ItemRegulating Toward (In)Security in the U.S. Electricity System(2017-06-19) Trahan, Ryan ItemCracking the PPA: Renewable Energy Projects and Energy Storage(2017-05-01) Diffen, Becky H. ItemThe Agreement to Arbitrate and the “Applicable Law”(2017-04-18) Rau, Alan S. ItemEverything Under the Sun: A Guide to Siting Solar in the Lone Star State(2017-04-13) Smith, Ernest E. ItemIdeology vs. Interest Group Politics in U.S. Energy Policy(2017-03-27) Spence, David B.; Adelman, David E. ItemWhy Oklahoma Nuisance Lawsuit Deserves Your Attention(2017-03-20) Diffen, Becky H. ItemWanted: Dead or Alive – EPA’s Clean Power Plan Context and Prognosis(2017-02-02) Civins, Jeff ItemRegulatory Highlights – The Year 2016 In Review and Implications for 2017(2017-02-01) Liebmann, Diana ItemRegulating Unprotected Texas Groundwater: The Final Frontier(2017-01-27) Puig-Williams, Vanessa ItemRegulating unregulated groundwater in Texas: how the state could conquer this final frontier(The Texas Water Journal Vol. 7, No. 1 (2016), 2016-12-29) Puig-Williams, Vanessa ItemProtecting Species or Hindering Energy Development? How the Endangered Species Act Impacts Energy Projects on Western Public Lands(2016-11-01) Taylor, Melinda E; Webb, Romany; Puig-Williams, Vanessa ItemProtecting Species or Endangering Development? How Consultation Under the Endangered Species Act Affects Energy Projects on Public Lands(2016-08-03) Taylor, Melinda; Webb, Romany; Puig-Williams, VanessaExecutive Summary Throughout its forty-three-year history, the Endangered Species Act (“ESA”) has been one of the most celebrated environmental laws but also one of the most reviled. After passing with strong bi-partisan support in 1973, the ESA has recently faced growing opposition, amid concerns that it has failed to adequately protect species, while unreasonably impeding economic development. Much of the criticism has been directed towards section 7 of the ESA, which requires federal agencies to ensure that actions they undertake or authorize do not jeopardize threatened or endangered species, by consulting with the U.S. Fish and Wildlife Service (“FWS”). Industry groups have argued that the consultation requirement frequently stops or delays much needed energy, transportation, water supply, and other projects. This study seeks to assess the impact of consultation, under section 7 of the ESA, on energy development on public land. To this end, the study analyzes 179 consultations undertaken between FY2010 and FY2014 with respect to oil, gas, solar, and wind energy projects on public land managed by the Department of Interior’s Bureau of Land Management (“BLM”). Basic information about each consultation, including a brief description of the project involved and a list of species affected, was obtained from FWS’s Tracking and Integrated Logging System. We also reviewed the biological opinions and concurrence letters issued by FWS and, for a subset of consultations, interviewed agency staff and industry representatives involved. Key findings from the analysis include: A relatively small number of energy projects authorized on federal lands between FY2010 and FY2014 went through the consultation process. The majority (eighty percent) of consultations that were carried out involved oil and gas drilling projects. Fifteen percent of consultations related to solar energy projects and five percent to wind energy projects. Only a small proportion (ten percent) of all oil and gas drilling projects approved by BLM from FY2010 to FY2014 were subject to consultation. In contrast, eighty-two percent of BLM approved solar energy projects and seventy-one percent of BLM approved wind energy projects underwent consultation. Most of the energy project consultations undertaken between FY2010 and FY2014 were completed within the 135 day time limit set in the ESA. There was, however, often significant back-and-forth between FWS, BLM, and the project proponent prior to the official start of consultation. This is a concern for industry, as pre-consultation discussions can add significant time to the review process and thereby lead to project delays. The need to consult can also give rise to significant uncertainty for industry. The assessment of project effects and the measures required to mitigate those effects often differs markedly between, and even within, FWS offices. Similar projects may, therefore, be assessed differently depending on the FWS staff handling the consultation. FWS has recently taken steps to address industry concerns regarding the potential for project delays and inconsistencies in the review process. To this end, FWS has issued a number of programmatic biological opinions, which cover multiple similar actions. Where a project is covered by a programmatic biological opinion, consultation tends to proceed more quickly, and there is less need for pre-consultation discussions. The existence of a programmatic biological opinion can also greatly reduce the complexity of consultation and generally leads to increased certainty for project developers. ItemTen Facts Every Policy-maker Should Consider Before Giving Cost-benefit Analysis Veto Power(2016-06-30) Neuman Lee, Mark ItemSouth of the Border, Down Mexico Way: The Past, Present, and Future of Petroleum Development in Mexico, Part I(2016-06-30) Anderson, Owen L.Mexico is estimated to have 9.8 billion barrels of untapped oil reserves, or about 10 percent of the world’s crude oil; however, much remains undeveloped and production is declining as a result of dysfunction in the structure of Mexico’s petroleum regime. Until recently, Mexico’s Constitution and laws limited oil and gas activities