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Energy, Security, and Climate

CFR experts examine the science and foreign policy surrounding climate change, energy, and nuclear security.

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REUTERS/Amit Dave
REUTERS/Amit Dave

Why We Still Need Innovation in Successful Clean Energy Technologies

Today is my last day at CFR. I’m joining ReNew Power, India’s largest renewable energy firm, as their CTO. I’m excited for a new adventure but sad to leave the Council, which has given me support and autonomy to study the innovations needed for global decarbonization. Read More

Climate Change
Liberal Bias and Climate Science
Eduardo Porter has a column in the New York Times today arguing that “Liberal Biases, Too, May Block Progress on Climate Change”. (Yes, that’s a headline that he didn’t write, but it’s a good summary of the column’s message.) I’m on board with that bottom line. But his central example of liberal hostility to the “the scientific consensus” unintentionally highlights a different problem: conflation of science with values and judgment. Porter begins his column by rightly bemoaning hostility to the basics of climate science on the right. Then he turns to nuclear power for contrast. “Only 35 percent of Democrats, compared with 60 percent of Republicans, favor building more nuclear power plants,” he writes. And yet: “It is the G.O.P. that is closer to the scientific consensus. According to a Pew poll of members of the American Association for the Advancement of Science, 65 percent of scientists want more nuclear power too.” In two words: Who cares? Scientists, by and large, know more than the general public about the public risks and environmental benefits associated with nuclear power. But the typical scientist probably doesn’t know much (if anything) more about the economics of nuclear power. And he or she has a set of values – about risk, technological progress, the environment, economic prosperity, and so on – that almost certainly differs from the average person. The fact that “65 percent of scientists want more nuclear power” tells us not only about scientists’ scientific judgment but about their economic beliefs and values too. No one, liberal or conservative, should be considered “biased” for failing to share those. The scientists who took the AAAS poll aren’t to blame for this. But journalists and others who pass off value judgments as science are. Later in the piece, Porter writes that “when assessing the risks of different technological options, the left finds the risk of nuclear energy looming the highest, regardless of contrary evidence.” He links to a new paper by Jim Hansen as the evidence in question. That paper is about prevented mortality and emissions from nuclear power. It’s fine if Porter (and Hansen) think that prevented mortality and emissions are what matter most about nuclear power. But someone who has other priorities isn’t necessarily biased or anti-scientific – they just care about other things. To be fair to Porter, most of his piece is a smart exploration of how political biases shape how we all gather and filter facts; it’s well worth a read. Perhaps another column could wisely drill down on why so many people want to rely on “science” for answers to tough social questions when only their best judgment will do.
Economics
Why Solar Will Need to Cost 25¢ Per Watt by 2050, And How the Industry Might Get There
This post is co-written with Shayle Kann, senior vice president of research at Greentech Media. For solar power to become truly mainstream, how much should it cost? And is the industry on track to meet that target? We tackle each of those questions in an article released today in the journal Nature Energy. In a nutshell, our answers are: for solar power to supply nearly a third of the world’s electricity by 2050, it will ultimately need to cost around 25 cents per watt (in today’s dollars), fully installed. And that target may be out of reach without a major technological shift. Why might solar need to meet such an aggressively low cost target in the future if it is already giving fossil fuels a run for their money today? We argue: Cost-competitiveness for solar is a moving target. As solar’s share of the electricity mix increases, the cost of each new solar project must fall to compete. This ‘value deflation’ effect of solar at higher penetrations is a well-known theoretical concept but is rarely discussed as a matter of practice in the solar industry…Thus, the installed cost of solar must fall dramatically to enable 30% penetration by 2050. Existing literature suggests a value deflation effect of roughly 70% by that time. Therefore, if unsubsidized solar at US$1.00 per W would be competitive at low penetrations, a cost target of US$0.25 per W would enable solar to outrun value deflation in the long term. What about the role of energy storage and load-shifting to mitigate this value deflation effect? Though they are important, we argue, these applications may provide only a partial solution: The quantities of storage required to substantially offset value deflation are significant and diverse—storage would need to buffer variability between different parts of the day (diurnal