Net Legal Power

Authors

Steven Ferrey

Library of Congress Authority File

http://id.loc.gov/authorities/names/n79122466

http://id.loc.gov/authorities/names/n89624138.html

Document Type

Article

Abstract

Law will determine the future of the planet. Net metering, the regulatory mechanism employed by 88% of U.S. states to promote renewable power and to reduce carbon emissions from electricity production, is now legally challenged. The legality of recent carbon control policies is expected to head to the Supreme Court.

The law governing electric power, and electric power itself, is distinct from everything else. The physics of electricity do not align with the law. Electric power, alone among all forms of energy, is the only energy which cannot be stored: The supply of power produced must instantaneously second-by-second exactly match the demand for power, or the power grid collapses as it did in the eastern U.S. in 2003. Rapidly expanding use of intermittent net metered solar and wind sources pose a new concern for the maintenance of a reliable and stable power grid.

Well-established precedent requires equitable and precise allocation of the costs of every power transaction. Without states undertaking this cost analysis and setting rates, there is a missing legal link. Only two of the forty-four states that employ net metering of renewable power have done this analysis. Without doing so, the other forty-two states leave their primary climate change policies and renewable energy incentives vulnerable to challenge and reversal as soon as those states enact them.

This Article examines the legal and physical differences between electricity and everything else that the law addresses. This Article navigates the legal “trip wires” around power, dissecting the disparate renewable power net metering policies in 41 states. We “follow the money” to examine who directly benefits and who indirectly pays for net metering, as a matter of law, and how this affects this cutting edge of government policy. States are now challenged on their net metering policies.

Legal vulnerabilities in major policies require solutions: States can, but most haven’t yet taken the steps to, immunize their renewable energy programs against legal challenge. This is critical to meaningfully address climate change. This Article’s final sections map a legal solution and chart the missing legal link.

Recommended Citation

Steven Ferrey, Net Legal Power, 53 San Diego L. Rev. 221 (2016).
Available at: https://digital.sandiego.edu/sdlr/vol53/iss2/2