This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By Abigail Hogan and Alexander Steinbach, Staff Editors, Vermont Journal of Environmental Law.

I. THE HISTORY OF PLASTIC PRODUCTION

Typically, when a new product comes on the scene, it takes several generations to evaluate its use and environmental impact. However, synthetic plastics really only began to take over around 50 years ago, and we’re already seeing a movement to ban, or at least drastically reduce, the material. Why has plastic made such a splash in so little time?

Plastic was originally developed from cellulose, or plant material. But in 1907, the first fully synthetic plastic was created.^[1] The difference between these two materials is that plastics made from plant material can actually break down, whereas synthetic plastic will only ever break into smaller pieces.^[2] In fact, “EPA reports that ‘every bit of plastic ever made still exists.’”^[3] Today, plastic and rubber are formed by polymers consisting of smaller units known as monomers.^[4] A vast majority of monomers are produced from petroleum and is therefore non-renewable.^[5] Around 4% of the world’s oil consumption is used as raw material in plastic production, and a similar amount is used as energy in the production process.^[6] In addition to the use of petroleum, plastic production requires the use of additives.^[7] A few chemical additives are: plasticizers, flame retardants, heat and UV stabilizers, biocides, pigments, and extenders.^[8] Several common additives are classified as hazardous according to the E.U. regulations and are classified as carcinogenic, mutagenic, harmful for reproductive health, harmful to aquatic life, or having persistent negative impacts on the environment.^[9]

This first plastic was used for electrical insulation, but it sparked a revolution in materials. New plastics were continuously developed for a multitude of uses, particularly as World War II necessitated more military uses. Not long after, 1960 was the first-time plastic was noticed as a concern when seen in ocean pollution.^[10] Besides polluting the ocean, plastics have negative health impacts on humans and the environment. Plastics harm human health because they release toxic chemicals throughout the life cycle of the product.^[11] However, because experimental studies exposing humans to environmental contaminants are not allowed, it is difficult to establish indisputable causal relationships between exposure to the chemicals and adverse effects in humans.^[12] In addition, the detrimental effects and disease produced from plastic exposure takes decades to produce adverse effects in human health.^[13] In some instances, it may even take generations before disease manifests itself in the human population.^[14] This makes pinpointing the exact chemical causing the disease difficult. However, there is overwhelming evidence that exposures to anthropogenic chemicals contribute to adverse effects in animals.^[15]

II. RECYCLING TO THE RESCUE

In order to fix this negative publicity revolving around plastic and plastic production recycling emerged as a solution due to pressure of environmental groups and outside forces.^[16] Recycling however, in not the only solution that is needed to solve the plastic waste crises that is polluting our oceans. Chemical, trash, and fossil fuel companies took advantage of the call from environmental groups for more efficient resource production and promoted the use of recycling and the use of consumer responsibility.^[17] After World War II, environmental groups began to push business groups to promote recycling.^[18] The Business sector responded and created and industry that organized around the recycling of paper, glass, metal, and plastic separated out by municipal solid waste.^[19] This industry has next to zero impact on resource conservation measured in global sales and delivers only weak results in terms of pollution reduction or energy savings.^[20]

It is important to note that not every material is created equal in the world of recycling. Glass, aluminum, glass, and metal can be recycled infinitely.^[21] Plastic can range from being unrecyclable, recyclable only once or twice, or at a maximum about 7 times.^[22] After this limit, the plastic will end up in a landfill. Furthermore, many do not even allow their plastic to have this long of a life. “Humans buy about 1,000,000 plastic bottles per minute in total. Only about 23% of plastic bottles are recycled within the U.S.”^[23] Paper can be recycled 5-7 times.^[24] However, it is also important to recognize that recycling any material requires an energy input. Only aluminum and paper take less energy to recycle than to make from scratch.^[25] In other words, it takes more energy to transform that piece of plastic into a new use than it does to make more plastic. This is another reason recycling is not a complete solution.