storage) as well as between seasons as solar’s output fluctuates in short and long cycles. One study of the California grid finds that, if the cost of storage in 2030 turns out to be 80% lower than existing benchmark projections, then value deflation for renewable energy at 30% penetration will be roughly one-third less severe…The same study of the California grid under 30% renewable penetration found that highly elastic demand—responding to rates varying in real time—would only alleviate 15% of the value deflation effect. Still, existing solar technology, based on silicon, has consistently (and sometimes dramatically) fallen in cost. So why wouldn’t the solar industry, if left on autopilot, just incrementally improve its products to meet the cost target that the market might demand in the future? We reply: At the very ambitious, lower end of that range [of possible future costs], silicon solar PV would be close to meeting the US$0.25 per W target to outrun the value deflation effect. But it would be a mistake for the solar industry to put on blinders in a sprint toward silicon solar cost reduction—in decades, the industry may find it backed the wrong horse. So which horse should the industry back? Rather than pick a new favorite, firms in the solar industry should invest widely to develop alternatives to existing technology. And those alternatives should include both new materials and processes to make solar panels as well as new applications, which together could upend solar economics. For example, highly efficient solar coatings integrated into a cityscape could help supply urban energy needs while adding little to the cost of new construction. Our article expands on the justification behind our long-term cost target. And in this post, we’ll explain why long-term targets are a tried-and-true mechanism for industries to invest today in pursuit of breakthrough products tomorrow. Revolutionary Roadmaps The most famous example of a long-term roadmap for technology development is Moore’s Law. In 1965, Gordon Moore predicted that the number of transistors on an integrated circuit—or microchip—would double every two years. Over the subsequent fifty years, the industry met Moore’s target every two years with the regularity of a metronome. Although the pace might finally be slowing, Moore’s legacy is indelible: he proved that an industry that prioritizes innovation can consistently meet targets that were once considered unrealistic. Other industries got the message. Some of them were closely related to the semiconductor industry and benefited directly from its roadmapping efforts. For example, firms producing micro-electro-mechanical systems (MEMS)—which include sensors like the accelerometer in your smartphone—adapted the integrated circuit roadmap to design their own roadmaps for disruptive MEMS technology. But even outside of high-tech, numerous industries created technology roadmaps that set long-term targets and galvanized firms to invest in R&D. For example, the U.S. steel industry, in partnership with the Department of Energy, executed a research roadmap from 1997 to 2008. As a result, the energy intensity of steel production in the United States fell 30 percent, and the industry continues to fund long-term breakthrough technology development. Looking ahead, diverse industries from the automotive sector to aviation to advanced manufacturing have all set technology roadmaps to accelerate innovation in coming decades. A More Ambitious Solar Industry The solar photovoltaic (PV) industry actually has a technology roadmap, developed by an industry consortium of silicon solar manufacturers. But the roadmap is less a set of ambitious targets than a compilation of forecasts for how the industry is most likely to evolve. That is, the solar roadmap reacts to industry trends instead of shaping them. This stands in stark contrast to the roadmaps introduced above, which set ambitious targets that firms could only achieve through innovation. The Department of Energy’s SunShot Initiative is more ambitious and has been instrumental in U.S. solar cost reductions over the past five years. But its target so far extends only through 2020. Now is an ideal time to set longer-term targets. Producers of solar cells and panels enjoyed higher margins in 2015 than in the prior five years. And with the five-year extension of the U.S. investment tax credit for solar, as well as supportive policies in China, India, and other major economies, the market will continue to grow. During this period of relative stability, the industry should step back and re-evaluate its long-term technology trajectory. Companies should pool resources to fund collective research and standards-setting, a model successfully demonstrated by the semiconductor industry. And they should not assume that the only improvements worth investing in are incremental to existing products. Ultimately, even with rapid technological advancement, 25 cents per watt may be out of reach by mid-century. But striving to achieve such an ambitious goal will only benefit the industry in the interim. By investing in long-term innovation, the solar industry can lay the foundation for its prolonged global success. This post also appeared in Greentech Media.
