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Going Off the Record

Lawyers say what they really think about changing policies.

Fortnightly Magazine - November 2009

The climate is a global concern, but the states have been on the forefront of developing new ways to address these questions. The states are innovators.”

Hedging for Dollars : “I worry about the new markets. Even the FTR [financial transmission rights] markets, which are intended to provide a hedge for load-serving entities, tend to allow players to siphon off big bucks. That’s an issue.”

On Climate Change

Carbon is the New Black : “Federal climate regulation is almost irrelevant. The states started addressing the issue years ago, and on a strategic level companies already have been forced to deal with it. So what will change? We’ll get some clarity around what to do with coal, and probably some coal projects now will be able to go forward, knowing how much the carbon tax will cost them. But if you think about it, it will be great for lawyers because it will take a while for the regulations to shake out.”

Green Greed : “Obviously climate regulation creates tremendous legal opportunities, everything from intellectual property protection for newly developed technologies to project financing for major investments.”

No Safe Harbor : “Plaintiffs that bring climate change nuisance lawsuits mostly want to send a political message, to put pressure on Congress and the EPA. We might assume that once federal carbon regulations take effect, most of those complaints will be withdrawn or be displaced by statute. But with the federal district court decision in North Carolina v. TVA , [in which the judge ordered TVA to install scrubbers at plants that already were compliant with the Clean Air Act,] plaintiffs might continue bringing nuisance lawsuits, alleging injury from emissions even if they don’t violate EPA regulations.”

Spittin’ in the Wind : “If we can’t persuade China and India to build cleaner generation even though it’s more expensive, then we’re just putting off the inevitable.”

On Energy Strategy

Policy By Piecemeal : “Ironically, the Bush administration through inaction allowed states to step into the void and set America’s national energy policy, via RPS. There never was a national debate about that policy, and it was based on a lot of misinformation and ignorance. Yet now as a nation we’re following this energy policy, by default, as opposed to doing concerted thinking to develop our national strategy.”

Choking on Green : “I’m personally worried about some of the efforts to restrict development to only green infrastructure. Green-only efforts seem to be gaining strength, and the idea is very, very bad. Given the cost increases ratepayers already are facing, it’s irrational to limit the industry’s options. Also it ignores the laws of physics. Among other things, you need not-green power to back up green power.”

Manhattan Project 2.0 : “When America decides it needs something for its national defense, it doesn’t look to the private sector to pick up risks. Now, it couldn’t be clearer that the present regime is inadequate to build new transmission, because we need it and we’re not doing it. I’m not a socialist, but