Spring 2015 Environmental and Energy Law Perspectives

T H E GEORGE WA SHI NGTON U N I V ER SIT Y L AW SCHOOL

PERSPECTIVES

ENVIRONMENTAL AND ENERGY LAW

Perspectives

PROGRAM ESTABLISHED 1970

PERSPECTIVES

Electricity Reform and Climate Change Mitigation in Mexico

Nicholas S. Bryner Visiting Associate Professor of Law and Environmental Program Fellow

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n December 2013, Mexico amended several articles of its national constitution related to energy, introducing sweeping reform into the petroleum and electricity sectors. These constitutional amendments, designed to reduce inefficiencies in state-run institutions and boost economic growth, represent a significant, but controversial change to the country’s long-standing practices and open up the country to investment in areas previously controlled by state monopolies.

In August 2014, based on the constitutional amendments, Mexico’s

congress passed a new Electric Industry Act (Ley de la Industria Eléctrica).

The act breaks up the vertically integrated Federal Electricity Commission (Comisión Federal de Electricidad, or CFE), exposing it to competition in the electricity generation sector. It also reorganizes the regulatory agencies that oversee the electric industry, creates a national wholesale electricity market, and allows for private investment in state-owned electricity transmission and distribution.

This article examines Mexico’s new Electric Industry Act in the context of broader global changes in electricity systems. These shifts include technological changes, such as the advent of smart grid infrastructure; efforts to promote access to electricity; environmental concerns, particularly with regard to climate change; and other disruptive challenges to traditional models of electricity service. The restructuring of Mexico’s electricity sector has the potential to both reshape the country’s role in the region’s electricity markets and define Mexico’s commitment to climate change mitigation policies—including its national goal of generating 35 percent of its electricity from clean energy sources by 2024.

Two challenges for Mexico moving forward will be figuring out how to incorporate lessons learned from other models of electricity regulation and taking steps to make sure that new policies put Mexico on a path toward meeting its climate change goals and commitments. continued on page 9

SPRING 2015 ISSUE PERSPECTIVES 1, 9–14 UPCOMING EVENTS 1, 16 WHAT’S NEW 1, 15–16 RECENT EVENTS 3–5, 9 PROFILES 6–9 IN PRINT 9

UPCOMING EVENTS

2015 J.B. & Maurice C. Shapiro Environmental Law Symposium

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n March 26–27, GW Law School is sponsoring the 2015 Shapiro Symposium, “Advanced Monitoring, Remote Sensing, and Data Gathering, Analysis and Disclosure in Compliance and Enforcement.” The law school has partnered with the Environmental Law Institute, Environmental Council of the States, Rotterdam School of Management, Erasmus University in The Netherlands, and the International Network for Environmental Compliance and Enforcement (INECE). The two-day continued on page 16

WHAT’S NEW

WHAT’S NEW New Book: “Next Generation Environmental Compliance and Enforcement”

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n October 2, 2014, GW Law hosted a book launch event for Next Generation Environmental Compliance and Enforcement, edited by LeRoy Paddock, Associate Dean for Environmental Studies at GW Law, and Jessica Wentz, Associate Director of the Sabin Center for Climate Change Law (SCCL) at Columbia Law School, and published by the Environmental Law Institute. The book is a compilation of selected papers from a December 2012 workshop held at GW Law with EPA representatives and other stakeholders on ideas and strategies for implementing a next generation approach to environmental enforcement and compliance.

Contributions to the book examine various opportunities to harness new technologies and management strategies in order to promote voluntary compliance with environmental laws and reduce the cost of agency enforcement.

During the book launch, Cynthia Giles, Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance, and leading expert Associate Dean Paddock, engaged in a discussion on next generation approaches to environmental compliance.

Dean Paddock and Ms. Giles discussed the promises and pitfalls in this new era of environmental enforcement.

The EPA launched its “Next Generation Compliance” initiative in 2012. Through this initiative, the agency’s goal is to leverage information and technology to streamline enforcement procedures and strengthen compliance with federal environmental laws. Elements of this approach include developing rules with built-in mechanisms to facilitate compliance, using advanced pollution monitoring technologies and electronic reporting systems, increasing transparency, and promoting innovative enforcement strategies.

See more at: http://bit.ly/1ArAaUc (Sabin Center for Climate Change Law blog post). Or: http://bit.ly/1Eg1PMR (ELI page). n

New Courses The U.S. Electric System and Sustainability

Electric and Natural Gas Regulation

For the spring 2015 semester, the law school is offering the seminar, “The U.S. Electric System and Sustainability,” taught by Donna Attanasio, Senior Advisor for Energy Law Programs at GW Law. The advanced-level course addresses law and policy pertinent to the current transition of the United States’ electric system in response to sustainability policies and laws, including renewable energy, energy efficiency, and conservation; reliability mandates and resiliency concerns; new and evolving technologies; and the changing roles of market participants.

In spring 2015 GW Law added a course on electric and natural gas regulation taught by adjunct faculty members David Yaffe and Sue Sheridan. The course explores electric and natural gas utility industry regulations, as well as the role and authority of the Federal Energy Regulatory Commission (FERC) on public utility regulation. It also coveres current issues such as renewable electric generation and natural gas issues intersecting the electric and gas industries. n

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RECENT EVENTS

RECENT EVENTS Legal and Environmental Issues in the Sargasso Sea

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n October 23, 2014, GW Law hosted a workshop with the International Cable Protection Committee (ICPC), the Sargasso Sea Commission, and the Centre for International Law (CIL) at the National University of Singapore, on “Submarine Cables in the Sargasso Sea—Legal and Environmental Issues Beyond National Jurisdiction.” The Sargasso Sea is a region in the western portion of the North Atlantic Ocean, most of which lies in the high seas outside national jurisdiction. It is known for the presence of free-floating sargassum seaweed, which provides habitat for a diverse ocean ecosystem.

Dr. David Freestone, Adjunct Professor and Visiting Scholar at GW Law, is the Executive Secretary of the newly established Sargasso Sea Commission.

The objective of the workshop was to start a dialogue between the submarine cable industry and the Sargasso Sea Commission regarding best environmental and industry practices for the surveying of cable routes and the laying, repair, and maintenance of cables in the Sargasso Sea. At the workshop, government representatives from Bermuda, the United Kingdom, and the United States, and representatives from the cable industry, academics, scientists, and lawyers discussed the impact that cable operations may have on the marine environment, the ecological sensitivity of the Sargasso Sea, and whether any best practices should be adopted to minimize the impact, if any, of cable operations in the area.

More information about the workshop, including a final report with conclusions and a path forward for addressing legal and environmental issues in the area, is available on the Sargasso Sea Commission’s website: sargassoalliance. org/about-the-alliance/submarinecables-workshop. n

From left: Professor David Freestone (Executive Secretary, Sargasso Sea Commission), Kate Morrison (Deputy Executive Secretary, Sargasso Sea Commission), Kevin Monkman (Government of Bermuda), Hon. Jeanne Atherden (Minister of Health, Seniors, and Environment, Bermuda), Tammy Trott (Commissioner, Sargasso Sea Commission), and William Francis (Government of Bermuda), at the Workshop on Submarine Cables in the Sargasso Sea.

