of the technologies can be deployed at utility-scale facilities as well as residential and commercial sites.

While many states are advancing energy storage in conjunction with climate initiatives, NYU Law School’s Richard L. Revesz and Burcin Unel have emphasized in their scholarship that “cheaper storage could also facilitate a higher usage of fossil fuels,” and “it is important to design policies that help ensure that the increased use of energy storage leads to a reduction of greenhouse gas emissions.” California, for example, modified its incentive program for self-generation technologies to address the concern that storage had increased its carbon footprint.

Although the federal government and regional market policies govern aspects of energy storage, the ESA emphasizes that state policies are the “primary driver” and central to helping the industry reach its 2030 target of 100 gigawatts of energy storage. Similarly, in announcing its new Storage Advocacy Network, the Solar Energy Industries Association emphasizes that it will be “putting its full weight behind” state policies that advance energy storage, thereby helping to achieve SEIA’s 2030 goal of solar accounting for 20 percent of electricity generation.

To advance energy storage, states are adopting an array of measures that include establishing procurement targets and, in some cases, mandates. As ESA’s Jason Burwen explains, when a state sets a procurement target it helps catalyze action by sending signals to developers, investors, and utilities. Leading the pack is California, which set its first target in 2010. Additional states with targets include Massachusetts, New Jersey, New York, Nevada, Oregon, and Virginia.

States also are updating regulatory requirements developed prior to the emergence of storage technologies. Vanderbilt Law School Professor Jim Rossi explains: “Utilities need to consider storage as an integral part of a cost-effective energy-resource portfolio, but this will depend on states removing regulatory barriers to the integration of storage into the power grid.”

For example, the planning processes used by many utilities to identify future grid investments may rely on models that do not adequately account for the value and role of storage. States such as Colorado, South Carolina, and Virginia now require utilities to consider or include energy storage in their planning processes. In addition, Oregon and South Carolina have adopted measures aimed at ensuring that energy storage systems connect efficiently to the grid.

Also front and center are incentive programs that foster research and development as well as deployment. Some state programs incentivize storage when it is paired with renewables, including Oregon’s rebate program and Maine’s procurement program, or as part of grid modernization efforts, such as New Mexico’s grant program. In other states, including California and Virginia, some incentives are aimed at supporting on-site backup energy systems.

Other states offer various forms of tax incentives (Maryland and New Hampshire) and financing (Illinois and Washington). In addition, some state incentives advance technologies, including programs in Oregon and Washington that support the development of longer-duration pumped hydro storage.

Taken together, these state initiatives are laudable, but their efforts will need to accelerate — and more states will need to jump on the bandwagon — if storage is to realize its transformative potential.

Linda K. Breggin is director of ELI’s Center for State, Tribal, and Local Environmental Programs. She can be reached at breggin@eli.org.

States Are Striving to Implement Full Potential of Energy Storage.

Pro Bono Lawyers Draft Deep Decarbonization Model Laws
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
September-October 2020
Issue
5
Linda K. Breggin

Last year, ELI Press published Legal Pathways to Deep Decarbonization in the United States, a 35-chapter, 1,056-page tour de force edited by Professors Michael Gerrard of Columbia Law School and John Dernbach of Widener Law School. The book outlines more than 1,000 recommendations for federal, state, local, and private actions to reduce greenhouse gas emissions by at least 80 percent from 1990 levels by 2050. The effort builds on the work of the Deep Decarbonization Pathways Project, a consortium of scientific research teams from over a dozen countries.

The editors recognized that their oeuvre may not be user-friendly for time and resource-constrained state and local legislators, and they subsequently embarked on an effort to develop model laws to facilitate codification of the book’s recommendations. According to Gerrard, “We particularly wanted the book to translate into action because it addresses such an important topic.” Dernbach similarly emphasizes that the “idea is to reduce the gap between recommendations and adoption.”

About a dozen model laws are currently available on the Legal Pathways to Deep Decarbonization website. Additional models are added on a regular basis and typically are accompanied by an introductory memorandum.

Dernbach and Gerrard note that they are furthest along on model legislation related to electric vehicle charging infrastructure. Among the models are a state law that addresses condominium (and other common-interest development) covenants that impede the ability to install EV charging stations; a local ordinance that requires municipalities to establish programs for converting to LED street light poles and using the resulting excess electric power to support EV charging stations; a municipal code requirement for EV-ready charging infrastructure in a percentage of new residential buildings’ parking spaces; and a municipal ordinance that requires parking facilities to designate a minimum number of EV parking spaces and charging stations.