Single use plastic is a particularly damaging part of the industry. Much of the plastic made is designed for only one use and to then be thrown away. One example is that a plastic shopping bag usually serves the consumer for 12 minutes, on average, but takes up to 1,000 years to break down.^[26] This includes plastic shopping bags, 4 trillion of which are used annually, plastic straws, cutlery, take away boxes, coffee cups (which often give the appearance of being paper but are usually lined with plastic making them unrecyclable), and packaging.^[27] 32% of the plastic packaging goes straight into our oceans, and even if plastic does make it to a landfill (which are poorly designed structures preventing much of anything from breaking down due to a lack of oxygen) it will likely leach chemicals into the groundwater.^[28]

National and global environmental burdens from material extraction, manufacturing, and distribution show no signs of abating.^[29] In fact, “the fossil fuel industry plans to increase plastic production by 40 percent over the next decade.”^[30] However, industry success from recycling is promising. Today, it employs around 1.1 million people, generates an annual payroll of $37 billion, and grosses $236 billion in revenue.^[31] The success of the recycling economy is mirrored in the status of recycling as a success story for environmentalism.^[32] Recycling is the most thoroughly developed practice for managing waste other than burying it or burning it.^[33] Recycling is a flourish practice and it is popular, in fact, more Americans recycle than vote.^[34]

III. THE SHORTCOMINGS OF RECYCLING AND THE IMPACT ON OUR OCEANS

Although the upsides of recycling are positive, recycling as we know it addresses at most only one-third of the solid municipal waste produced and leaves untouched other far larger waste fractions.^[35] Burying and burning continue to be the most common forms of waste management resulting in hazardous effects for human health the environment.^[36] The result is that recycling programs promote pragmatic solutions that are not reducing the effects of plastic waste and the negative impacts on the environment. This has negative impacts on aquatic life and the marine environment.

Typically, large debris, called “macroplastics,” have long been studied to determine their impact on the environment.^[37] The presence of macroplastics in the environment create an aesthetic issue, as well as damage boats and cause repercussions for the tourist industry, and finally, macroplastics can cause harm to aquatic life by injuring or killing marine birds, mammals, fish, and reptiles that result from plastic entanglement and ingestion.^[38] In recent years, there has been concern regarding microplastics. Microplastics are the tiny plastic granules and small plastics fragments that are derived from the breakdown of macroplastics.^[39] The presence of small plastic fragments in the ocean was first noted in the 1970s.^[40] By 2017, the amount of plastic in the ocean totaled 165 million tons.^[41] By 2050, experts say there will be more plastic than fish in the ocean.^[42] Renewed scientific discovery in microplastics over the last decade revealed that these contaminants are ubiquitous and widespread within the marine environment, with the potential to cause harm to biota.^[43]

Microplastics and microplastics are often confused by fish and eaten as food. If they survive eating this plastic, both the fish and humans are harmed. “Fish in the North Pacific ingest 12,000 to 24,000 tons of plastic each year, which can cause intestinal injury and death and transfers plastic up the food chain to bigger fish, marine mammals and human seafood eaters.”^[44] Plastic is responsible for the deaths of whales, seabirds, sea turtles, and fish.^[45] It also takes over many endangered species habitats in the ocean.^[46] Preventing more plastic from entering the ocean is vital to the survival of many marine species.

