Hydro Law and the Future of Hydroelectric Power Generation in the United States

Article excerpt

I. SETTING THE STAGE: HYDRO TRIUMPHS BUT ITS MARKET SHARE STEADILY DECLINES ....................... 1727

A. The Pros ....................... 1734

B. The Cons ....................... 1735

1. Fish Loss ....................... 1736

2. Land Loss and Scenic Impairment ....................... 1737

3. Pollution and Aquatic Ecosystem Modification ....................... 1737

4. Climate Change ....................... 1738

5. Increased Competition for Water ....................... 1742

6. Aging Infrastructure ....................... 1743

II. THE ENVIRONMENTAL-RECREATIONAL-TRIBAL NETWORK OF CONSTRAINTS .......................1744

A. Mitigation of Lost Fish Runs Pre -???? and ESA ....................... 1745

?. ???? and ESA Change the Game ....................... 1749

C. Parity for Fish and White Water Rafters in FERC Licensing ....................... 1752

III . FROM WORKING RIVERS TO RIVERS THAT WORK ....................... 1755

IV. HYDRO'S FUTURE ....................... 1758

A. Is the Capacity There? ....................... 1759

B. The Small-Scale Upgrade Scenario ....................... 1760

C. Big Hydro ....................... 1763

1. Private Financing of Project Upgrades ....................... 1763

2. Integrating Hydro Production with the Environmental Protection Network ..........1764

V. CONCLUSION ..........1766

Hydroelectric energy ("hydro") is the oldest major source of noncarbon, renewable energy in the United States. For three reasons, increased hydro generation should be a major element of any national climate change and energy-security policy designed to promote the greater use of renewables to help the country transition to the production of sustainable, i.e., noncarbon-based, energy. First, hydro is relatively clean because it does not cause air pollution or substantial greenhouse gas emissions.1 Second, hydro is relatively reliable.2 Third, hydro can help wean the United States from its dependence on imported and often politically unstable hydrocarbon sources of energy,3 because the resource is widely available, and substantial undeveloped capacity exists.4 In addition, many nations in Africa, Asia, and Latin America, and Canada are investing heavily in new hydro facilities.5 The Energy Information Administration ("EIA") projects that worldwide hydro -generating capacity will grow at a rate of 2% from 2008 to 2035.6 However, in the United States, hydro is treated as the stepchild of renewable energy law and policy. Given hydro's benefits, it is logical to ask: is the United States as out of step with world energy policy as it is with climate change policy? The current expert consensus answer is no: increased hydro generation will not be a major component of any carbon or noncarbon U.S. energy future. Hydro currently supplies 42% of the 7% of domestic energy production generated by renewable resources.7 Most "authoritative" energy scenarios suggest that, for the foreseeable future, hydro's share will be flat or experience only modest increases.8

The EIA estimates that the United States' hydro-generating capacity is projected to grow at a rate of only 0.1% per year. Initially, this conclusion is paradoxical because the International Energy Agency ("IEA") estimates that the United States has tapped only 16% of its potential hydro production.9 The conventional answer to this paradox is that hydro is nonetheless a developed technology, has high environmental costs compared to wind and solar energy, and is both a climate change adaptation option and an energy source stressed by climate change. Therefore, the prevailing consensus is that there is no need to provide substantial incentives for its expansion, like those available for wind, solar, biomass, and other alternative renewables.10 To borrow from equilibrium ecology, hydro has reached its climax stage.11 This assumption is reflected in state renewable portfolio standards legislation and federal tax incentives,12 which exclude conventional hydro from definitions of renewable energy. …