Renewable Energy
Japan Should Increase Its Target for Renewable Energy, In Case Nuclear Restarts Stall
I’ve been traveling in Japan, meeting with government officials, power sector executives, and energy policy scholars. I thank CFR life member Bill Martin, Washington Policy and Analysis, and the Japanese Federation of Electric Power Companies for generously hosting me. TOKYO—Last month, Japan commemorated the five-year anniversary of the great earthquake and tsunami that caused the Fukushima Daiichi nuclear disaster. The disaster—three nuclear reactor meltdowns and the release of some radioactive material—forced 164,000 residents to evacuate and deeply traumatized the country.[1] So when Japan shut down its entire fleet of nuclear reactors, it was unclear whether they would ever restart. Five years later, the outlook for nuclear power in Japan is better, as are prospects for a cheaper, cleaner, and more secure energy mix. In 2015, Prime Minister Shinzo Abe’s administration completed a four-year-long process to set targets for Japan’s energy mix in 2030. Those targets include restarting Japan’s nuclear fleet as quickly as possible, though only after reactors pass stringent safety assessments. The administration has also committed to ramp up renewable energy, aiming to combine it with nuclear power to generate nearly half of Japan’s electricity—or a quarter of its primary energy—from “self-sufficient sources” by 2030. And Japan is finally moving ahead with long-overdue electricity system reform to introduce more competition and keep costs down. The targets represent an admirably rational response to the Fukushima disaster. As I’ve written before, Japan should treat renewable energy and nuclear power as complements, not substitutes, which the Abe administration recognizes.  Yet even though administration officials talk about their 2030 vision as a major accomplishment—requiring years of careful analysis and negotiation—setting targets was the easy part. Now Japan needs to execute toward those targets, and an obstacle course of regulatory, legal, and political hurdles stands in the way. If things don’t go according to plan, the government needs to be prepared to adapt its targets, remembering that they are merely instruments to achieve Japan’s overarching energy goals. Japan Will Struggle to Meet Its 2030 Target for Nuclear Energy Restarting Japan’s nuclear reactors could reverse alarming trends that followed Fukushima. After Japan shut down its nuclear reactors, the price of retail electricity rose by two thirds, and the share of imported fossil fuels in the power mix rose from roughly 60 percent to nearly 90 percent (Figure 1). At the moment, low prices for oil and liquefied natural gas (LNG) have reduced Japan’s import bill. But the resource-poor island nation is still at the mercy of commodity market volatility and would suffer if prices increased again. For this reason, Japanese officials care deeply about energy self-sufficiency. If Japan can achieve its nuclear target for 2030, then nuclear will reemerge as its largest source of self-sufficient power. But the nuclear target is easier set than accomplished. Recently, a district court ordered that Takahama Units 3 and 4 stay closed, siding with some residents unhappy about plans to restart the reactors. Whether or not the court’s decision was right (it is puzzling how a local court could overrule the safety assessment of Japan’s nuclear regulator), it certainly appears that the road to restarting Japan’s 42 reactors—of which only two are currently running—will be bumpy. And that’s not all. After Fukushima, the previous government passed legislation making it harder to extend a nuclear reactor’s lifetime beyond 40 years—consistent with its plan to completely phase out nuclear energy. By 2030, one third of existing reactors will hit the 40-year age threshold for decommissioning. Even if utilities manage to finish construction on three new reactors, nuclear energy will still only account for 15 percent of Japan’s electricity. This implies that achieving the government’s 20–22 percent target by 2030 is improbable at best. Uncertainty over nuclear reactor restarts also complicates Japan’s plans to reprocess spent nuclear fuel. When the Rokkasho Reprocessing Plant (RRP) starts up in the near future, it will begin to separate plutonium from the spent fuel that has been accumulating at the facility and at reactor sites around Japan. If enough reactors don’t start up that can burn the reprocessed fuel (in a form called “MOX” fuel) from RRP, then Japan will begin to accumulate reserves of MOX fuel that some experts consider a proliferation risk. After touring RRP, I was left with little concern over the risk that Japan could divert nuclear material to a weapons program or leave it vulnerable to theft or sabotage (Japan’s safeguards at RRP are state-of-the-art, including 140 neutron detectors throughout the facility, multiple cameras recording each step, and automated reporting to the International Atomic Energy Agency). Nevertheless, the government knows that accumulating reprocessed fuel brings risks, including inflamed tensions with China, which has repeatedly voiced concerns over the issue.[2] All of this means that Japan needs to seriously plan for the contingency in which the target nuclear capacity does not materialize. It will need to carefully synchronize operations at RRP with reactor restarts, and it will also need to explore other ways of achieving zero-carbon, self-sufficient energy. Higher Targets for Renewables Could Compensate for a Nuclear Shortfall Although Japan is likely to miss its nuclear target, it has other zero-carbon options to meet its larger goal of 25 percent self-sufficiency in its primary energy mix. Renewable energy, comprising hydro, solar, wind, and geothermal energy, could compensate for a nuclear shortfall. Already, Japan has made substantial progress in ramping up renewables. Following Fukushima, Japan unveiled a generous feed-in tariff incentive scheme to support renewable energy. The market responded enthusiastically, especially in solar power. By 2014, Japan was second in the world to China in annual solar installations, having installed 9.7 GW of capacity. Recognizing that it could not continue funding solar power at such