One of the areas that consumers have a lot of power is in the single use plastic world. Plastic bags, cutlery, straws, take away coffee cups, and much more can be completely eliminated by simply bringing your own reusable container. Doing so will even save you money, even with the purchase of the reusable alternative (which is often unnecessary as many use what they already have).^[47] This is because many grocery stores now charge for plastic bags, and many coffee shops offer discounts for bringing your own container.^[48] Beyond consumer power, industrial consumers of plastic like grocery stores are beginning to take up some responsibility as well. Plastic bans have been initiated in many cities, and that number is growing. Hawaii and California have even initiated state-wide plastic bans.^[49] Some cities have banned plastic straws altogether.^[50] Others choose to tax single use plastics in hopes to deter consumers.^[51]

IV. CONCLUSION: LEGISLATURES AND CONSUMERS NEED TO ADDRESS THE PROBLEM

The invention of synthetic plastic has done wonders for modern civilization. However, its convenience comes at a heavy price. The environmental impact of plastic no longer makes single use plastic a viable option for society. Single use plastic is one of the largest contributors to pollution, yet one of the easiest to replace by consumers. While legislation is also needed to correct this problem, when consumers stop demanding single use plastic, producers stop making it. It is imperative that we address the problem of plastic pollution and production immediately.

^[1] Conflicts in Chemistry: The Case of Plastics, Science History Institute, https://www.sciencehistory.org/the-history-and-future-of-plastics (last visited Mar. 11, 2019).

^[2] Audrey Holmes, How Many Times Can That Be Recycled?, Earth 911 (June 15, 2017), https://earth911.com/business-policy/how-many-times-recycled/.

^[3] Ocean Plastics Pollution: A Global Tragedy for Our Oceans and Sea Life, Center for Biological Diversity, https://www.biologicaldiversity.org/campaigns/ocean_plastics/ (last visited Mar. 11, 2019).

^[4] Markus Klar, David Gunnarsson, Andreas Prevodnik, Cecilia Hedfors, and Ulrika Dahl, Everything you (Don’t) Want to Know About Plastics, 11-24, 15 (2014).

^[5] Id. at 16.

^[6] Id.

^[7] Id.

^[8] Id.

^[9] Id.

^[10] Conflicts, supra note 1.

^[11] See Everything You Know, supra note 4 at 18.

^[12] Id.

^[13] Id.

^[14] Id.

^[15] Id.

^[16] Samantha MacBride, Recycling Reconsidered: The Present Failure and Future Promises of Environmental Action in the U.S., 3 MIT Press (2012).

^[17] Id. at 8.

^[18] Id.

^[19] Id.

^[20] Id.

^[21] Holmes, supra note 2.

^[22] Id.

^[23] Fact Sheet: Single Use Plastics, Earth Day, https://www.earthday.org/2018/03/29/fact-sheet-single-use-plastics/ (last visited Mar. 11, 2019).

^[24] Holmes supra note 2.

^[25] How Recycling Saves Energy, Harmony Enterprises, Inc., https://harmony1.com/recycling-saves-energy/ (last visited Mar. 11, 2019).

^[26] Trevor Nace, Here’s A List Of Every City In The US To Ban Plastic Bags, Will Your City Be Next? (Sept. 20, 2018), https://www.forbes.com/sites/trevornace/2018/09/20/heres-a-list-of-every-city-in-the-us-to-ban-plastic-bags-will-your-city-be-next/#b706d663243c.

^[27] Earth Day, supra note 23.

^[28] Id.

^[29] MacBride, supra note 16, at 8.

^[30] Ocean Plastics, supra note 3.

^[31] MacBride supra note 16, at 8.

^[32] Id. at 9.

^[33] Id.

^[34] Id.

^[35] Id.

^[36] Id.

^[37] Matthew Cole et al., Microplastics as Contaminants in the Marine Environment: A review, 62 Marine Pollution Bull., 2588, 2589 (2011) (discussing microplastic and its impact on the marine environment).

^[38] Id.

^[39] Id.

^[40] Id.

^[41] Rebecca Harrington, By 2050, the Oceans Could Have More Plastic Than Fish, Business Insider (Jan. 26, 2017), https://www.businessinsider.com/plastic-in-ocean-outweighs-fish-evidence-report-2017-1.

^[42] Id.

^[43] Id.

^[44] Ocean Plastics, supra note 3.

^[45] Id.

^[46] Id.

