Restructuring a Green Grid: Legal Challenges to Accommodate New Renewable Energy Infrastructure

Article excerpt

     A. Overview of the New Grid
     B. Stimulus and Response
     A. What Really Is the Grid?
     B. What and Where: Ensuring that the Power Resource Mix Supports
        Greater Reliance on Renewable Power
     C. Transmission Infrastructure Extension Supporting a
        More Sustainable Power System
     D. Regulatory Mechanics for a More Renewable, Decentralized Grid
     A. Constitutional Issues Confronting State Renewable and
        Carbon Regulation
     B. Feed-In Tariffs to Promote Grid-Connected Renewable Power
     C. Renewable Portfolio Standards for the New Renewable Grid


A. Overview of the New Grid

Let me roll back the clock for a decade. The energy situation is both quite distinct from and very similar to how it was five years ago. The economy, obviously, is in quite different shape. Energy is very different than it was five years ago. In 2004, global warming was not much in the nomenclature of energy policy--the European Union Emission Trading System (ETS) of carbon control, the first carbon control in the world, had not yet started; (1) the Kyoto Protocol had not been ratified by the necessary percentage of countries to make it effective; (2) and no one had won a Nobel Peace Prize for highlighting carbon imperatives. (3) In another sense, things are similar. The long-term solution to global warming has not changed (4)--and it is actually a good thing that there is some certainty in the solutions for global warming. There needs to be a sound solution for a political, legal, and technological response--and there is. (5) In fact, the technological response of renewable energy infrastructure to limit carbon emissions has been available for three decades; it is the legal and policy response that has proved more elusive and has not been realized. (6)

This Article focuses on how the new power grid must be modified and the legal and policy challenges this poses. This is a two-headed question. In a straightforward regard, the grid is a strand of copper and aluminum wires that connects the places where power is produced to society. (7) It is a transportation network. But in a more interactive sense, the power grid is the network of thousands of generators and hundreds of millions of consumers interlinked by legal and regulatory protocols and procedures that interconnect a virtual electronic web that powers and energizes modern society. (8) This system must remain perfectly balanced second by second, or the system collapses, as it did in the northeastern United States in 2003. (9)

In this regard, to adapt to renewable power use in the grid there are issues of changing the backup power resources and reliability of the grid, as well as more intelligent demand for power resources, when accommodating the new, intermittent character of renewable resources. It has implications on both ends of the grid--in the mix of supply resources and in the use of power by consumers of power. These legal and regulatory issues are the more challenging aspects of the new grid, which this Article explores.

Let me roll back in time those five years with a specific frame of reference. I spoke at an energy symposium at Duke Law School about five years ago on the great topic of the Power Future. (10) I was allowed to be a futurologist, which is a great assignment. In that presentation and the article that followed, I took license to identify twelve trends that would change the future of electric power production and use in the United States as set forth in Table 1. (11) They were: 1) increasing vulnerability to the supply of fossil fuels, including natural gas; 2) depletion of supplies of economically recoverable fossil fuels; 3) relative inefficiency of U.S. energy use on a global scale; 4) mounting concern about environmental degradation; 5) increasing concern about terrorist threats to energy security; 6) vulnerability of the centralized transmission and distribution system; 7) choices about whether we transport natural gas fuel or produce electricity; 8) the need for greater reliability of the system; 9) differentiation of the needs for higher digital quality electricity for some uses; 10) inconsistent state-level incentives for renewable energy; 11) deregulation and restructuring in eighteen of the fifty states; and 12) globalization of energy markets and environmental impacts. …