generous levels forever, the government lowered the rate of incentive payments by 16 percent in 2015 and a further 11 percent last month. Nevertheless, its target of 22–24 percent renewable energy by 2030, driven largely by projected growth in solar power, is still well within range. The government set this target by calculating the level of renewable energy that would not cost Japan more in incentive payments than it would save from displaced fossil fuel imports. But in its calculations, the government assumes that solar will cost about six cents per kWh in 2030, a very conservative projection; for reference, unsubsidized solar power in the United States should meet that cost target a full decade earlier, by 2020. Given that solar is likely to be much cheaper than the Japanese government has anticipated, it should not be difficult to support the target share of renewable energy in 2030 without breaking the bank. In fact, Japan should look to support even higher levels of renewable energy. Over the past year, the government has made regulatory changes in this direction. First, it limited the number of days that utilities could "curtail,” or switch off, renewable energy supply to the grid without compensation for the foregone power. Second, Japan has streamlined regulations to drive down the costs of installing rooftop solar—as a result, the price of residential solar in Japan (which composes the large majority of Japanese installed capacity) is lower than that in the United States and closer to leaders Germany and Australia (Figure 2). Finally, Japan is now rolling out a reverse auction system to buy power from utility-scale solar installations. Since large-scale solar is cheaper than rooftop solar and reverse auctions tend to secure lower prices than a feed-in tariff, the shift from decentralized to centralized solar in Japan should further drive down costs and fuel capacity expansion. But intermittent renewable sources, such as solar and wind, have limited potential so long as Japan’s electricity grid remains fragmented. Each of Japan’s ten regional utilities exercises a monopoly in its service territory, and electricity trade among regions is comparatively low. Moreover, the entire power grid is split into two halves operating at different frequencies, limiting power flows between east and west. With better transmission links between regions, the Japanese grid could accommodate more renewable energy, making it easier for resources in one region to compensate for unpredictable renewable energy in another region. Therefore, to make it possible to raise its renewable energy target—important for reducing emissions and increasing energy security—Japan should invest substantially in a more interconnected national grid. Though Overdue, Power Sector Reform Should Not Pit Nuclear Against Renewables On April 1, Japan took an important step toward breaking up its vertically integrated utilities, when it fully deregulated the electricity retail market. Many jurisdictions in the developed world have had deregulated markets—which in several cases has lowered electricity rates by introducing competition into the sector—for decades, but Japan’s path to deregulation has been sluggish. Still, the government has justified its caution by pointing to missteps elsewhere in the world and tailoring its own policies to avoid them. For example, though it now allows customers to choose their retail electricity provider, customers will still be able to stay on a regulated rate from the local utility, and the government will carefully monitor how the market evolves. In doing so, the government hopes to avoid market abuses that plagued deregulation in the United Kingdom and California. But the one aspect of deregulation about which I did not hear a satisfactory answer from Japanese officials was how to avoid the conflict between renewable and nuclear energy that is playing out in other deregulated markets. For example, in many parts of Europe, nuclear power is increasingly unprofitable as a result of the rise of renewable energy. The way deregulated power markets are set up, renewable energy reduces power prices, making it difficult for existing nuclear plants to cover operating costs and virtually impossible for new nuclear plants to raise enough revenue to amortize capital costs. Today, there is a lower risk of this happening in Japan, because only about 2 percent of power is traded on a wholesale power market. But the Japanese government plans to increase that proportion, which could expose nuclear reactors to wholesale price deflation from renewable energy. Japan is considering implementing a “capacity mechanism” that ensures that reliable power from sources like nuclear reactors—which generate consistently around the clock—are compensated enough to keep them open. But capacity markets around the world have had their own problems, and in general they have not solved this problem of renewable energy crowding out nuclear energy. Some have proposed alternative market designs that have not yet been tested but are theoretically promising. For example, splitting the retail market for electricity into two markets—one for reliable, 24/7 power and another for power whose availability fluctuates—could insulate nuclear power from unhealthy competition with renewable energy. Japan should explore this and other proposals. At the end of the day, it is crucial that zero-carbon, secure sources of energy coexist in the Japanese power landscape. As Japan continues to deregulate its power sector, it should ensure that the right economic incentives are in place for nuclear and renewable energy to both flourish. [1] There is increasing evidence that the release of radioactive material from Fukushima has not posed substantial short or long-term risks to human health. [2] For readers wondering why Japan doesn’t just abandon reprocessing, James Acton of the Carnegie Endowment explains, “Japan is entrapped in reprocessing. Commitments made by the national government to local communities to facilitate the development of Japan’s nuclear industry and, in particular, its industrial-scale reprocessing facility make RRP’s operation effectively inevitable.” The full report is essential reading to understand Japan’s convoluted nuclear fuel cycle policies.