^[47] Clear Barrett, What’s the Return on Investing in a Reusable Coffee Cup?, Financial Times (Feb. 7, 2017), https://www.ft.com/content/edddb47c-0b22-11e8-839d-41ca06376bf2.

^[48] Why Do Some Charge for Plastic Bags and Others Don’t? Shoppers Adjusting to Grocery Bag Ban, Crown Poly, http://www.crownpoly.com/charge-plastic-bags-others-dont-shoppers-adjusting-grocery-bag-ban/ (last visited Mar. 11, 2019).

^[49] Nace, supra note 26.

^[50] Melissa Locker, Here are the U.S. Cities That Have Banned Plastic Straws So Far, Fast Company (June 1, 2018), https://www.fastcompany.com/40580132/here-are-the-u-s-cities-that-have-banned-plastic-straws-so-far.

^[51] State Plastic and Paper Bag Legislation, NCSL (Feb. 27, 2019), http://www.ncsl.org/research/environment-and-natural-resources/plastic-bag-legislation.aspx.

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

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By John Niedzwiecki*

I. An algae bloom in the Gulf of Mexico is wreaking havoc on Florida’s economy and environment. An effective state and local response can help provide a solution.

Florida’s southwest coast, once a haven to wildlife and tourists alike, is experiencing one of the worst red tides in recent memory. Red tides, harmful algae blooms (“HABs”) which often have a red hue which affect both inland and coastal waterways, are common occurrences in Florida, but they have increased in both intensity and frequency in recent years. This blog post will discuss the problems that red tides pose to communities in Florida and the legal structures that could help provide a solution to this growing problem.

First, this blog post will discuss the background of red tides in Florida, including their historical occurrence, effect on local economies, and effect on wildlife and the environment. Second, the blog will review the natural and man-made factors that contribute to the development of red tides in Florida. Finally, I will discuss the potential legal responses to red tide. Although this blog post limits the discussion of red tides to Florida, it is important to note that red tides are not limited to Florida, and HABs occur around the world.

Red tides in Florida present a large-scale, fast-changing environmental problem. The red tide currently impacting the state is having a dramatic effect on both the state’s economy, plant life and wildlife. It is likely that, in the future, state and local governments across the country will have a larger role in finding solutions to environmental problems that are not contained to one community or state. By finding a solution to the problem of red tides in the legal system, it is possible that Floridians, and people watching in other states, can see how activism on the local level can bring about positive change that impacts individuals, businesses, and communities.

II. Red tides are a relatively common occurrence in Florida historically, and they have strong impacts on the state’s economy and environment.

Before discussing the presence of red tides in Florida, it is important to define what red tides are and how they affect the environments that they touch. “Red tide” is a term generally used “to describe many different kinds of harmful algal blooms” and can be a variety of colors, including “brown, blue, green, yellow, and more.”^[1] Algal blooms are “higher-than-normal concentrations of algae [which include] toxic or nuisance algal species that may pose a serious and recurrent threat to human health, wildlife, marine ecosystems, fisheries, coastal aesthetics, and [the] economy.”^[2]

In Florida, red tides typically involve one of the most harmful species of HABs, the karenia brevis. Karenia brevis produces “neurotoxins that cause damage to nerve cells or tissues [and] kill large numbers of fish, birds, and other marine mammals.”^[3] Shellfish that consume Karenia brevis become poisonous to human consumers, and people can inhale toxins released into the air by seaspray, which cause symptoms including “itchy and watery eyes, wheezing, shortness of breath, coughing, and chest tightness.”^[4] Red tides are a frequent occurrence in Florida and “appear off the state’s coast almost every year.”^[5] Red tides have been “documented…along Florida’s Gulf Coast since the 1840s.”^[6] The ongoing red tide has been present for over 10 months, the longest duration of a red tide since 2006.”^[7] 

Red tides in Florida have had strong social and cultural effects on local communities throughout the state. HABs, in general, can lead to “loss of recreational and commercial opportunities, disruption of…cultural practices, conflict among resource users, loss of community identity tied to using coastal resources, and social stress in affected families and communities.”^[8] In Florida, red tides can mean additional stress for communities that depend on the coast both for leisure and work, and individuals have fewer opportunities to meet with other people that share their interests, which builds community bonds. For example, recreational fishers lose the chance to fish together when beaches are closed.