Neil Rondorf (Leidos Corp.) addresses the Workshop on Submarine Cables in the Sargasso Sea (also pictured: Hon. Jeanne Atherden (Minister of Health, Seniors, and Environment, Bermuda).

ENVIRONMENTAL AND ENERGY LAW PERSPECTIVES 3

RECENT EVENTS

Judges and Environmental Law

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n November, Visiting Associate Professor and Environmental Program Fellow Nicholas Bryner traveled to Foz do Iguaçu and Brasília, Brazil, to participate in a series of conferences and meetings with judges from around the world on environmental law and the judiciary, in conjunction with the International Union for Conservation of Nature World Commission on Environmental Law (IUCN WCEL), the United Nations Environment Programme, and other organizations.

In Foz do Iguaçu, Justice Antonio Benjamin of the Superior Tribunal de Justiça , chair of IUCN WCEL, organized a session on environmental law within the Annual Meeting of the International Association of Judges—a global network of national judges’ associations. Professor Bryner served as one of the rapporteurs for the session, which included presentations from the Chief Justices of Argentina, Benin, and Malaysia; Justices of Supreme Courts in Norway and Belgium; and Justices from regional court systems in the Caribbean and West Africa. The speakers highlighted the role of judges in establishing and maintaining the rule of law in environmental matters; the challenges in ensuring equal access to justice and in addressing environmental disputes; and the need for opportunities for judges in different countries to collaborate, share experiences, and further develop capacity building programs to deal with these challenges.

The role of the judiciary is tremendously important to the rule of law. In a democratic society, judges are expected to apply laws that are designed to safeguard the environment and human health, and to serve as an independent voice. Judges are a critical link in the process of enforcing and promoting compliance with the law, and can educate both citizens and government agencies on their rights and duties with regard to the environment. As the judges in Foz

From left: Justice Winston Anderson (Caribbean Court of Justice), Chief Justice Maria do Céu Monteiro (ECOWAS Community Court of Justice in Abuja, Nigeria), and Professor Nicholas Bryner at the Annual Meeting of the International Association of Judges in Foz do Iguaçu, Brazil.

Iguaçu Falls

do Iguaçu noted, the judiciary has a long tradition of working to protect vulnerable and minority interests—including ecological interests and populations vulnerable to environmental damage—in systems with a separation of executive, legislative, and judicial powers.

Following the meeting in Foz do Iguaçu, Professor Bryner reported on

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some of these discussions at the Federal Senate of Brazil in a hearing of the Senate Committee on the Constitution, Justice, and Citizenship. These events hopefully will contribute to continued dialogue about how to strengthen the implementation of laws that promote environmental sustainability. n

RECENT EVENTS

Adaptive Management Workshop

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n September 19, 2014, GW Law, the Society for Risk Analysis, U.S. Department of Agriculture (USDA) Risk Forum, and Environmental Law Institute co-sponsored a one-day workshop on the role of adaptive management in government decision-making. The participants gathered to discuss some of the key barriers to and opportunities for adaptive management in federal programs.

One of the primary topics discussed during the workshop was whether there are administrative or procedural barriers under the Administrative Procedure Act (APA) and other federal statutes that significantly impede the ability of federal agencies to engage in “genuine” adaptive management. This discussion commenced with a presentation from J.B. Ruhl of Vanderbilt Law School and Robin Craig of the University of Utah S.J. Quinney College of Law on their recent proposal for amending the APA to create an alternative set of administrative

Professor Robin Kundis Craig (University of Utah) presenting at the Adaptive Management Workshop.

procedures for agencies using adaptive management, which the authors refer to as an “adaptive management track.” Ruhl and Craig suggested that this alternative track could provide enhanced flexibility for federal agencies by insulating certain decisions from procedural hurdles under the APA and other statutes. This would, in their view, facilitate the wider use of adaptive management to address difficult environmental problems.

During the second portion of the workshop, federal officials from the

U.S. Department of Interior (DOI), Geological Survey (USGS), Forest Service (USFS), Environmental Protection Agency (EPA), Army Environmental Command (AEC), and Army Corps of Engineers (Corps) provided updates on how their agencies are incorporating adaptive management into decision making. A representative from USFS noted that his agency has been practicing adaptive management in some form for many years, although they did not use continued on page 8

The instructors of the law school’s Atomic Energy Law course arranged for students and alumni to visit the Nuclear Regulatory Commission (NRC) to learn more about nuclear facility regulation.

Top row, left to right: GW Adjunct Professor Larry Brown; Judge Paul Bollwerk, ASLB; Kathleen Schroeder, JD ’13; Matthew Zogby, JD ’13; Nicholas Sciretta, JD ’13; Chief Administrative Law Judge Roy Hawkens, Atomic Safety and Licensing Board (ASLB).

Bottom row, left to right: Kaitlin Sweeney, attorney at the Nuclear Energy Institute; Arthur Farnin, JD ’15; Alexander Matthews, JD candidate, University of Virginia School of Law; Ross Ladau, JD ’15; Ary Dib Dias, LLM ’13; Bandar Altunisi JD ’15; Jacques Erffmeyer, JD ’15; Senya Waas, LLM ’14.

ENVIRONMENTAL AND ENERGY LAW PERSPECTIVES 5

PROFILES

PROFILES Martha B. Wyrsch, JD ’86 Executive Vice President and General Counsel for Sempra Energy

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artha B. Wyrsch is the executive vice president and general counsel for Sempra Energy, a San Diego-based Fortune 500 energy holding company whose subsidiaries provide electricity, Martha B Wyrsch natural gas and valueadded products and services.

As executive vice president and general counsel for Sempra Energy, Ms. Wyrsch serves on the Sempra executive management committee and supports the Sempra Board of Directors. She focuses on legal, compliance, governance and strategic matters for the enterprise.

Jennifer A. Neuhauser, LLM ’15

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ennifer A. Neuhauser first became interested in environmental law while working for the U.S. Army in Afghanistan as an advisor to the Supreme Court of Afghanistan. Seeing the Jennifer A. Neuhauser environmental destruction in Kabul, including extremely poor air quality, open sewers, and piles of garbage, helped Ms. Neuhauser appreciate the importance of the environment and compelled her to further her career in environmental law.

Ms. Neuhauser began her legal studies at the University of North Carolina—Chapel

From 2009 to 2012, she served as president of Vestas American Wind Systems. In that role Ms. Wyrsch had direct responsibility for all North American sales, construction, service, and maintenance. As chair of the Vestas North American Regional Council, she also had coordinating oversight of North American-based manufacturing, supply chain, and other support functions.

Previously, Ms. Wyrsch served nearly ten years at Duke Energy and its spinoff, Spectra Energy Corporation. She joined Duke Energy in 1999 as Senior Vice President of Legal Affairs and Deputy Counsel and, later, was promoted to group Vice President and General Counsel. In 2005, she moved to Duke Energy Gas Transmission as its President and CEO. Subsequently, she became President and CEO of Spectra Energy Transmission, overseeing its natural gas transmission and storage business in the United States and Canada, as well as its gathering, processing, and distribution businesses in Canada.