  • India
    WTO Ruling Against India’s Solar Policies Previews Clashes Between Trade and Climate Agendas
    This week, a World Trade Organization (WTO) panel decided in favor of the United States and against India in a dispute over Indian domestic content requirements for sourcing solar power. Reading the headlines, one might worry that “The WTO Just Ruled Against India’s Booming Solar Program” or, worse, that the “WTO swats down India’s massive solar initiative.” The histrionics from progressive media outlets are overblown. In fact, whereas judges of international law have reaffirmed that national procurement of renewable energy favoring domestic manufacturers is illegal, the jury is still out on whether this helps or hurts efforts to deploy clean energy worldwide. Because domestic content requirements can reduce supply and increase prices, I am inclined to call this ruling a small victory that makes it cheaper to combat climate change. But I do still worry that in the future, liberalized trade and prudent climate policies might come into conflict. WTO Panel TRIMs India’s Solar Program The WTO panel ruling did not overturn India’s solar program, the centerpiece of India’s plan to curb emissions growth. India is targeting 100 GW of solar—around half of the world’s current solar capacity—by 2022. And at the 2015 Paris Climate Change Conference, Prime Minister Modi unveiled the International Solar Alliance, a confederation of 120 solar-friendly countries, to be headquartered near Delhi. None of this is materially affected by the WTO ruling, which narrowly focused on solar installations accounting for about 0.5 percent of India’s 100 GW target. The panel found that in a portion of its solar procurement from 2010 to 2014, India violated international trade law by barring foreign-made solar panels and, in some cases, the constituent solar cells in a panel. This was accomplished through “domestic content requirements,” which applied to roughly 500 MW of solar capacity installed by private developers, from whom government agencies promised to purchase the solar energy for 25 years. The panel concluded that these domestic content requirements breached India’s obligation under the WTO Agreement on Trade-Related Investment Measures (TRIMs) not to “require the purchase or use by an enterprise of products of domestic origin or from any domestic source…” The panel also found that India had not followed its legal responsibility under the 1994 General Agreement on Tariffs and Trade (GATT): “The products of the territory of any Member imported into the territory of any other Member shall be accorded treatment no less favourable than that accorded to like products of national origin…” The direct consequences of this case are minimal. The panel concluded that India should “bring its measures into conformity with its obligations under the TRIMs Agreement and the GATT 1994.” But since the beginning of this case, India has proactively reduced its domestic content requirements, from 50 percent in 2013 to 33 percent in 2014 to just 12.5 percent in its ongoing procurement. Moreover, a very similar case decided in 2014 by the WTO Appellate Body, Canada—Renewable Energy, failed to find that these domestic content requirements constituted actionable subsidies that could legitimize retaliation. So India may have to curtail its already minimal domestic content requirements moving forward, but nothing else really happens.[1] In My Humble Opinio Juris… Even though the direct consequences of this ruling are minimal, the issues raised in the case have broader significance in the long run. This explains why twelve countries and the European Union followed the case as third-party observers, with some countries providing extensive comments cited in the final ruling.[2] Most observers sided with the United States; for example, Japan bluntly called India’s policies “protectionist.” But even though this particular case was relatively easy to decide, onlookers were deeply invested in the precedents this case could set. The clearest outcome from the case was a reaffirmation of the 2014 ruling in Canada—Renewable Energy that domestic content requirements for renewable energy are illegal. Some environmental groups object that outlawing such policies can reduce the incentive to deploy clean energy. Under free trade, they contend, countries will end up importing cheap solar panels from China and never build up a domestic industry that would create local economic benefits. This may well be true, but restricting trade also raises the price of clean energy. And the biggest obstacle to clean energy deployment that I’ve consistently heard from policymakers in the developing world is not that imports fail to create jobs but that the cost is too high. So my conclusion is that this ruling is a felicitous example of the trade agenda aligning well with the climate agenda; reducing barriers to trade can also speed the deployment of clean energy. But India raised another, more interesting, objection on energy security grounds to the U.S. allegation that its domestic content requirements were illegal. Under Article XX of the GATT, countries can derogate from their international trade obligations, i.e., enact contrary policies, so long as certain conditions are met. One such condition is met if a contrary policy is “essential to the acquisition or distribution of products in general or local short supply.” India argued that since it had “abysmally low” domestic production capacity, and since it plans to sharply ramp up its