Professor explores how cities can switch to low-carbon grid

Tuesday, April 26, 2016

LAWRENCE — Although many cities across the nation have pledged to improve their energy sources to mitigate climate change, they are often stymied by reliance on an electric power industry fighting new policies at the local, state and federal level. A University of Kansas law professor has authored an article detailing innovative approaches of cities and communities to cut carbon emissions and how the efforts will affect energy governance in years to come.

Uma Outka, associate professor of law, authored “Cities and the Low-Carbon Grid,” forthcoming in the journal Environmental Law. The article examines the evolution of cities and the modern electric grid, legal context for cities’ electric power, cites examples of cities making innovative transitions and argues that, increasingly, cities can influence the transition to a low-carbon energy sector.

Boulder, Colorado, is one such environmentally conscious town. More than a decade ago, the city was among the first in America to develop a local agenda for climate change mitigation and even offered support of the Kyoto Protocol for reducing greenhouse gas emissions, even though the United States did not sign the international treaty. Yet in 2013 city leaders realized they were dependent on investor-owned utility company Xcel, which provided more than 75 percent of the city’s power through fossil fuels, primarily coal. To change that, the city is pursuing a public ownership model that would give it local control and flexibility in obtaining power from renewable sources.

"They have been totally dependent on the resource decisions Xcel would make,” Outka said of Boulder. “Reading about that situation made me want to dig deeper into what cities could do on energy use and climate change. It’s a varied landscape, and there’s no one-size-fits-all solution, but I think this transitional moment for the electricity sector presents new possibilities that motivated cities can explore.’”

Boulder voters approved ballot measures in 2011 and 2013 to form a public utility. The city has since been in the process of acquiring generation and distribution infrastructure, while ending its partnership with Xcel.

Minneapolis, Minnesota, faced a similar situation when it realized its Climate Action Plan on cutting greenhouse gas emissions likely couldn’t be met because the city’s utility supplier generated the majority of its electricity from burning fossil fuels. The city determined for several reasons not to form a municipal utility, but it still found a way to make a change when it negotiated a new contract with provider Xcel, forming a City-Utility Clean Energy Partnership designed to be a clean energy collaboration between the city and private utilities. The partnership has been widely touted as a “first-of-its-kind” innovation, Outka said.

However, like Boulder’s approach, the Minneapolis partnership model will not necessarily be possible for every city to pursue.

“People will definitely be watching what happens in Minneapolis,” Outka said. “They took advantage of the expiration of their contract and re-negotiated in an innovative way. The fact that there was an option for the city had to have had an impact in bringing the utility to the negotiating table.”

Outka also shares examples of cities such as Burlington, Vermont, which has succeeded in securing 100 percent of its energy from renewable sources, and San Diego, a major city that has pledged to do the same within 20 years.

She also outlines strategies in use in other cities such as community choice aggregation. Under the approach, where authorized by state law, cities can choose electricity providers and are not limited to investor-owned utilities with territorial entitlement. Cities using the approach can leverage buying power by aggregating local load — possibly­ with other cities — to purchase electricity at lower rates. Depending on program design, cities may also be able to choose their generation sources while still receiving transmission and distribution services from their existing provider. Six states currently have community choice aggregation programs and at least six more are exploring the model.

Within five years of enacting its CCA law, Illinois had more than 600 communities participating, and average customers were saving 25 to 30 percent on electricity costs. By the end of 2013, more than 90 local governments in the state were using CCAs to purchase 100 percent renewable energy for their communities, Outka wrote. States such as Ohio have had similar successes. The study also details community solar and wind/shared renewable programs. Through the programs customers can subscribe with the utility to buy a set amount of their power from solar energy or own or lease a share of remote solar or wind installations.

Both CCA and community power projects also have unique legal hurdles that can make them difficult for certain communities to enact. But, given the success of various models used by cities to transition to low-carbon models, cities across the country are learning that it can be beneficial to explore new ways to reduce fossil fuel-reliant power, and where necessary, advocate for state law changes to facilitate their goals, Outka said.

Outka recently secured a starter grant from The Commons at KU, which is funding a collaboration with Rachel Krause, assistant professor of public affairs and administration, and Ward Lyles, assistant professor of urban planning, all of KU, to further explore energy, climate adaptation and social justice. The researchers will lead a symposium from 9 a.m. to 3:30 p.m. Thursday, April 28, at The Commons featuring local and national speakers discussing social justice as it relates to the ongoing transition to low-carbon energy models.