Prior to joining Duke Energy, she worked at KN Energy, Inc., from 1991 to 1999, in a variety of senior roles, including

Vice President, General Counsel, and Secretary. Previously, she was an attorney with Davis, Graham & Stubbs in Denver, specializing in corporate law, with a focus on oil and gas and real estate transactions, as well as securities and finance filings. From 1980 to 1983, Ms. Wyrsch worked with U.S. Senator Alan K. Simpson from Wyoming and was his chief liaison and legislative assistant to the Senate Environment and Public Works Committee, which focused on energy from the perspective of conservation and environmental care.

Ms. Wyrsch holds a bachelor’s degree in English from the University of Wyoming and a juris doctor degree from GW Law. She also completed Harvard Business School’s Advanced Management Program.

For students looking to pursue a career in energy law, Ms. Wyrsch advises them to “find an area of the energy industry that you are passionate about, and learn everything you can about the companies and businesses that support that segment of the industry. This will help you understand where you can be of value

Hill School of Law. In 2012 she was selected to attend an environmental law master’s program at the Army’s expense and decided to enroll in GW’s LLM program.

“I’d heard from some of my colleagues in the Army, both civilian and military, that it had a very solid program and its location in D.C. meant that it had a lot of networking opportunities with a lot of federal agencies and expertise,” said Ms. Neuhauser on her decision of enrolling in GW’s LLM program.

Her thesis on environmental destruction and the U.S. military’s legal and ethical responsibilities in post-war environmental cleanup was published in the spring 2015 edition of Lewis and Clark’s Environmental Law Review. Another paper written during her time at GW was published in Louisiana State University’s Journal of Energy Law & Resources; this paper discussed the costs and benefits of competition between utilities and third

parties in the renewable energy market, with a concentration on solar power.

Having earned her LLM degree with highest honors in January 2015, Ms. Neuhauser is now a Lieutenant Colonel in the U.S. Army where she acts as chief of the Resource Sustainment and Restoration branch.

“My colleagues and I deal with environmental law issues confronting the Army, such as how best to comply with the Clean Air Act and Clean Water Act while ensuring mission readiness,” said Ms. Neuhauser on her current job.

Ms. Neuhauser has been working for the U.S. Army for the past seventeen years and is the recipient of two Bronze Star Medals.

The views expressed above do not reflect the official policy, position, or an endorsement of the Department of the Army, Department of Defense, or the U.S. Government. n

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continued on page 8

PROFILES

Loni Silva, JD ’12

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oni Silva is an attorney-advisor at the Federal Energy Regulatory Commission (FERC) in the Office of the General Counsel, Energy Markets, where she primarily focuses on independent system operator-northeast (ISOLoni Silva NE) and Public Utility Regulatory Policies Act (PURPA) issues.

After receiving her undergraduate degree in anthropology and political science, Ms. Silva worked for a year as a teacher in a small city in Poland. She then moved to the international hub of Istanbul, Turkey, to teach business English to executives and corporate groups. During the three and a half years

Alex Collet, JD ’16

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lex Collet grew up in a small town in northwestern Puerto Rico, where recreation is synonymous with spending afternoons at the beach swimming and snorkeling or gathering seagrapes and coconuts.

Thus, she started appreAlex Collet ciating nature at a young age and became interested in environmental disciplines in general. This led her to study biology at the University of Puerto Rico in Mayaguez (UPRM). At UPRM, Ms. Collet tailored her program of study to specialize in plant ecology and resource management. She conducted research at the Tropical Bryology Laboratory, where she assessed the viability of two tropical bryophyte species and identified the soil propagule bank of karstic and alluvial secondary forests in Puerto Rico.

Additionally, she participated in summer

she lived in Istanbul, she received her master’s degree in critical and cultural studies from Bosphorus University.

Ms. Silva realized her interest in energy law when considering career paths the summer after her 1L year. “When I really started to think about where my career might take me, energy law seemed the most exciting,” she says. Prior to law school, she spent two years as a project coordinator at an energy-related nonprofit in Portland, Oregon, which piqued her interest in the field. “Energy is needed for so much of what we do,” she says. “It’s a focused field, yet there are many aspects of the energy sector.”

At GW, Ms. Silva wasted no time in taking advantage of the many options to explore. She worked as a research assistant for Associate Dean LeRoy Paddock, researching such issues as the Deepwater Horizon oil spill and the infrastructure barriers to the development of electric vehicles. When it was time to select

her law journal note topic, she selected federal agency use of renewable energy certificates to meet statutory requirements, in part so she would have the opportunity to talk to an array of practitioners about federal energy policy. When FERC issued Order 1000 she decided to get a better understanding of the issues by completing an independent writing project on electric transmission siting.

Ms. Silva interned continuously during her second and third years. In her final semester, she interned at the Department of Interior, Office of the Secretary, where she focused primarily on renewable energy and transmission issues. Prior to that, she spent six months interning in the Office of the General Counsel at FERC, where she was offered a job upon graduation. Of her job at FERC, she says: “I get to work on complex and challenging issues, with some amazingly brilliant human beings.” n

research programs hosted by other universities in the United States. Her research experience, along with courses in restoration ecology, natural resources policy, and environmental justice, sparked her interest in environmental law and policy.

She also became interested in the interaction between energy and the environment, particularly in renewable and clean energy.

Ms. Collet decided to further her education by obtaining a JD degree. She chose to attend GW Law because its environmental and energy law program is one of the top in the country and offers an ample selection of courses that she intends to use to tailor her program of study. Further, the school’s location in Washington, D.C., provides access to a multitude of agencies and organizations that are at the forefront of law and policy.

Ms. Collet has capitalized on these offerings by enrolling in classes that have allowed her to learn about energy and the environment broadly and in more specialized contexts. Moreover, she has enjoyed coursework in other subjects that are related to both disciplines. This semester, for example, she is taking trade remedy

law. She says it has been eye-opening to learn how trade practices affect the domestic energy industry. Additionally, she has interned with The Wilderness Society, the U.S. Department of Energy, and—more recently—with The Nature Conservancy.

In the summer of 2014, Ms. Collet participated in the GW Law-University of Groningen Energy Law Research Program. She traveled to the city of Groningen in The Netherlands to attend a weeklong series of lectures and facility tours related to renewable energy that focused on smart grids, energy storage, wind energy, and biofuels. Her most memorable experiences from the program are the visits to EnTranCe (Energy Transition Centre) and Powermatching City Hoogkerk. The visit to EnTranCe included a tour of Zernike Science Park, a company facility that provides students and scientists the equipment they need to work on energy innovations. Alex recalls the tour as “impressive” because it helped her realize that providing quality service to the customer requires great continued on page 9

ENVIRONMENTAL AND ENERGY LAW PERSPECTIVES 7

PROFILES • RECENT EVENTS

Max Greenblum, JD ’16

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ax Greenblum came to the law school pursuing a career in environmental law. He first became interested in environmental issues as a teen, often spending weekends camping and hiking in state parks around his hometown of Austin, Texas. While an undergraduate at GW, double majoring in political science and international economics, his interest in environmental policy continued to develop and he wrote his honors thesis on the European Union Max Greenblum climate change policy.

In July 2010, following his graduation, Mr. Greenblum began serving as a Peace Corps Volunteer in El Salvador.