deployment of solar power, it could face a shortage of solar panels if foreign supply were to disappear. The panel was unmoved by this objection. Because India could not prove an “imminent” risk of shortage, the panel held that India could not shirk its legal responsibilities. Surprisingly, the third party observers concurred, and Japan was unsympathetic to India’s argument. As one of the most energy-insecure countries, following the Fukushima nuclear disaster, one might expect Japan to favor retaining the right to prioritize national energy security over international trade liberalization. In this particular case, though, Japan’s opposition to trade barriers in the solar industry has to do with the make-up of Japan’s own solar industry, which largely relies on importing and relabeling Chinese panels. Setting Japan aside, other countries will increasingly want to switch to renewable energy to reduce reliance on fossil fuel imports. But if renewable energy industries become heavily concentrated—as the solar industry has become in China—then countries may not want to shift from one source of concentrated energy imports to another. So the summary WTO panel ruling against India’s energy security objection could set a precedent that discourages renewable energy adoption in the future. The second interesting objection raised by India was that the auctions for solar energy were conducted by the government, and therefore the domestic content requirements counted as government procurement that is exempt under GATT Article III:8(a). Again, the panel disagreed, upholding the prior decision in Canada—Renewable Energy that the government was procuring electricity, not solar panels, so it did not have the right to preferentially procure domestic solar panels. In this case, this prohibition on using preferential government procurement probably does not impede clean energy deployment, again because free trade lowers prices. But I can think of examples in the future where preferential government procurement might be a good idea, especially for advancing new clean energy technology. For example, I advocate targeted U.S. government procurement of emerging technology as a stepping-stone toward free market competition. And it might be logical only to procure technologies that had previously received government research, development, and demonstration (RD&D) support, to ensure that government support follows technologies through every phase of technology readiness. But this sort of program may well give preference to domestic firms eligible to receive public RD&D funds. Following the precedent set by the WTO panel ruling against India, preferential government procurement of domestic clean energy may not be a legally acceptable instrument of technology policy. And since this might hinder efforts to bring new clean technologies to market, this is another potential example in the future where the trade and climate agenda might conflict. Outside of the issues raised in this case, another potential clash between the trade and climate agendas could be the future interaction between carbon pricing and trade barriers. I was (and still am) prepared to call the Trans-Pacific Partnership (TPP) a step forward for climate policy, but TPP does not explicitly authorize trade barriers based on a product’s carbon content. In a related proposal, William Nordhaus calls for “climate clubs," which would erect trade barriers against countries unwilling to enact harmonized climate policies. If such proposals gain momentum, the climate agenda could run afoul of the trade liberalization agenda. As countries around the world implement climate policies and seek to expand clean energy, many more trade disputes will arise. Trying to forecast future rulings at this point is pure speculation. But even if the outcome of this case is far less exciting than the headlines suggest, it hints at what to look out for in the next one. [1] In fact, it is not entirely clear why the United States continued to pursue this case. India’s initial domestic content requirements from 2010–2012 actually helped the United States, by screening out silicon solar panels and cells that China specializes in while enabling U.S. companies like First Solar to export their thin-film products to India. Recognizing that their domestic content requirements had shifted, rather than deterred, solar imports, India revised domestic content requirements from 2012–2014 to plug the loophole, banning all foreign panels. But now that India has generally scaled back all domestic content requirements, the United States has little to gain in the Indian market from a ruling in its favor. One explanation for pursuing the case is that the United States may instead have been seeking a broader precedent to prevent other countries from passing similar domestic content requirements. [2] There was some intrigue about this third-party participation. On behalf of all the third parties, Canada requested “enhanced third-party rights” to make oral statements during hearings and provide several written submissions. It contended that “issues relating to ‘green energy measures’ are of systemic importance to WTO Members.” Both the United and India effectively told Canada to mind its own business, and the panel rejected the request. Undeterred, Canada, Japan, and the European Union submitted extensive comments to the WTO panel. Oddly, China, which had by far the most at stake in this case, remained totally silent, perhaps content to let the other countries make arguments in China’s favor.