“Cities have been leading forces for demanding change in the area of low-carbon energy, even though electricity is still one of the hardest issues for cities to influence,” Outka said. “That is appropriate in an era when the majority of our population lives within cities and the success of those leading in the low-carbon transition offers examples for other cities that want to do more to drive change locally.”

Photo: View of Boulder, Colorado. Picture by user Hustvedt, via WikiCommons.

Tribes can serve as laboratories in fight against climate change

Wednesday, November 19, 2014

LAWRENCE — Supreme Court Justice Louis Brandeis wrote that states had the opportunity to serve as laboratories, testing new ideas and policies in the American federalist system. A University of Kansas law professor has authored a study arguing that American Tribal Governments are in a unique position to serve as laboratories for the fight against climate change and innovation in environmental law, especially given the federal government’s lack of action on the matter.

Elizabeth Kronk Warner, associate professor of law and director of the Tribal Law & Government Center at KU, has authored a study examining how 74 tribes in the United States are taking the lead in forming laws and measures to fight and adapt to climate change and lead in environmental law. The tribes are embodying Brandeis’ idea at a critical time and could have lessons to teach the rest of the country.

“That’s how we have viewed states from a legal view, as laboratories for new ideas, but why can’t we view tribes the same way, especially in terms of environmental law where the federal government has really stalled out?” Kronk Warner said. “I thought it would be interesting to look and see what we can learn from tribes and how it can be applied to states.”

In previous research Kronk Warner studied tribal codes to learn how they addressed climate change. For this study, which will be published in the Arizona State Law Journal, she analyzed tribal court decisions, regulations, customary laws, vision statements, tribal constitutions and other tribal legal documents. Many tribes, such as the Nez Perce in Idaho, Confederated Salish and Kootenai of Montana and others are already taking innovative legal actions to fight climate change and develop innovative environmental law.

Many tribes have adopted or are now forming climate change adaptation plans. The plans, which spell out how the tribes will form laws to adapt to the realities of a changing climate, are notable because environmental law largely takes a mitigation stance. While a good idea in spirit, mitigation laws, which aim to stop carbon emissions and prevent further damage from climate change, are incredibly difficult to pass politically, and in many cases it may already be too late to prevent all forms of damage, Kronk Warner said.

The tribal plans also largely consider culture as part of the legal landscape. Maintaining cultural heritage is vitally important to many tribes and is reflected in one plan that calls for preserving certain plants through means such as greenhouses and similar means, for example. State and federal law could stand to gain from considering American culture as more of a factor in the formation of laws, Kronk Warner said. Her research also found that tribal governments are keenly aware of the knowledge their ancestors have of the land on which they live.

“I think that especially could be a valuable lesson for states and the federal government,” Kronk Warner said. “Environmental knowledge is intensely regional. Having people share what they’ve learned in 100 years or more of living in an area can teach many lessons.”

Tribal governments are in a unique position to experiment with environmental law because they often are not bound by the same restrictions and regulations state and federal lawmakers are. That freedom to act not only allows tribes to be creative, it allows them to act more quickly.

“In theory, you could argue that they have more authority than states. They are sovereign entities, and they did exist before the formation of the federal government,” Kronk Warner said. “Tribes can also embrace the idea ‘we don’t need the federal government to be productive. We can do a lot on our own.’”

There are numerous examples throughout U.S. history of states experimenting, both successfully and unsuccessfully, with legal ideas. Slavery, legal drinking ages, speed limits, same-sex marriage, abortion and taxing philosophies all fit the mold.

Some of the tactics tribes are experimenting with have already started to show up in state and local governments. Cities such as Seattle and Miami, which face serious threats of salt water infiltrating fresh city water, have begun to enact climate change adaptation plans.

In future research, Kronk Warner plans to study how and whether tribes can use treaty rights to address climate change threats and how tribes enforce their environmental laws.

“I think it’s great and very empowering,” Kronk Warner said of tribes experimenting with environmental law. “It’s largely what the United States was intended to be, a group of states that can experiment with laws and ideas and the best ones are adopted. We’ve gotten away from the idea of states taking the lead. But this is a chance for tribes, states and local governments to seize the lead on environmental law.”