Placed in the sustainable agriculture and environmental education program, Mr. Greenblum relished the opportunity to

Adaptive Management Workshop from page 5

that terminology. More recently, USFS released its 2012 Planning Rule, which reinforces the agency’s adaptive approach to forest management planning by creating a more efficient and collaborative process for amending management plans in light of new knowledge. On the other hand, DOI has also prioritized adaptive management in recent years. DOI published its first “Adaptive Management Technical Guide” in 2007, a revised technical guide in 2009, and its “Adaptive Management Applications Guide” in 2012. In addition, USGS scientists and other experts have created a series of training videos on the use of adaptive management, which are hosted at the Bureau of Land Management (BLM)’s Knowledge Resource Center.

Representatives from other federal agencies, including the EPA, AEC, and the Corps, discussed some more limited examples of adaptive management-type

work outdoors. While in El Salvador, he led projects to construct composting latrines in national parks and trained many park guards to facilitate an environmental education curriculum so that they could better host and educate groups of school children. Working with subsistence farmers, Mr. Greenblum taught community members to raise tilapia using small-scale aquaculture techniques, cultivate and process soya beans and open-pollination corn, and make and use organic fertilizers, pesticides, and herbicides. He also applied for multiple grants, using the funds to subsidize the purchase of new cooking stoves. The improved stove technology used substantially less firewood, aiding efforts to combat deforestation, and provided tremendous health benefits by emitting less smoke.

After serving in El Salvador for three years, Mr. Greenblum returned to GW to attend law school. As a student, he has focused his environmental studies on land use law, renewable energy, international environmental law, and climate change.

As a member of the George Washington International Law Review, he is working on his note, which focuses on conflicts

practices within their agencies. The extent to which these agencies were able to engage in adaptive management appeared to depend largely on the nature of their statutory authority over various issues.

One key finding from the federal agency briefings was that the primary barriers to adaptive management are not necessarily legal—in fact, resource limitations appear to be the greatest barrier to truly robust adaptive management, followed by technical limitations. With respect to legal barriers, it seems that the extent to which law confines an agency from using adaptive management issue depends more on the substantive statute(s) governing the agency’s activities, as opposed to any procedural or administrative constraints imposed by the APA, NEPA, or other federal statutes. n Contributed by Jessica Wentz, Columbia Law School. See more at: bit.ly/gwenviro_scccl_adaptmgt

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between international environmental law and international investment law, and what the repercussions could be for a future global greenhouse gas emissions accord. He also spent the spring 2014 semester as an intern with the Division of Policy and Legislative Coordination, within the Environmental Protection Agency’s Office of Enforcement and Compliance Assurance. Additionally, he worked as a research assistant for Associate Dean LeRoy Paddock, who is currently writing a book chapter on “Community Benefits Agreements for Wind Facility Siting.” The chapter is for a book produced by the Academic Advisory Group on Energy for the Section on Environment, Energy, Resources, and Infrastructure Law of the International Bar Association, for which Dean Paddock is a member. Oxford University Press will publish the book in early 2016.

Mr. Greenblum spent this past summer working with the Department of Justice, and says he is excited to continue pursuing both his academic and professional interests in environmental law and policy. n

Wyrsch from page 6

to those companies and to the law firms and other businesses that provide services to those energy companies. Then, take advantage of the terrific team of professors and professionals available to you at GW Law to help you network and build relationships in the energy industry—they are very well respected and can help you.

Finally, be flexible and open minded about considering opportunities and possibilities—you never know how the dots may connect over the course of your career!” n

IN PRINT • PROFILES • PERSPECTIVES

IN PRINT LeRoy C. Paddock LeRoy C. Paddock published (with Jessica Wentz) a book chapter on The Netherlands in International Environmental Law: The Practitioner’s Guide to the Laws of the Planet (R. Martella and J.B. Grosko, eds.) (American Bar Association, 2014).

Emily Hammond Emily Hammond published “Chevron in Discretionary Space,” 83 Fordham L. Rev. 655 (2014); “Administrative Law’s Asymmetries of Statutory Origin,” 63 Texas L. Rev. (2015); and “Court-Agency Dialogue at the Boundaries of Reviewability,” Geo. Wash. L. Rev. Arguendo (2014). She also published Environmental Protection: Law and Policy (with Robert Glicksman, Dave Markell, Bill Buzbee, Daniel Mendelker, and Dan Bodansky) (Aspen, 7th ed., 2015).

Collet from page 7

labor and innovation to optimize the system and make it more efficient. “The future of energy,” she says, “depends on novel, out of the box ideas that will change the way energy is generated and consumed.” Powermatching City, which styles itself a “living lab demonstration of the future energy system,” on the other hand, introduced her to some of the downsides of innovation. While the concept is fascinating, “in order to accommodate these innovations we need to trade off privacy.” Overall, Ms. Collet

Electricity Reform from page 1

Robert L. Glicksman Robert L. Glicksman published the skills supplement Statutory Analysis in the Regulatory State (with R. Levy); (Foundation Press, 2014); Administrative Law: Agency Action in Context (with R. Levy) (Foundation Press, 2d ed., 2015); and Public Natural Resources Law (West 2d ed., releases published in October 2014 and February 2015). He also wrote a chapter titled “The Relative Efficacy of Coercive and Cooperative Enforcement Approaches to Water Pollution Control,” in Next Generation Environmental Compliance and Enforcement (with Dietrich Earnhart) (LeRoy C. Paddock and Jessica Wentz, eds.) (Environmental Law Institute, 2014). He published “A Holistic Look at Agency Enforcement” (with D. Markell) 93 N.C. L. Rev. 1 (2014); “EPA’s 2013 All Appropriate Inquiries Rulemaking Raises Litigation and Administrative Law Risks” (with T. Utzinger), 44 Envtl. L. Rep. 10763 (Sept. 2014); and “Coercive vs. Cooperative Enforcement: Effect of Enforcement Approach on Environmental Management” (with Dietrich Earnhart) 42 Int’l Rev. of L. & Econ. 135 (2015). n

describes the experience as enriching, not only for her academic and professional development, but also for her personal growth. She concludes, “I recommend the program to anyone who is interested in energy law. I cannot think of a better way to learn about the energy system in another country and how it compares to our country. Additionally, you get the chance to travel, become familiar with another culture, and meet people who share your interests.” n

Traditional Electricity Sector Regulation in Mexico The basic model for the electricity sector in Mexico, prior to the recent reforms, was based on a regulated federal monopoly on generation, transmission, and distribution of electricity throughout the country, with limited exceptions.