  • Energy and Environment
    The Supreme Court Just Clarified Rules for Modern Power Regulation…Or Did It?
    Yesterday, the Supreme Court ruled that the federal government is empowered to regulate wholesale demand response, or targeted reductions in electricity use by consumers in response to peak demand. The ruling, in Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association (EPSA), has been hailed by a broad coalition comprising environmental activists, regulators, and companies, because demand response can reduce rates and ease strain on the grid. Insofar as it places demand response on firm legal footing, the decision is eminently sensible. But the broader implications of this decision for the line between federal and state jurisdiction in the electricity sector could be problematic for a more decentralized future power system intended to be cheaper, cleaner, and more reliable. My take is that this decision can guide the development of demand response, but we still need Congressional action (and perhaps a broader Supreme Court decision) to update a U.S. electricity market framework that is over eighty years old. Think Back to Econ 101 The full Supreme Court decision is actually riveting reading. In particular, Justice Kagan, writing for the majority, takes pains to clearly explain a fairly complex power market issue, urging readers to “think back to Econ 101” and quipping that artificially stable electricity retail rates “short-circuit the normal rules of economic behavior.” (By the way, Justice Scalia’s dissent promptly ridicules the majority for misconstruing elementary economics, “notwithstanding its own exhortation.” Entertaining stuff.) The case arose because of a 2011 FERC regulation (“Order 745”) that compensates providers of demand response identically to traditional electricity generators in wholesale markets (most commonly inter-state markets for generated electricity that is then transmitted and sold to customers). That means that a consumer—or, more commonly, a group of consumers pooled through a third party aggregator—can bid into wholesale energy markets and get paid per unit of energy they save at the same rate that generators are paid per unit of energy they produce. [1]  At issue was whether Order 745 overstepped the jurisdiction granted in the 1935 Federal Power Act (FPA) to FERC to regulate wholesale power sales but devolved to states authority over retail prices, which are final prices consumers pay for electricity that include wholesale energy costs as well as other costs to deliver the energy to the consumer. A lower court had ruled that Order 745 had overstepped, leaving demand response in a regulatory “no-man’s land,” chilling the investment climate for such services. The Court’s majority opinion lays out a three-part argument upholding the legality of FERC Order 745. First, FERC has jurisdiction over demand response, because it directly affects wholesale power rates. If bids to reduce energy consumption displace bids to produce power, then the marginal price of electricity—which sets the wholesale market rate—falls. Second, FERC is not straying into regulation of retail rates because it does not tell states how to set final consumer rates (and in fact, Order 745 allows states to prohibit their consumers from participating in demand response). Although wholesale demand response may increase or decrease (more likely decrease) the retail cost of power by changing an input cost—the wholesale power cost—the Court found that such knock-on effects are inevitable in any lawful regulation of the wholesale market. And third, FERC pursued a reasonable decision-making process to stipulate identical compensation for demand response providers as for traditional generators. The Court acknowledges FERC’s sound justification that demand response providers are providing the exact same service as traditional generators, thereby meriting equal compensation, and that demand response can help the power grid when it is overburdened. Still, the Court defers to FERC’s technical expertise and statutory mandate as the reasons why Order 745 is legal, rather than the correctness of its compensation decision. All of this makes sense, both legally and as good policy. But taking a step back, this case was important not just because of the narrow demand response issue at stake, but also because of the broader question of what the federal government gets to regulate and what states can regulate. By clearly coming down on FERC’s side in this decision, the Court makes it easier for the federal government to claim jurisdiction over other aspects of the power system that (a) directly affect wholesale rates and (b) only indirectly affect retail rates. Is this a good or bad thing? The Hazy ‘Bright Line’ That is probably the wrong question to ask. The existing