Law professor to argue before Supreme Court on water dispute

Tuesday, September 16, 2014

LAWRENCE — A University of Kansas law professor has authored a study and will argue before the Supreme Court on a water rights case via a method that can be thought of as a more civil version of civil war.

Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will argue on behalf of Kansas before the Supreme Court on Oct. 14 in a dispute about water rights and the Republican River. Lower courts have determined that Nebraska has pumped too much water from the river before it flows into Kansas and that Nebraska should pay Kansas $5.5 million. Nebraska claims that amount is too steep, while Kansas claims the payment should be higher. McAllister is arguing at the request of Kansas Attorney General Derek Schmidt, who will join McAllister at counsel table for the oral argument.

McAllister also has written a new article to be published this fall in the law journal The Green Bag about original jurisdiction procedures, the process by which disputes between states often are initiated and decided in the Supreme Court.

“One of the ways to think of original jurisdiction is as ‘the other civil war,’” McAllister said. “Instead of states taking action against each other, militarily or otherwise, they can go to the Supreme Court and get a resolution of their dispute. Original jurisdiction gives the Supreme Court the chance to keep such disputes from ever reaching the point of violence or other punitive actions between states.”

Original jurisdiction was used only sparingly before the Civil War, but since then it has been used frequently to determine all manner of disputes between states over water rights, fishing rights, boundaries and occasionally other issues such as interstate pollution. One of the most famous recent cases was a dispute between New York and New Jersey over which state owned Ellis Island, home to the historic center that processed millions of immigrants to the United States.

This isn’t the first time McAllister has been involved in a water rights case that ended up at the Supreme Court via original jurisdiction. Kansas v. Colorado was a dispute over water rights to the Arkansas River. In that case, Kansas sued Colorado for taking more than Colorado’s share of the water in the river before it reached Kansas. McAllister worked on the case near its conclusion, assisting then-Kansas Attorney General Steve Six, writing briefs and providing consultation. McAllister’s work on that case and the Supreme Court’s decision prompted him to write another article in The Green Bag, agreeing with Chief Justice John Roberts that the Supreme Court alone had the constitutional power to determine the procedures for original jurisdiction cases and that Congress could not and should not get involved in such matters.

Some have argued that Congress has the power to dictate the procedures the Supreme Court uses in these state versus state cases, but McAllister in responding has noted that Congress has never purported to do so directly in the nation’s history.

“History suggests that Congress has never really thought they could or needed to get involved in these cases,” McAllister said. “I don’t see how Congress getting involved could make things any better. The court has developed procedures and provided a forum that has worked for the states.”

While some claim that the Necessary and Proper Clause of the Constitution, which gives Congress the authority to set certain parameters on the court, gives Congress the power to determine original jurisdiction procedures, McAllister disagrees.

“The logical extension of that argument is that Congress could completely control every aspect of the Supreme Court’s original jurisdiction, which would do away with separation of powers. The Supreme Court does not try to control or change the procedures Congress uses.”

In his upcoming arguments before the Supreme Court, McAllister will argue because it has been established that Nebraska pumped too much water from the Republican River and violated a previous compact between the states on water usage, Nebraska should have to pay Kansas significant damages, both to compensate for the loss to Kansas and to deter Nebraska from committing future violations.

“The upstream states always have an advantage, as far as first shot at the water and the ability to use what they want,” McAllister said. “You often end up with disputes arising from interstate water compacts arising decades down the road. I think one of the questions is, ‘How much remedy is appropriate in this situation? It’s an interesting question to argue because there aren’t really hard and fast rules here.”

The case will be both a chance for a KU professor to argue before the Supreme Court and for KU Law students to observe the preparation process firsthand. McAllister will take part in several moot court sessions before the October arguments in order to practice and prepare. In one of those sessions, KU faculty will represent the Supreme Court justices who will hear the case. Students will observe and be able to ask questions following the session.

This particular case will also be part of McAllister’s distinguished professor lecture, which he will present Oct. 6. His Supreme Court experiences, consulting with the Kansas Attorney General’s office and the intersection of the two with service, teaching and scholarship will all be part of the presentation.

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