Article 27 of the Mexican constitution (prior to the amendment in 2013) committed electricity to the federal government’s regulatory authority: only the federal government could “generate, transmit, transform, distribute and supply electric energy that is to be used for the public service.”1 The Public Service of Electric Energy Act of 1975 (Ley del Servicio Público de Energía Eléctrica) set up the statutory framework, placing all responsibility for meeting the public’s electricity needs in a vertically integrated entity owned by the national government, the CFE.2 In 1992, as part of a broader drive for economic modernization, Mexico agreed to join the North America Free Trade Agreement (NAFTA) with the United States and Canada. As part of NAFTA, Mexico opened up some possibilities for private investment in electricity in the country, but with strict limitations consistent with the constitutional provisions in place at the time. Under NAFTA, the Mexican Government interpreted the constitution to prohibit electricity generation for consumers in Mexico, but allowed private investment in electricity generation that would be developed exclusively for export.3 Based on this interpretation, Mexico’s congress amended the Public Service of Electric Energy Act to allow independent electricity generation for exportation and to allow electricity imports by private companies or individuals for their own on-site use.4 The practical effect, though, was that Mexico continued as a net exporter of electricity to the United States; European, U.S.-based, and other foreign companies built or utilized continued on page 10

ENVIRONMENTAL AND ENERGY LAW PERSPECTIVES 9

PERSPECTIVES

Electricity Reform from page 9

generating capacity in Mexico to reach the U.S. market.5 As the energy landscape looked prior to 2013, there was still no “market” for electricity in Mexico, given that transmission and distribution were managed exclusively by CFE. However, private participation in generation had opened up under several exceptions, including generation for self-consumption, co-generation, and other limited opportunities for independent generators, mostly at a small scale.6 According to the Instituto de Investigaciones Eléctricas, independent generation accounted for about 23 percent of installed capacity by 2014.7

Constitutional Amendments In December 2013, Mexico amended several provisions of Articles 25, 27, and 28 of the country’s constitution.8 These changes included major shifts for the electricity sector, as well as petroleum and other hydrocarbons in Mexico. Overall, the Mexican Government described the objective of the energy reform program to “modernize and strengthen, without privatizing, Pemex [the state oil company] and the Federal Electricity Commission,”9 reflecting the political and cultural importance of the state-run enterprises.

Previously, the constitution had given the federal government an exclusive monopoly on generation, transmission, distribution, and supply of electricity “used for the public service.” The new amendments changed the paradigm, with the federal government maintaining “exclusive authority” over planning, transmission, and distribution, but no longer over generation. In other words, the constitution no longer prohibits private investment in electricity generation and supply to serve the general public.10 These changes opened the door to legislation to redesign the system and break up the vertically integrated, stateowned model of CFE.

Electric Industry Act of 2014 In August 2014, the Mexican congress approved the Electric Industry Act (Ley de la Industria Eléctrica), as part of a package of legislation designed to implement the constitutional amendments.11 The act includes competing objectives: guaranteeing “continuous, efficient, and secure” operation of the electricity sector for the benefit of the public, while also fulfilling obligations related to clean energy and pollution reduction.12 The act seeks to leapfrog several decades of developments in electricity restructuring in the United States and other developed countries by moving directly from a state-controlled monopoly system to a wholesale market that utilizes modern technology and methods for promoting competition among generation and demand-side resources. In the United States, for example, the Public Utility Regulatory Policies Act (PURPA) of 1978 laid the groundwork for wholesale market restructuring by requiring utilities to purchase electricity from qualifying independent generators (generally smaller, more efficient plants, such as small hydro or cogeneration).13 However, it took two decades before those independent generators gained guaranteed access to electricity markets on equal footing via Order 888 of the Federal Energy Regulatory Commission (FERC). Order 888 required “functional unbundling” of transmission services and provided for an open-access transmission tariff at non-discriminatory rates in the interstate transmission market.14 In this case, Mexico’s new act moves straight to imposing an obligation to offer open access to the national transmission market and distribution markets on “not unduly discriminatory terms.”15

New Agencies and Actors: Separating Policy and Regulatory Functions Mexico, like the United States, is a federal system, with overlapping authority between state and national governments.

1 0 THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

However, in Mexico, all aspects of the electricity sector are under federal jurisdiction, a point reaffirmed in the act.16 This greatly simplifies sectoral changes, in contrast to the United States, where jurisdiction over wholesale and retail electricity sales is split between the federal government and the states, respectively, and the boundaries of jurisdiction are frequent subjects of ongoing litigation.17 The Electric Industry Act describes roles for several different government agencies and entities in implementing reform and in managing the new, restructured electricity system. Some of the key agencies are: • Federal Electricity Commission (Comisión Federal de Electricidad, or CFE) • Energy Regulatory Commission (Comisión Reguladora de Energía, or CRE) • Ministry of Energy (Secretaría de Energía, or SENER) • National Energy Control Center (Centro Nacional de Control de Energía, or CENACE) These four entities already existed prior to the reform; however, the new law rearranges their relationships and functions. Prior to the reform, CFE owned and operated the vast majority of the country’s generation capacity, as well as the entire transmission grid and distribution system, as a vertically integrated entity. Under the new act, CENACE will be spun off from CFE as a separate, independent agency that manages the operation of the national electric grid, the dispatch of generating capacity, and a new wholesale electricity market.18 CRE assumes the primary regulatory role, with responsibilities ranging from issuing permits to generators; establishing terms for unbundling and legal separation of entities operating in different components of the electricity sector; granting Clean Energy Certificates (CEC); promulgating rules related to verifying CECs; issuing regulations on transmission and distribution tariffs; and regulating the operation of retail electricity suppliers.19 The Ministry of Energy, SENER, for its part, sets the country’s energy policy, and also has overlapping authority with the CRE in overseeing unbundling, CECs,

PERSPECTIVES

and promoting financing mechanisms for distributed renewable generation.20 Put simply, the Ministry of Energy holds a policy function, the CRE holds a regulatory function, and CENACE serves as the grid and wholesale market manager.21 The transitory provisions to the act describe the transformation process for CFE. The CFE’s basic governance structure from the 1975 Public Service of Electric Energy Act remains intact until a new organic statute for CFE is in place.22 The act grandfathers in existing permits and contracts with private parties for cogeneration, small and independent generation, and on-site generators/users, where applicable.23 However, CFE’s generation, transmission, distribution, and marketing functions will be subject to “strict legal separation,” including separation of accounting, operations, functions, and other legal matters.24

The Wholesale Electricity Market and Expanded Opportunities for Generation The August 2014 Electric Industry Act calls for the establishment of a wholesale electricity market, to be overseen by the Nation Energy Control Center (CENACE).25 This wholesale market will include markets for electricity sales, ancillary services, capacity, Clean Energy Certificates (analogous to renewable energy credits in many U.S. states), and other products as determined by regulations.26 Electricity generators (including state-owned generation under CFE), electricity marketers, and qualified large users are eligible to participate.

Generators may bid into auctions in the wholesale market, and generators, marketers, and large end users may also negotiate longer-term contractual agreements (power purchase agreements, or PPAs).27 Each participant must register with CENACE under a standard contract, and separate PPA-style contracts between producers and users/marketers must also be filed with that agency.28 In addition

to the wholesale market, CENACE also manages the dispatch of generation resources and demand-side resources (referred to as “controllable demand” in the statute).29

Mexico’s Electricity Sector and Climate Change Mitigation: Clean Energy Mexico’s electricity sector changes are occurring simultaneously with a push toward a comprehensive policy on climate change mitigation. This creates an opportunity to push the electricity sector toward greater incentives for development of renewable energy resources.

However, Mexico will need to set strong regulations under the Electric Industry Act in order to make sure the reform process can have a real impact on climate policy goals.

In June 2012, Mexico’s congress passed the General Climate Change Act (Ley General de Cambio Climático), which outlines the responsibilities of the federal, state, and municipal governments in the country.30 With regard to energy, this statute builds on other laws and regulations that Mexico has developed in the past decade to incentivize renewable energy, such as a key 2007 law on renewable energy use and financing.31 The General Climate Change Act lists bottom-line goals on countrywide greenhouse gas (GHG) emissions and on the deployment of “clean energy” sources.

