Should Large Hydroelectric Projects Be Treated as Renewable Resources?
Coen, David C., Thormeyer, Robert J., Energy Law Journal
Synopsis: President Obama has made the passage of a clean-energy standard one of his top domestic priorities. Such a standard would presumably be broader than a "renewable" energy standard by allowing more traditional forms of energy, such as nuclear, to be included in the program. As the Administration and the U.S. Senate move forward on this proposal, many have questioned the role hydropower resources, particularly large projects, could play. Anticipating this debate, the National Association of Regulatory Utility Commissioners (NARUC or Association) in November 2010 passed a resolution recognizing hydropower as a potential renewable resource, provided specific hydro facilities meet certain standards. This resolution could help shift the debate in Congress by providing a strong nonpartisan endorsement of hydropower's potential as a renewable or clean energy resource. Because hydropower is already widely used in the U.S., its inclusion in a clean or renewable energy standard will make it easier for states and utilities to meet the requirements of any such federal policy. This article describes the status of hydropower in existing state renewable portfolio standards and demonstrates the importance of the NARUC resolution in the Congressional debate.
President Barack Obama came to the White House in 2009 promising a number of significant domestic reforms. From new health care regulations to stronger Wall Street oversight, the President moved quickly on several key initiatives. One of these domestic initiatives remains the reduction and limitation of carbon emissions from power plants, cars, and other polluting sources. Initially, the President and the Democratically controlled Congress in 2009 and 2010 proposed sweeping legislation that would implement a so-called "cap-and-trade" system for reducing carbon emissions. Although the House passed such legislation in mid-2009,1 the Senate could never get a bill onto the floor for a vote.2
So despite successes with the health care and Wall Street reform efforts, President Obama has yet to succeed on his climate change proposals. After the legislative defeat in the Senate, along with the Republican-takeover of the House of Representatives following the 2010 mid-term elections, President Obama changed gears. Instead of pursuing a massive new economic device for curtailing carbon emissions, the President scaled back his expectations and called on Congress to pass "clean energy" legislation that will focus on renewable or clean resources, with the goal of having clean energy provide about 80% of the nation's electricity.3 While the President did not get specific in his description of what resources would be included in a "clean-energy standard," it is likely that it will include traditional renewable projects, nuclear energy, "clean" coal, and, perhaps, hydropower.
II. FEDERAL INACTION LEADS TO STATE LEADERSHIP ON CLEAN ENERGY DEVELOPMENT
As of this publication date, Congress had not acted on this proposal.4 Fortunately, 30 states, including the District of Columbia, have acted by implementing their own renewable energy standards (RPSs).5 This diverse group of state governments, from Washington in the Pacific Northwest to North Carolina in the Southeast, moved well before the federal government. Following Supreme Court Justice Brandeis's advice, these states acted as "laboratories of Democracy,"6 initiating new and innovative proposals that both promote the burgeoning development of renewable energy resources and help clean the environment. These RPSs vary depending on a state's local resources, but all share the same goal of adding cleaner energy resources into the portfolio mix.
Most of the existing state renewable programs include typical clean resources: wind, solar, biomass, photovoltaics, etc. As more state legislatures adopted renewable energy standards, a debate over the role of hydropower as a clean, renewable resource emerged. …