In addition to model laws, the website’s interactive database includes enacted and proposed state and local laws, as well as other resources: cross cutting approaches to reducing emissions (such as carbon pricing); energy efficiency, conservation and fuel switching — in buildings, industry, and transportation; electricity and fuel decarbonization; carbon capture and negative emissions; and non-carbon dioxide climate pollutant reductions.

The number of laws in the database is both inspiring and daunting. The “electricity decarbonization” category alone includes over 550 resources — highlighting the value of model laws that distill the best legislative approaches and language into a single structure. To be sure, collecting and making available over 1,800 laws and other resources is a major contribution, and the website allows users to filter searches by topic, jurisdiction, location, and key words. Nevertheless, sorting through voluminous resources is a time-consuming task — and reducing the burden on legislators and advocates is the project’s raison d’être, according to the editors. As Gerrard explains, many states and localities lack resources to develop their own laws and ordinances.

Bob Freeman, a state representative from Nashville, Tennessee, who has introduced environmental and energy-related legislation in the General Assembly, agrees with Gerrard, noting: “State legislators end up spending a lot of time looking at what other states have done — to that end, model legislation is extremely helpful and the easiest way to get legislation enacted.” He also notes that, unlike legislators at the federal level, the likelihood he would compare notes about legislation with his counterpart in a nearby state “is pretty low.”

Freeman highlights another value of model legislation: “It is extremely helpful to businesses if states in the same region use a similar basic framework, as it allows for a more cohesive business environment that lets everybody know what marks they need to meet.”

In his state, Freeman says, it would be hard to pass a cap-and-trade program or put a price on carbon, but he welcomes model laws that would help achieve some of the same goals — even if incrementally. He also urges model law developers to draft not only subject matter-specific legislation but also laws that strengthen the underlying system. He cites, for example, laws that prevent state legislatures from preempting local environmental measures.

The model laws project is supported by an extensive network of pro bono lawyers. Over twenty major law firms and many individuals have volunteered to write implementing legislation for the recommendations in specific book chapters. Dernbach is quick to emphasize, however, that additional assistance is needed. Over a dozen chapters have yet to be adopted by volunteers — and the available chapters are listed under the website’s CONTACT tab.

Pro Bono Lawyers Draft Deep Decarbonization Model Laws.

Concern Over Increased State Pre-Emption of Some Local Initiatives
Author
Linda K. Breggin - Environmental Law Institute
Environmental Law Institute
Current Issue
March-April 2019
Issue
2
Linda K. Breggin

State preemption of local environmental initiatives is on the rise —and that concerns some local governments, advocacy groups, and scholars. The Rockefeller Family Fund’s Local Solutions Support Center explains that local governments have “become a critical source of innovation across a wide array of policy areas” and have “taken the lead . . . in responding to emerging environmental threats,” but “the last seven years has seen an increase in the use of preemption to stop local lawmaking.”

The center contends that this trend is troubling because “for America to progress, cities, counties, and towns must remain hubs of innovation and solutions testing.” The situation has led University of Virginia law professor Richard Schragger to conclude that “American cities are under attack” due to the “explosion of preemptive state legislation.”

Although most preemption statutes address economic issues, such as minimum wage and ride sharing, states have preempted local authority in myriad environmental policy areas as well. These include plastic bag bans and restrictions on concentrated animal feeding operations, pesticides, and genetically modified crops.

Local efforts to rein in fracking through zoning ordinances, ballot measures, and other means are front and center. In a 2017 article, Illinois State University professor Lori Riverstone-Newell reported that local bans had been enacted in 13 states in which fracking was active. Subsequently, eight of those states successfully preempted the local bans (CO, LA, NC, OH, OK, NM, TX, WV). Only two state preemption laws were overturned by courts (PA, NY).

States also are preempting local bans and fees on plastic bags. The National Conference of State Legislatures reports that 10 states have preempted various types of local plastic bag ordinances (AZ, FL, IA, ID, IN, MI, MN, MS, MO, WI).

In addition, Grass Roots Change counts 13 states that have preempted local regulation of animal feed operations (AZ, IA, ID, IL, KS, MI, MO, MS, ND, PA, SC, TN, WI). A Pennsylvania statute, for example, preempts local ordinances that prohibit or limit “normal agricultural operations.”