With a baseline year of 2000, it sets an “indicative objective or aspirational” goal of 30 percent GHG emissions reductions by 2020, and 50 percent by 2050.32 The “aspirational” nature of the goal somewhat limits its effectiveness. However, the statute does list a number of specific mitigation and adaptation policies and benchmarks that agencies must meet in order to chart a path toward the overall goal. As one of these actions, the act requires the Ministry of Energy, along with CFE and CRE, to ensure that at least 35 percent of the country’s electricity is generated from “clean energy sources” by 2024.33

The General Climate Change Act creates an important institutional framework within the government for addressing these issues and may carry political weight in integrating climate change actions across different agencies and ministries. The goals in the act create a context within which the electricity and energy sector reforms and related legislation can be evaluated.

The electricity reforms in Mexico present a major opportunity to establish the policies needed for the country to meet its clean energy mandate and GHG emissions targets. The Electric Industry Act creates a market-based mechanism system, based on tradable “Clean Energy Certificates” (CECs), to incentivize this transition. The CEC program sets up the possibility for linking the electricity reform effort to two related goals: first, mitigation of greenhouse gas emissions and other pollution resulting from fossil-fuel energy generation; and second, the diversification of energy supply and promotion of decentralized, distributed generation. However, the Electricity Industry Act’s broad definition of “clean energy” is likely to hinder the strength and scope of the program’s impact, and Mexico will also face complex regulatory and technical questions about how to integrate renewable energy sources into its electrical grid at greater levels of market penetration.

The Electric Industry Act describes Clean Energy Certificates as negotiable credits that represent the tradable ‘clean’ attributes of energy produced from a defined category of sources.34 This credit system, similar to renewable portfolio standards and renewable energy credit programs employed in many U.S. states, is overseen by the Ministry of Energy in Mexico. The statute gives the ministry the responsibility to define parties’ obligations with regards to CECs.35 In the first quarter of the year, the ministry will be required to set the level of CECs that must be obtained for the following three years; once the level is set for a future year, the statute mandates that the requirement may not be reduced. continued on page 12

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Electricity Reform from page 11

What Counts as “Clean” Energy?

In order to evaluate whether the Clean Energy Certificate program can have an impact on Mexico’s state climate change policies, it is important to carefully examine how “clean energy” is defined and how the categories of applicable energy sources are delineated.

The Electric Industry Act defines the term very broadly, including the major renewable sources—wind, all forms of solar, and geothermal energy—but also many additional categories: hydroelectric power; nuclear power; fossil-fuel energy equipped with carbon capture and geological or biological carbon sequestration; certain categories of efficient cogeneration; and other low-carbon technologies as recognized by international standards.36 In other words, the statute’s “clean energy” encompasses everything that can be considered “low carbon.”

In practical terms, this has significance for how the CEC program and mandate will work. According to the U.S. Energy Information Administration, Mexico’s electricity in 2013 included 11 percent generation from hydroelectricity and 3 percent from non-hydro renewables (mostly geothermal), as well as generation from a single 1,610 MW nuclear plant (equivalent to roughly 3 percent of the country’s capacity).37 Most of the rest of the electricity comes from fossil fuel sources; in previous decades, oil/petroleum products accounted for the majority of electricity generation (due to the country’s large oil production industry), though the use of natural gas and coal has been increasing in proportion.38 By this initial measure, Mexico has at least 17 percent generation, in addition to any cogeneration or other sources that would be counted, within the statute’s definition of “clean energy.”

If conventional utility-scale electricity in the forms of hydro and nuclear power count under the clean energy scheme, it is not clear that the program would do much to incentivize a diversified portfolio of energy or effectively promote non-hydro

renewables at either the utility or distributed scale. Under a September 2014 draft of the Ministry of Energy’s regulations pursuant to the act, all Clean Energy Certificates would count equally, regardless of the source or technology,39 unlike many programs in the United States, which offer premium credits (for solar, for example) to specifically incentivize new technologies.40 This means that under the draft regulation, wind and solar energy would still be competing with large hydroelectric or nuclear projects for the same market incentives. Thus, although the clean energy goals may be useful in tracking Mexico’s progress toward lowering GHG emissions, the targets may be less ambitious than they otherwise would seem, and less likely to bring with them the environmental co-benefits of employing new renewable generation.

Regulatory Challenge: Including Distributed Generation Articles 68 through 70 of the Electric Industry Act specifically address the role of distributed generation resources in Mexico.41 Distributed sources are exempt from the permit requirements of the act and are defined as power from a source that is “interconnected in a distribution circuit with a high concentration of load centers.”42 The act guarantees open, non-discriminatory access for distributed generation into the distribution grid and other networks where electricity may be sold.43 While the pre-reform electricity system had operated with a state-run monopoly over most generation sources, the new act is not as drastic of a change in this regard as it may seem on the surface.

Mexico had already taken several policy steps toward facilitating distributed renewable generation.44 CRE issued a resolution in 2007 to promote the use of distributed solar energy via net metering and created model contracts and agreements for doing so.45 This program was designed as a part of a nationwide strategy

1 2 THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

of diversification of energy sources and the use of renewable sources.

The program in 2007 was initially limited to solar generators with no more than 10 kW capacity for residential users, and 30 kW for other small scale generators.46 The model contract requires individual generators to pay for construction and installation, as well as the difference between the cost of conventional meters and the equipment and meters necessary to allow for net metering.47 However, the contract offers a significant benefit by allowing generators to carry over credits whenever they supply more electricity to the grid than they receive, for up to 12 months.48 It remains to be seen how a Clean Energy Certificate program will mesh with these previously existing incentives.

However, given the broad definition of “clean energy,” there is the potential that distributed generation may be lost in the broader array of sources included in a mandate that the Ministry of Energy may set. At this stage, the presence of non-hydro renewables in the electricity grid is low, although wind power is growing quickly, particularly in the states of Baja California and Oaxaca.49 Observers have touted the potential appeal of private investment from U.S. solar companies to grow the residential solar sector in Mexico as well.50 The regulatory framework in place will need to be paired with technical effort to ensure that the electrical grid can effectively and efficiently incorporate these sources as they come online.

In this regard, Mexico can learn from what countries in Europe, in particular, are experiencing as they reach a higher degree of market penetration from intermittent renewables.

Conclusions The Electric Industry Act represents only the first step in the process of implementing Mexico’s constitutional reforms.

The act lays out a roadmap for much of what will need to occur in the coming months and years,51 but leaves some critical aspects to be defined. In order

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to effectively implement these reforms, Mexico will need to tailor the regulatory framework under the act toward meeting its two separate, but potentially complementary goals: (1) reducing prices and improving public service through competition and greater efficiency, and (2) promoting a transition to cleaner energy.52 One of the major selling points for the reform is to create a more efficient system that will lead to lower prices and allow CFE to shut down less-efficient generation. Unlike some other countries undertaking reform efforts, Mexico is not privatizing the electricity industry directly by selling state-owned assets.53 However, it is opening up the “productive state enterprises” to competition with the intent of reducing overall costs. If private companies can actually generate electricity at lower costs, it will call into question whether the remaining stateowned generation (CFE will still own two-thirds or more of total capacity54) can remain in place without significant subsidies. In addition, lower prices overall may not necessarily mean lower prices for individual Mexican customers.