U.S. framework for regulating the power sector, dating back to 1935, draws a “bright line” (a phrase used by the Supreme Court in 1964) “between state and federal jurisdiction.” Within that framework, the Supreme Court’s decision in FERC seeks to define where exactly that bright line is, in the process probably expanding the federal government’s jurisdiction. But as energy lawyer Robert Nordhaus points out, “the hazy ‘bright line’ ” is a poor construct for regulating the modern power sector. So this decision does not change the underlying imperative to update the regulatory framework to enable the evolution of the power system. The only aspect of the Court’s majority opinion in FERC that bothered me was this passage in footnote 7 (emphasis mine): The dissent’s framing of the issue is wrong if and to the extent it posits some undefined category of other electricity sales falling within neither FERC’s nor the States’ regulatory authority. Sales of electric energy come in two varieties: wholesale and retail. That was true in the last century, and that is tautologically true under the “bright line” regulatory framework. But the power market has become considerably more complex, and more issues after demand response will continue to pop up as regulatory ambiguities. As Nordhaus points out: Trying to apply the Bright Line to tomorrow’s grid may be even more problematic than applying it to today’s. New technologies and new commercial practices, including: micro-grids—where retail customers in an area take power from, and deliver the output of distributed generation into, a local network which in turn may purchase or sell at wholesale to a distribution utility; energy storage—where end-users may charge storage at retail and discharge and sell at wholesale; automated demand response—where an RTO [“regional transmission operator,” a nonprofit entity that operates the transmission grid] can signal retail customers to reduce demand or charge or discharge batteries or other storage; and real-time pricing—which permits customers to increase or decrease energy use based on wholesale prices; all challenge the assumption that we can easily distinguish between wholesale and retail service. They may require new forms of regulation that probably cannot be accommodated by the existing wholesale/retail division of labor. What’s more, initiatives like “Reforming the Energy Vision” (REV) in New York or Distribution Resource Plans (DRPs) in California aim to create localized, distribution-level markets for energy services—including, energy, capacity, ancillary services, and more. These markets would enable an efficient, decentralized power system that could partially replace today’s centralized grid. Such a system could avoid massive infrastructure build-outs to provide power more cheaply, improve reliability by spreading out the network, and reduce greenhouse gas emissions by integrating cleaner sources of electricity. But these distribution-level markets may very well meet the Court’s two part test in FERC of directly affecting wholesale rates and indirectly affecting retail rates, triggering federal jurisdiction over state initiatives.[2] The right response is for Congress to update the statutory framework for power sector regulation. A new framework should recognize that rather than a federal vs. state framework, the two most relevant levels of modern electricity systems are the regional level—i.e., the inter-state level at which wholesale markets now operate—and the local level—i.e., the sub-state level at which decentralized distribution markets may operate in the future. (I’m saving my specific recommendations for such a new framework for a future blog post.) The Court’s decision in FERC was the right one in relation to the narrow issue of enabling demand response. But even though this decision relied on an outdated framework, I hope it does not calcify that framework, leaving the country stuck with yesterday’s policy tools to deploy tomorrow’s technology. Instead, assuming that this decision is the first step toward broader reform, I’m going to join the celebrations. [1] Although the decision only dealt directly with wholesale energy markets, it is reasonable to assume that this decision empowers FERC to regulate demand response in wholesale capacity and ancillary services markets. See footnote 3 in the majority opinion and see also this helpful essay by attorney Scott Hempling. [2] Although the decision only dealt directly with wholesale energy markets, it is reasonable to assume that this decision empowers FERC to regulate demand response in wholesale capacity and ancillary services markets. See footnote 3 in the majority opinion and see also this helpful essay by attorney Scott Hempling. Full Disclosure: I am an advisor to New York’s REV. This piece reflects my personal views only.