And, 43 states have preempted local pesticide regulation. 29 explicitly preempt local regulation of pesticides sale or use, and 14 delegate exclusive regulatory authority to a state entity. Furthermore, Beyond Pesticides reports that 17 states preempt local restrictions on genetically engineered crops.

The increase in state preemption reflects today’s contentious political landscape. Columbia University law professor Richard Briffault concludes that the rise in preemption “is closely linked to the partisan and ideological polarization between red states and their blue cities.” The League of Cities agrees and adds to the list: “Lobbying efforts by special interests,” “spatial sorting of political preferences between urban and rural areas,” as well as “single party dominance in most state governments.”

The conservative American Legislative Exchange Council, which supports preemption efforts by providing model state legislation and conducting training sessions for government officials, offers a similar perspective: “Because many state legislatures are strongly committed to ALEC limited government, free market principles, many from Washington, DC, have developed strategies focused on progressive change at the local level.” ALEC’s annual report contends that its American City County Exchange is the “needed barrier to government control and progressive policy at the local level.”

Most scholars agree that from a legal perspective the deck is stacked against localities, as they are political subdivisions of and derive their authorities from states. Yet, a growing body of scholarship focuses on how localities can creatively use the limited legal and political tools available to challenge state preemption ­— whether they are located in home rule states in which they are granted substantial authority or so-called Dillon Rule states in which their authorities are narrower.

But the same scholars also recognize that preemption can be a valuable tool. While conservative organizations emphasize the need for uniform regulation rather than a patchwork of requirements that can be costly for businesses to navigate, the American Constitution Society recognizes that localities can be “parochial and exclusionary” and that “there are fundamental constitutional values that must remain state-wide and national in scope as a baseline.”

The question, however, is not whether preemption is ever appropriate, but whether states are currently overusing it as a political tool — at the expense of local innovation. Although views may differ on the answer to this question, most would agree with a recent Pew Research Center preemption blog post which succinctly predicts: “Expect more conflict between cities and states.”

Are American cities under attack from states as they try to fix local problems?

Concern over increased state pre-emption of some local initiatives.

Do Habitat Conservation Plans Deserve Wider Implementation?
Subtitle
Visionary But Flawed Program Needs to Evolve
An All Lands, All Hands Approach
The Flapping of Butterfly Wings -- 36 Years Later
Incorporating Relevant Laws Into Planning
Bigger May Sometimes Be Better
Mapping Tech Key to Data Apps That Bust Silos
It's All About Finding the Money
It Ain't Broke but It Should Be Fixed
Author
Alejandro E. Camacho - University of California, Irvine
Jim Lyons - Department of the Interior
Lindell Marsh - Center for Collaboration in Governance
T. O'Rourke Bradford - Bureau of Reclamation
Lynn Scarlett - The Nature Conservancy
James R. Strittholt - Conservation Biology Institute
Martin Wachs - University of California
Douglas P. Wheeler - Hogan Lovells-US LLP
University of California, Irvine
Department of the Interior
Center for Collaboration in Governance
Bureau of Reclamation
The Nature Conservancy
Conservation Biology Institute
University of California
Hogan Lovells-US LLP
Current Issue
May-June 2016
Issue
3

There are now more than 700 HCPs nationwide, with additional plans in preparation. While a number of HCPs have been based on a more conventional model of bilateral, single-project permits that merely seek to mitigate harm to listed species, the more noteworthy HCPs are landscapewide and focused on multiple species. These plans each cover hundreds if not millions of acres and even an entire state. As this concept matures, it is outgrowing the ad-hoc way in which plans have been crafted, funded, and managed.

Collaborative Federalism
Author
Thomas S. Burack - NH Department of Environmental Services
A. Stanley Meiburg - U.S. Environmental Protection Agency
NH Department of Environmental Services
U.S. Environmental Protection Agency
Current Issue
May-June 2016
Issue
3

Not your father's reinvention initiative, E-Enterprise for the Environment was developed by a joint state-federal workgroup to move beyond the cooperative model that has characterized environmental protection into a system of shared responsibility among co-regulators.

Restore the Chesapeake
Author
Ridgway Hall - Chesapeake Legal Alliance
Chesapeake Legal Alliance
Current Issue
January/February 2016
Issue
33

The vast bay and watershed include the largest estuary in the country. Efforts to restore its vastly degraded water quality involve a commensurately large response by the Bay States, the federal Environmental Protection Agency, local governments, and the public.

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