About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

3 Geo. Wash. J. Energy & Envtl. L. 1 (2012)

handle is hein.journals/gwjeel3 and id is 1 raw text is: ARTICLES
Efficiency in the Regulatory
Crucible: Nai atIn 2 st Century
'Smart' Technology and Power
Steven Ferrey*

T         he flow of money in U.S. energy policy choices has
consequences,'    and   the   Obama     administration's
2009 federal stimulus package presents an interesting
policy scenario. The current administration wants to pivot
postindustrial America away from emitting global-warming
gases and powering its economy with fossil fuels.2 Indeed,
changing the energy technology and infrastructure of the
United States has been the cornerstone of the Obama admin-
istration's domestic policy. The federal government devoted
significant amounts of stimulus funding to this agenda.4 It
also maintained preferences for certain investments in energy
efficiency and renewable energy through the tax code.5 A
* Steven Ferrey is Professor of Law at Suffolk University Law School
and served as Visiting Professor of Law at Harvard Law School in
2003. Since 1993, Professor Ferrey has served as legal consultant to
the World Bank and the United Nations Development Program on
their renewable eneigy and climate control policies in developing
countries, working extensively in Asia, Africa, and Latin America. He
holds a B.A. in economics, a JD., and a maste; degree in regional
planning. Upon completing his JD., he was a postdoctoral Fulbright
Fellow at the University of London. He is the author of seven books
on energy and environmental law and policy the most recent oJwhich
is UALOCKNG THE GLOBAL WIRMING TOOLBoX KEY CHOICES FOR
CARBON RESTRICTION AND SEQUESTRATIOV (2010). He has also
penned many articles on these topics which have been published in
law reviews at Harvard University; NVYU; Stanford University; the
Univesity oj Calijornia, Berkeley; Boston College; the College oj
William c& Mary; the George Washington University; UCLA; the
Univesity of Notre Dame; the University oJ Minnesota; Fordham
University; the University oj Virginia; Duke University; and other
journal. ProJssor Ferrey thanks his research assistants, Christopher
Ng, jennijer Warren, and justin Elliott, Jor their research assistance
with citations.
1.  See, e.g:, infra Part II.B (discussing, in part, substantial federal expenditures on
new energy initiatives).
2.  See DEMOCRATIC POLICY COMM., FACT SHEET: KEY OBAMA BUDGET INVEST-
MENT IN CLEAN ENERGY, THE ENVIRONMENT, AND NATURAL RESOURCES
(20 10) available at http://dpc.senate.gov/docs/fs- 11-2-26.html.
3. See The President's Weekly Address, I PUB. PAPERS 13 (Jan. 24, 2009).
4. American Recovery and Reinvestment Act (ARRA) of 2009, Pub. L. No. 11-
5, 123 Stat. 115 (2009).
5.  Consumer Energy Tax Incentives, U.S. DEPT ENERGY, http://w-w-w.energy.gov/
taxbreaks.htm (last visited July 10, 2011).

change of this significance revolving around a resource as
essential as energy is a fundamental shift that has happened
only a few times in history' and could well be one of the most
profound changes of the century.
Even though the Obama Administration's goal was to
change the technology of American energy use, the most
pressing energy issues are not technological in nature; they are
legal, regulatory, practical, and political./ This article will fol-
low the money in the 2009 federal stimulus package for each
part of the new energy infrastructure puzzleS and will chart the
policy conundrums and legal barriers that each element con-
fronts.9 Part I will provide an introduction to the challenges
that the development of renewable energy, energy efficiency,
and conservation present. Part II will focus in great detail on
the development of the smart grid and renewable power in the
United States, and the associated legal, regulatory, political,
and practical challenges. Part III will focus on the progress of
the promotion of energy efficiency and conservation measures
in this country, and the primary challenges that these mea-
sures face. This article concludes that energy efficiency and
conservation measures are a cost-efficient means of beginning
to transform our country's use of and relationship with energy,
and that these strategic measures face dramatically fewer road-
blocks to progress than do development of renewable energy
and its integration into the grid.
I.     Renewable-Energy Programs Face
Challenges that Energy-Efficiency
Incentives Do Not Encounter
A.     Challenges Faced by Renewable-Power Programs
Some renewable power incentives enacted at the state level
have met a barbed wire fence of legal, constitutional, and
6. For a discussion of one such fundamental shift, see Gregory Clark, Kevin H.
O'Rourke & Alan M. Taylor, Made in America? The New Yorld, the Old and
the IndustrialRevolution, 98 AM. EcoN. REv. 53 (2008).
7. See, e.g:, Megan Hiorth, Note, Are Traditional Property Rights Receding with
Renewable Eneigy on the Horizon?, 62 RUTGERS L. REV. 52', 530-31 (2010)
(discussing the role of property rights in development of wind and solar
technology).
8. Infra Part II.B.
9. Inhfr Part II.

JOURNAL OF ENERGY & ENVIRONMENTAL LAW

Winter 2012

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most