Residential users already pay less than industrial customer classes in Mexico under the regulated system; while introducing competition may have the potential to reduce those higher tariffs, doing so without (what would be unpopular) residential tariff increases may be difficult.55 On the regulatory side, Mexico appears to be taking significant steps toward putting a regulatory framework in place to handle the transition. Concepts of wholesale markets are not new, but integrating demand-side resources will require sophisticated management of the electricity grid. Mexico can draw on other examples in the region (particularly the larger countries in South America) with experience in restructuring the electricity sector. However, for distributed generation, Mexico’s resources are still on a limited scale in comparison with Europe or the United States. Nonetheless, if regulations can effectively incentivize renewable generation—through specialized categories of CECs (unlike what is in

the proposed regulation) or otherwise— distributed resources have the potential to grow substantially. As they do so, the country will need to address some of the issues currently facing utilities in developed markets, including the so-called “death spiral” of decreased utility revenues (and potential reliability concerns) from policies that generously compensate distributed sources via net metering, feed-in tariffs, or other mechanisms.56 As Mexico begins its transition toward a restructured electricity market, it should continue to examine whether the system can appropriately incentivize investment in renewable generation that will move the country toward its environmental and climate goals. As the country identifies further regulatory and technical barriers, the country will hopefully be able to build on these steps to construct a successful, modern electricity system that is more effective and grows closer to environmental sustainability. n

Endnotes See Constitución Política de los Estados Unidos Mexicanos [Constitution of Mexico], art. 27, para.

6 (version no longer in force, published June 6, 2011, available at http://pdba. georgetown.edu/Constitutions/Mexico/ vigente.html). Translations from Mexican sources are the author’s unless otherwise noted.

1

2 Ley del Servicio Público de Energía Eléctrica, 22 de diciembre de 1975 (Mex.), abrogated by Ley de Industria Eléctrica, 11 de agosto de 2014.

See North American Free Trade Agreement (NAFTA) Annex 602.3, proviso 5; see also José Juan González, Law and Regulation Governing Electricity Networks in Mexico in the Context of Regional Integrations with North and Central America, in Martha M. Roggenkamp et al., eds., Energy Networks and the Law: Innovation Solutions in Changing Markets 41-60 (2012).

3

4 Ley del Servicio Público de Energía Eléctrica, supra note 2, art. 3.

5

See José Juan González, supra note 3.

6 See Ley del Servicio Público de Energía Eléctrica, supra note 2, art. 36.

Adrián Inda Ruíz, Impact of Reforms on the Smart Grid Model of Mexico, IEEE Smart Grid Newsletter (Oct. 2014), available at http://smartgrid.ieee.org/ october-2014/1162-impact-of-reformson-the-smart-grid-model-of-mexico.

7

8 Decreto por el que se reforman y adicionan diversas disposiciones de la Constitución Política de los Estados Unidos Mexicanos, en Materia de Energía, de 20 de diciembre de 2013, available at http://www.diputados. gob.mx/LeyesBiblio/ref/dof/CPEUM_ ref_212_20dic13.pdf.

Gobierno de la República, Reforma Energética 3, available at http://reformas. gob.mx/wp-content/uploads/2014/04/ Explicacion_ampliada_de_la_Reforma_ Energetica1.pdf (accessed Dec. 5, 2014) (emphasis added).

9

Constitution of Mexico, art. 27, para. 6.

The new text reads (author translation): “[The Federal Government] has exclusive authority over the planning and control of the national electric system, as well as the public service of transmission and distribution of electric energy; for these activities, the Government shall not grant concessions, but may form contracts with private persons under terms as established by law. Such law shall describe how private persons may participate in other activities in the electricity industry.”

10

Ley de la Industria Eléctrica [Electric Industry Act], 11 de agosto de 2014. The Electric Industry Act was published in Mexico’s Official Journal on August 11, 2014 and took effect the following day.

11

12

Ley de la Industria Eléctrica art. 1.

Public Utility Regulatory Policies Act of 1978 § 210, codified as 16 U.S.C. § 824a-3.

13

14

See FERC Order No. 888 (2000).

15

Ley de la Industria Eléctrica art. 4.

16

Id. art. 7. continued on page 14

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Electricity Reform from page 13

See Federal Power Act § 201, 16 U.S.C. § 824. The D.C. Circuit’s decision last year striking down FERC’s demand response rule, currently on petition for review the Supreme Court, is the most recent example of litigation about the line between federal and state authority. See Electric Power Supply Ass’n v. FERC, No. 11-1486 (D.C. Cir. May 23, 2014).

17

noviembre de 2008 (Mex.) [Act for Renewable Energy Use and Financing the Energy Transition].

General Climate Change Act, supra, Transitory art. 2.

32

33

Id.

34

Id. arts. 121-129.

35

Id. art. 121.

18

See Ley de la Industria Eléctrica, supra, arts. 107-08.

Ley de la Industria Eléctria, art. 3, XXII.

Id. art. 12 (listing 53 responsibilities of the CRE under the statute).

U.S. Energy Information Administration, Mexico (Apr. 24, 2014), http://www.eia. gov/countries/analysisbriefs/Mexico/ mexico.pdf.

19

20

Id. art. 11.

See Mayer Brown LLP, Analysis of Mexico’s New Electric Industry Law, Legal Update, Aug. 14, 2014.

21

Ley de la Industria Eléctrica, Transitory art. 2.

22

23

Id.

24

Id. Transitory art. 4.

25

Id. arts. 94-96.

26

Id. arts. 94, 96.

27

Id. arts. 97, 106.

28

Id. arts. 97-98.

29

Id. art. 101.

Ley General de Cambio Climático, de 6 de junio de 2012 (Mex.). An English translation of the General Climate Change Act is published in Environmental Law Institute, What are the Next Steps? Legal Perspectives on Mexico’s General Law on Climate Change 23–67 (2012), available at http://www.eli.org/sites/ default/files/docs/what-are-the-nextsteps.pdf. While the General Climate Change Act deals with national policies for both mitigation of and adaptation to climate change, the focus here is on the sections on mitigation and how electricity reform in Mexico may affect these goals and policies.

30

See Ley Para el Aprovechamiento de Energías Renovables y el Financiamento de la Transición Energética, 28 de

31

36

37

38

See id.

Reglamento de la Ley de la Industria Eléctrica [Proposed Regulation] art. 12 (draft obtained Sept. 29, 2014; on file with author).

39

40 For example, Colorado’s renewables portfolio standard includes multipliers for “community-based” projects, certain solar projects, and sources that come online early in the program (prior to 2015). See Database of State Incentives for Renewable Energy, Colorado, http:// programs.dsireusa.org/system/program/ detail/133 (accessed Mar. 11, 2015).

Ley de la Industria Eléctrica, arts.

68-70.

41

42

Id. art. 3, XXIII.

Id. art. 68; see also Chadbourne & Parke LLP, Special Update: A New Power Market in Mexico, at 5 (Sept. 2014), available at http://www.chadbourne. com/files/Publication/cfbf25f4-52c14a46-8675-5298e9836121/Presentation/ PublicationAttachment/fba22689-74b64d28-b623-02318254c978/New_Power_ Market_Mexico_0914.pdf.

43

44 See Ley Para el Aprovechamiento de Energías Renovables y el Financiamento de la Transición Energética, 28 de noviembre de 2008 (Mex.) [Act for Renewable Energy Use and Financing the Energy Transition].