Red tides also have deep impacts on the economies of localities across Florida. The presence of red tides can disrupt the ability of individuals to go to work and causes an increase in the use of medical resources, because “respiratory and gastrointestinal illnesses increase during red tides” and can cause up to a 54% increase in hospital admissions for coastal residents.^[9] Red tides have the unfortunate effect of depressing tourism, because beaches become “strewn…with the stinking carcasses of fish, eels, porpoises, turtles, [and] manatees.”^[10] Nationwide, HABs cost “at least $82 million per year including lost income for fisheries, lost recreational opportunities, decreased business in tourism industries, public health costs of illness, and expenses for monitoring and management.”^[11] While it is difficult to estimate exactly how much of an impact red tides have on Florida’s economy every year, red tides have a significant impact on the livelihoods of individuals and communities across the state.

Finally, red tides can negatively impact the wildlife and environment across very large areas of the state. In the current red tide, “almost 300 sea turtles have been found dead since January [2018]” in just four Florida counties south of Tampa, and a biologist at the Florida Fish and Wildlife Conservation Commission noted that “he believed that a majority of the turtle deaths were attributable to the red tide.”^[12] Additionally, the “number of manatee deaths…this year [as of August had] already exceeded the total for all of 2017” with 554 deaths in 2018 compared to 538 total in 2017.^[13] The pattern of rising death rates has been observed for other threatened species across the state, and while it is difficult to attribute the new deaths entirely to the presence of red tide, the two correlate.

III. Scientific research is split on the causes of red tides, but both natural and man-made factors can contribute to the development of red tides.

There are several natural factors that contribute to the growth of red tides. The Florida Department of Health reports that red tides develop “when biology (the organisms), chemistry (natural or man-made nutrients for growth), and physics (concentrating and transport mechanisms) interact to produce the algal bloom.”^[14] Without all three factors present, a red tide will not develop. In addition, scientists have discovered that “oceanic and estuarine circulation and river flow greatly influence the…combined physical (e.g., currents, upwellings, etc.) – the chemical (e.g., salinity, nutrients, etc.) factors of the systems.”^[15] If the factors that contribute to red tide have the ability to travel and interact with each other, the change of a red tide developing rise much higher.

The organisms, chemistry, and physics that can cause red tides existed before humans developed Florida, but man-made factors can also contribute to the development and growth of red tides. Humans contribute to red tides by increasing the amount of nutrients in the ecosystem, development, increasing the surface temperature of the Gulf of Mexico, and rolling back environmental protections. The “dumping of fertilizer and human waste” into Florida’s waters contributes to red tides, because the “excess nutrients” give the organisms even more energy to grow than what is naturally present in the ecosystem.^[16] Fertilizers, along with human and animal wastes, contain large amounts of nutrients that help the algae grow much faster than they otherwise would. As Florida continues to grow its population and its industrial base develops, the problem of excess man-made nutrients in the environment will likely only get worse. In the past few decades, Florida’s “landscape and the flow of water has been radically altered by agriculture, canals, ditches, dikes, levees, and the sprawling housing developments that have sprouted as the state’s population has boomed.”^[17] This development has contributed to the rise of red tides, because the wetlands that previously flowered runoff into aquifers or estuaries now “rushes rapidly, unfiltered, into rivers and bays and into the gulf, typically loaded with agricultural nutrients.”^[18]

While climate change’s effects on red tides and the rising of sea temperatures is still uncertain, it appears that “the incidences of red tides…have increased since the 1950s and 1960s [and] climate change could be a factor [because] warmer waters…are congenial to growth.”^[19] As the effects of climate change become more pronounced in the decades to come, researchers will have more data to see if there is a connection between ride tides and rising water temperatures.

