On August 8, 2005, President Bush signed into law the most sweeping energy bill since the 1992 Energy Policy Act.1 Weighing in at a hefty 1,724 pages, the Energy Policy Act of 2005 (EPAct 2005 or the Act)2 includes provisions on numerous subjects including energy efficiency, hydrogen, climate control, oil and gas, and renewable energy. The final product was over 10 years in the making; during its extended gestation, EPAct 2005 was the source of many legislative battles. Due to the span of time over which Congress considered an energy bill, and procedural maneuvers employed to ensure the enactment of EPAct 2005, the Conference Managers' Report accompanying H.R. 6 (the bill that would become EPAct 2005) was almost, if not wholly, unprecedented in its brevity.3 It does not explain why some measures were successful whereas others, such as a federally mandated Renewable Portfolio Standard4 (RPS), failed to make it into the law.
But was a mandate necessary to foster the purposes underlying the numerous attempts to enact a RPS, and to spur on the growth of renewable energy markets? When the sum of other federal, state, regional, local, and utility-specific activities in the renewable arena is calculated, the answer is no. Activities on a number of fronts supplant the need for a federal RPS. Moreover, the flexibility inherent in many such programs, as well as in the consideration procedures established under the Electricity Title XII of EPAct 2005,5 mean that these programs and procedures are much more likely to realize the benefits from renewables while providing consumers with reliable, cost-effective energy.
At the end of the day (at least for now), congressional efforts were unsuccessful, but programs in furtherance of their objectives are already in place. The purpose of this article is to provide a discussion about how such programs more effectively support renewable energy than would a federal RPS. Section II addresses the exclusion of a RPS from EPAct '05, highlighting legislative debates that preceded the enactment of EPAct '05. Section III discusses activities at the federal, state, local, and individual utility levels that supplant the need for a federal RPS. Lastly, Section IV proposes that renewable programs that are flexible in their design, implementation, and consideration, maximize the benefits of renewables in a cost-effective and reliable manner.
II. THE ENERGY POLICY ACT OF 2005 DOES NOT INCLUDE A FEDERALLY - MANDATED RENEWABLE PORTFOLIO STANDARD
Over the past ten years, Congress has grappled with comprehensive energy legislation.6 The stated purpose of the final bill, EPAct 2005, was "[t]o ensure jobs for our future with secure, affordable, and reliable energy."7 The Administration strongly supported H.R. 6, saying that it would "benefit consumers by increasing energy supplies while protecting the environment . . . . [It would] reduce our dependence on foreign sources of oil by increasing the use and diversity of renewable energy sources."8 The Administration noted that the Electricity Title would promote its objectives of improved reliability and increasing supply.9 But the Administration opposed any effort to set a national RPS, as "these standards are best left to the States. A national RPS could raise consumer costs, especially in areas where these resources are less abundant and harder to cultivate or distribute."10
RPS proponents had attempted to include a federal mandate in earlier versions of energy legislation. 11 A RPS, it was argued, would promote energy efficiency and conservation,12 would enhance our efforts to become less dependent on foreign oil,13 and would provide consumers with affordable and reliable electricity. 14 These purposes certainly appeared to dovetail with the brief statement of purposes for EPAct 2005. But for all of that, a federally mandated RPS was extremely controversial, as evidenced by the debates that occurred on the Senate floor regarding an amendment to H. …