With a Department of Environmental Protection that predates the U.S. Environmental Protection Agency, New Jersey has always been at the forefront of combating pollution, becoming only the third state to consolidate all environmental protection and conservation into one cohesive agency on April 22, 1970, and paving the way for environmental protection nationwide with the passage of the New Jersey Spill Compensation and Control Act (Spill Act) in 1976.

In September 2019, in an article entitled “The Market Has Spoken: Coal Is Dying,” Matt Egan of CNN Business wrote, "President Donald Trump has gutted regulations on the coal industry, falsely claimed that windmills cause cancer and installed a former coal lobbyist to lead the [U.S. Environmental Protection Agency] EPA. In the face of those efforts to rescue coal country, America’s aging fleet of coal-fired plants continues to shrink. New plants are not getting built. Trump’s vow to rip up environmental rules has been overwhelmed by an even more powerful force: the free market.

The National Highway Transportation Safety Administration (NHTSA) and the U.S. Environmental Protection Agency (EPA) have proposed a new reading of the Energy Policy and Conservation Act of 1975 (EPCA) that governs federal fuel economy standards. The regulations would relax federal greenhouse gas tailpipe standards and fuel economy standards, and preempt emissions standards put in place by California and adopted by other states.

Federal dams have been the focus of major disputes involving application of the Endangered Species Act (ESA), especially its §7 prohibitions on federal actions causing jeopardy to protected species. Operating agencies and project beneficiaries have sought to keep the ESA from restricting dam operations, including by arguing that such operations are non-discretionary and thus exempt. In proposing new ESA implementing rules, the Trump Administration suggested, but did not formally propose, that ongoing federal actions should be considered part of the “environmental baseline” for §7 purposes.

The 2018 wildfire season was the deadliest and most destructive on record in California, destroying thousands of structures. Gov. Gavin Newsom created a strike force to develop a comprehensive strategy to address the destabilizing effect of wildfires on the state’s electric utilities. In April 2019, the strike force issued a report outlining a vision for clean energy policies to reduce the impacts of climate change on wildfire risk, and in July, the newly created Commission on Catastrophic Wildfire Cost and Recovery released its recommendations.

Prof. Richard L. Revesz and Dr. Burcin Unel provide a useful, albeit no longer current, review of electric energy storage in Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions (Managing). The energy storage market has continued its rapid technical and manufacturing evolution. Those advances may reasonably be expected to impact today’s regulatory aims and frameworks, just as prior technological progress influenced administrative goals and processes.

In their paper, Managing the Future of the Electricity Grid: Energy Storage and Greenhouse Gas Emissions, Richard L. Revesz and Burcin Unel of New York University School of Law (NYU team or authors) highlight a critical (and often times contentious) issue that the energy industry is attempting to address: how to quantify and incorporate a societal value of decreased greenhouse gas emissions into the dollar value of incremental energy that is provided to the electric system.

The view that promoting the use of energy storage systems produces environmentally attractive results has been standard in policy circles. Policymakers have been enthusiastic about energy storage systems primarily because of their belief that cheaper and more prevalent storage options could help facilitate the integration of increased renewable energy generation and speed up the transition to a low-carbon grid. This beneficial outcome, however, is not guaranteed.

There is a movement among companies to use more renewable energy and less energy obtained from fossil fuels. Some are pledging to go “100% renewable,” while many others have set goals to rely on substantial percentages of renewable energy. In addition to setting these goals, many companies report on how much renewable energy they currently use, and convey this information in annual sustainability reports or in publicly issued statements and news releases.

On November 4, 2016, DOJ’s Environment and Natural Resources Division convened an extraordinary group of legal scholars and practitioners to discuss “The Future of Environmental Law.” Speaking before the presidential election but mindful of the transition possibilities, the symposium panelists identified and discussed cutting-edge issues in administrative law, natural resources law, and environmental enforcement that will be crucial going forward for both government lawyers and the environmental law profession as a whole.