Environmental Law and Fossil Fuels: Barriers to Renewable Energy

INTRODUCTION 1680I. CONTEXT: LAGGING LAW AND LEGAL TRANSITIONS 1683A. Systemic Barriers 1684B. Evolving Legal Fields 1685C. Transition Side Effects 1688II. PRIMARY BARRIERS TO RENEWABLE ENERGY 1690A. Lagging Affirmative Law for Renewables 1693B. Law for the Pre-renewables Energy Sector 1696III. BARRIERS AT THE INTERSECTION OF ENERGY AND ENVIRONMENTAL LAW 1699A. Structural Support for Fossil Energy 1701B. Statutory Accommodations to Fossil Energy 17041. Air Emissions: Clean Air Act 17052. Waste: Resource Conservation and Recovery Act 17063. Surface Water Pollution: Clean Water Act 17084. Underground Water Pollution: Safe Drinking Water Act 17095. Land Contamination: Comprehensive Environmental Response, Compensation, and Liability Act 17106. Public Accountability: Emergency Planning and Community Right to Know Act 1710C. Fossil-Favoring Regulatory Implementation and Current Reform 17111. Shifting Implementation of Existing Statutory Authority 1711a. Hazardous Air Pollutants: Mercury and Air Toxics Standards 1712b. Emissions from Oil and Natural Gas Wells: Oil and Natural Gas Air Pollution Standards 17152. Retaliatory Legislation: Targeting EPA .... 1717D. Implications 1719CONCLUSION 1721Traditional energy policy has outlived its useful life.- Joseph P. Tomain1INTRODUCTIONRenewable energy is gaining momentum around the globe,2 but the United States has only just begun to change its energy trajectory away from fossil fuels. Today, only about 10% of electricity in the United States is generated from renewable energy, and most of that comes from hydroelectric power plants that have been operating for many years.3 The U.S. Energy Information Administration projects 30% of new capacity over the next twenty years will utilize renewable resources, without significant changes in U.S. energy policy, but at that pace renewable energy will still account for only 16% of generated electricity.4 These prospects stand in sharp contrast to the immense potential that exists in U.S. renewable resources which, according to the National Academy of Sciences, "can supply significantly greater amounts of electricity than the total current or projected domestic demand."5 Yet those resources remain "largely untapped today."6This Article is concerned with renewable energy's too- slow transition and with how existing legal regimes work to preserve fossil energy dominance. The normative assertion that the transition is occurring too slowly proceeds from four related premises: First, that climate change threatens human well-being and the environment and is largely the result of unsustainable overconsumption of fossil energy. Second, that a transformation of the energy sector is possible with existing resources and technologies. Third, that policies to promote renewable energy in the United States have so far been adopted and sustained inconsistently, with federal progress trailing the states. And fourth, that law and policy responses to curtail fossil energy use are needed immediately to avoid the worst risks associated with climbing atmospheric temperatures.The relationship between law and renewable energy development is complex and often contradictory. Certainly law serves as a catalyst - legal efforts have resulted in expedited federal and state approval for renewable projects, in federal and state financial incentives for renewable energy, and in the renewable portfolio standards ("RPS") that mandate renewable energy generation in a majority of states.7 At the same time, law can also serve as a barrier to renewable energy, even where it does not directly burden or prohibit the use of renewable resources. …