to those of its state oil company, Petróleos Mexicanos (Pemex), which struggled to invest in new drilling and technology. In 2013, however, Mexico reopened its petroleum sector to foreign investment. Although 75 years in the making, Mexico is taking a bold new path toward developing its petroleum resources. Mexico stands to benefit from foreign investment and new technology to develop its remaining resources, which include shale deposits, deepwater reserves, and reserves only recoverable through modern enhanced recovery techniques. This two-part article has two objectives: Part I reviews the history of petroleum in Mexico—much of it unhappy—as a reminder of the long and tortuous pathway that led to Mexico’s current initiative to open its petroleum sector to foreign investment. The Mexican economy was built on oil in the early 1900s, but a combination of nationalism, petroleum-investor arrogance, and eventual overdependence on petroleum revenues all served to undermine the Mexican oil industry. It is important for petroleum investors to understand and appreciate this history in order to ease the transition of new oil production in Mexico. At the same time, the people of Mexico should take a long-term, forward-looking view of Mexico’s oil and gas future, which should be bright. Part II, published in another journal, discusses the current reform of Mexico’s petroleum laws, including its initiative to resume direct foreign investment in the upstream petroleum sector.§ § Owen L. Anderson & J. Jay Park, South of the Border, Down Mexico Way: The Past, Present, and Future of Petroleum Development in Mexico—Part II, 61 ROCKY MTN. MIN. L. INST. 20–21, 20–22, 20–33 to 20–34 (2015). ItemGateway-Schmateway: An Exchange Between George Bermann and Alan Rau(2016-05-19) Bermann, George; Rau, Alan S.What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and internatonal arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium on International Arbitration and the Courts. The issue begins with a transcript of a moderated exchange between Professor Bermann, the Reporter for the American Law Institute’s (ALI) ongoing Restatement (Third) of the U.S. Law of International Arbitration project, and Professor Rau, an ALI-appointed Advisor on the project. Professor Coe poses questions to both scholars that focus on selected issues that are characteristic of matters discussed during the ALI drafting and consultative process, especially so-called “gateway” matters like competence-competence. This exchange revealed several questions on which Professors Bermann and Rau diverged – namely, arbitrability of scope issues, the concept of delegation, and whether an express remedy limitation in a contract should be treated as a limit on a tribunal’s authority. For those interested in the iterative process that creates an ALI Restatement, this is a must read. ItemBG Group and “Conditions” to Arbitral Jurisdiction(2016-02-25) Rau, Alan S.; Bjorklund, Andrea K.Although the Supreme Court has over the last decade generated a robust body of arbitration caselaw, its first decision in the area of investment arbitration under a Bilateral Investment Treaty was only handed down in 2014. BG Group v. Argentina was widely anticipated and has attracted much notice, and general approval, on the part of the arbitration community. In this paper we assess the Court’s decision from two different perspectives—the first attempts to situate it in the discourse of the American law of commercial arbitration; the second considers it in light of the expectations of the international community surrounding the proper construction of Conventions between states. Our initial goal had been to write jointly, with the hope that we could bridge our differences to find, if not common, at least neighboring, ground. On some points we did so, but ultimately our divergent appreciations of the proper way to interpret the condition precedent in the investment treaty in BG Group overcame the idealism with which we commenced the project. Nonetheless we have decided to present the two papers together to emphasize the dichotomous approaches to treaty interpretation that two moderately sensible people, who inhabit overlapping but non-congruent interpretive communities, can have. ItemThe Regulatory Contract in the Marketplace(2016-02-25) Spence, David B; Hammond, EmilyFor decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract—a nineteenth-century concept that stands more for ordered regulation than competitive markets. This Article examines how piecemeal pursuit of two energy visions has produced mismatches between rapidly evolving markets and governance institutions that cannot change as quickly. To better evaluate these mismatches, the Article develops a framework that accounts not just for market operation and environmental externalities, but also the technical constraints of grid operation and electricity fuels. Relying on the experience of nuclear power, the Article creates an account of how a fuel source can be priced out of the market despite its apparent advantages in reliability and air emissions. With this understanding, the Article evaluates the political economy and governance challenges associated with diverse policy options aimed at better capturing valuable attributes of electricity. Ultimately, this analysis furthers our understanding of the regulatory contract in the marketplace, suggesting an updated vision for its role in mediating the competing goals for electricity markets. ItemSouth of the Border, Down Mexico Way: The Past, Present, and Future of Petroleum Development in Mexico-Part II(2015-12-31) Anderson, Owen L.