1 4 THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL

CRE Resolution RES/176/2007, de 7 de junio de 2007.

45

46

Id. Annex I.

47

Id. Annex I cl. 6.

48

Id. Annex I cl. 9.

See U.S. Energy Information Administration, supra note 37.

49

See Adam James, Here’s Why SolarCity Will Move into Mexico, GreenTech Media (Aug. 21, 2014), http://www. greentechmedia.com/articles/read/HeresWhy-SolarCity-Will-Move-into-Mexico.

50

See Ley de la Industria Eléctrica, Transitorios [Transitory Articles].

51

52

See id. art. 1.

See Sylvia Gaylord, Mexico’s Electricity Sector Reform in Perspective, Powermag. com, Dec. 8, 2014, http://www.powermag. com/mexicos-electricity-sector-reformin-perspective/?printmode=1 (comparing Mexico’s reform to Chile and other countries in Latin America).

53

See Chadbourne & Parke LLP, supra note 43.

54

55

See Gaylord, supra note 53.

56 See generally Peter Kind, Disruptive Challenges: Financial Implications and Strategic Responses to a Changing Retail Electric Business, Edison Electric Institute ( Jan. 2013), available at http://www. eei.org/ourissues/finance/documents/ disruptivechallenges.pdf; David Malkin, GE Digital Energy, ResultsBased Regulation: A Modern Approach to Modernize the Grid, http://files. publicaffairs.geblogs.com/files/2014/08/ Results-Based-Regulation.pdf (accessed Dec. 17, 2014).

WHAT’S NEW

2015 Jamie Grodsky Prize for Environmental Law Scholarship

G

W Law is pleased to award Major Jason Hull of the U.S. Air Force Judge Advocate General’s Corps with the 2015 Jamie Grodsky Prize for Environmental Law Scholarship. Major Hull’s paper, “Hey Now, Let’s Be Social: The Social Cost of Carbon and the Case for Its Inclusion in the Government’s Procurement of Electricity,” addresses the potential and policy for expanding the consideration of the climate changerelated costs of greenhouse gas emissions in federal government electricity procurement.

The Jamie Grodsky Prize for Environmental Law Scholarship was funded by a generous gift from Jamie A. Grodsky’s father, Dr. Gerold Grodsky, and memorial gifts from her friends.

It was established to honor Professor Grodsky’s legacy of leading-edge environmental scholarship by encouraging students to produce papers on important environmental issues. The prize is

awarded each year at a ceremony held in connection with the J.B. and Maurice C. Shapiro Environmental Law Conference (see page 1). An award of $5,000 is given for the best paper written by a GW Law JD, LLM, or SJD student in the field of environmental law, based on originality, innovation, depth of scholarship, the importance of the environmental issue addressed, and the quality of the writing and analysis. To receive the Grodsky Prize, a paper must be of publishable quality and make a significant contribution to the theory or practice of environmental law.

About this year’s Grodsky Prize winner: Major Jason Hull has been a member of the U.S. Air Force Judge Advocate General’s Corps for the past nine years and is currently serving as an environmental attorney with the Air Force Legal Services Agency, assigned to Air Education and Training Command on Joint Base San Antonio-Randolph, Texas.

Prior to his current assignment, he served as an Assistant Staff Judge Advocate at Hill Air Force Base in Utah and Beale Air Force Base in California. While in

Jason Hull

San Antonio, Major Hull served as a Medical Law Consultant for the Wilford Hall Medical Center and as a Medical Law Consultant/General Counsel for the tri-service Medical Education and Training Campus. In 2007, Major Hull deployed to Baghdad, Iraq, where he was continued on page 16

Energy Program Advisory Board Members Chair Charles A. Berardesco, JD ’83 Senior Vice President, Corporate Secretary and General Counsel North American Electric Reliability Corporation

Eugene R. Elrod Esq. Partner and Co-head, Global Energy Practice Sidley Austin, LLP

J. Andrew Murphy, JD ’87 Senior Managing Director Macquarie Infrastructure and Real Assets

Kevin C. Fitzgerald, JD ’91 Executive Vice President and General Counsel Pepco Holdings, Inc.

Earle H. O’Donnell, JD ’75 Partner Chair, Global Power Industry Group; Chair, Global Industry Group Council White & Case, LLP

Sanford L. Hartman Esq. Vice President and Managing Director, Law Pacific Gas and Electric Company

Daniel J. Oginsky, JD ’99 Executive Vice President US Regulated Grid Development ITC Holdings Corp.

George D. Cannon Jr., JD ’94 Partner Akin Gump Strauss Hauer & Feld

Robert H. Loeffler Esq. Senior Counsel Morrison & Foerster, LLP

Daniel F. Stenger, JD ’80 Partner Hogan Lovells US, LLP

Douglas E. Davidson, JD ’71 Partner Morgan, Lewis & Bockius, LLP

Diane Munns Senior Director, Clean Energy Collaboration Environmental Defense Fund

—————————————————————————————————————— Kathleen L. Barrón Senior Vice President of Federal Regulatory Affairs and Wholesale Market Policy Exelon Corporation

ENVIRONMENTAL AND ENERGY LAW PERSPECTIVES 1 5

Law School Environmental and Energy Law Program 2000 H Street, NW Washington, D.C. 20052

Symposium from page 1

Grodsky Prize from page 15

program is part of GW Law’s ongoing collaboration with the EPA and other institutions to support the agency’s Next Generation Compliance initiative. Presenters will focuse on how new technologies and systems for collecting and analyzing data can contribute to regulatory compliance and enforcement efforts. A follow-up conference will be held in April 2015 at Erasmus University Rotterdam on the use of management systems and the role of behavioral moti­ vations in environmental compliance and enforcement. n

dual-hatted as a Central Criminal Court of Iraq Staff Attorney and Liaison to Multi-National Division Baghdad in the Legal Headquarters of Task Force 134.

He is admitted to practice law before the Supreme Court of North Carolina, U.S. Air Force Court of Criminal Appeals, U.S. Court of Appeals for the Armed Forces, and U.S. Supreme Court. Prior to joining the Air Force, Major Hull worked as an attorney for the Small Business Administration’s Office of Disaster Assistance in Fort Worth, Texas. He obtained a BA in political science from Hartwick College in 2001, JD from Wake Forest University School of Law in 2005, and LLM in Government Procurement and Environmental Law from George Washington University Law School in 2014.

Information about the Grodsky Prize and previous winners can be found at: www.law.gwu.edu/Contribute/Pages/ GrodskyPrize.aspx. n

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ENVIRONMENTAL AND ENERGY LAW PERSPECTIVES Environmental and Energy Law Perspectives is published biannually by the Environmental and Energy Law Program at The George Washington University Law School.

Editor Lee Paddock, Associate Dean for Environmental Studies Assistant Editor Nicholas Bryner, Visiting Associate Professor of Law and Environmental Program Fellow Send questions or comments to: Lee Paddock lpaddock@law.gwu.edu 202.994.0417 The George Washington University Law School Environmental and Energy Law Program 2000 H Street, NW Washington, D.C. 20052 grad@law.gwu.edu www.law.gwu.edu/environmental bit.ly/linkedin_gwlaw_eelaw

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