Politically, it appears that governments, at all levels, have been unable to respond effectively to the problem. Some political groups in Florida blame Governor Rick Scott “for weakening the state’s water quality requirements and monitoring [but] Scott blames Sen. Bill Nelson…for not doing something before now to stop” red tides.^[20] At the very least, it looks like political actors in both parties have been unable or unwilling to cooperate across different levels of government or across the aisle to come up with a solution. The political gridlock does not appear to be coming to an end any time soon, but there are several potential solutions to the problem of red tide.

IV. There are several potential legal responses to red tide in Florida. State and local governments can and should take an active role in fighting the effects of red tide.

Lawmakers can take action to limit the growth of red tides by encouraging scientific breakthroughs, improving coordination among governments, researchers, and businesses, and tightening fertilizer ordinances The responsibility for addressing the problems caused by red tides has fallen on the Florida’s state and local governments. The legal system could provide a solution to the red tide problem by supporting scientific solutions, encouraging coordination of mitigation activity across governments, and enacting stricter fertilizer ordinances. Finding scientific responses to red tides are complex because scientists are uncertain of “what effects [the methods] could have on the ecosystem,”^[21] and because the geographic extent of the red tides covers “hundreds to thousands of square kilometers of shelf waters and extending down to 50 [meters].”^[22] The state and local governments could support the effort that scientists are making by providing scientists researching the problem with additional funding, expertise, and data.

In general, coordination and information-sharing on red tides is improving among governments, private parties, and scientists, but there is still much work to be done. While “some of the [current] coordination is formal, most of it consists of informal regional partnerships with common interests.”^[23] Florida should formalize the coordination system among localities across the state. If each locality was able to look at the data available from other areas in the state and responses were coordinated across large regions, there would likely be an overall more effective response. Localities and the state as a whole only stand to gain from deeper coordination, but only the state legislature and governor can create the legal structures that are necessary. It was possible for Florida to respond to the threat of hurricanes by developing state-wide emergency response plans, and it should be no different for red tides and other environmental problems.

Finally, the legal system in Florida can respond to the threat of red tides by developing stricter fertilizer ordinances that would deprive the ecosystem of the man-made nutrients that contribute to the growth of red tides. While simply depriving waterways of man-made nutrients will not be enough to stop all red tides, researchers argue that it could help slow down the growth of red tide.^[24] However, current restrictions on fertilizers “differ as to type and extent” which limits their effectiveness and make it difficult for individuals and businesses to comply with the laws.^[25] By creating a uniform standard that applied throughout the state, lawmakers could “lower the costs of compliance” while ensuring that firms in the fertilizer industry are not “geographically disadvantaged.”^[26] While some argue that having a single, uniform standard would lead to an overall weaker set of ordinances, it is likely that having at least some standard statewide that all organizations comply with would have an impact on red tides.^[27]

V. Conclusion: The legal system can rise to meet the red tide threat.

Red tides are a problem that threatens the cultural life, economy, and environment of Florida. While red tides have impacted Florida’s coastlines since at least the mid-1800s, recent red tides have grown in strength, duration, and frequency, and as the climate changes, it is likely that red tides will change as well. Researchers have found that while both natural or man-made factors can create red tides, the legal system can respond to this growing problem. If the legal system supports the work of scientists, improves coordination amongst stakeholders, and creates stricter fertilizer ordinances, it is possible that communities throughout the state can respond in an effective way to red tides. Scientists and lawmakers certainly do not have all the answers to the problem of red tides, but by taking firm action today, Florida can become a more environmentally resilient state that leads the way as other states face their own environmental problems.

 

*John Niedzwiecki, Senior Editor, Georgetown Environmental Law Review. Originally published on August 29, 2018 in the Georgetown Environmental Law Review Online.

^[1] The Red Tide Control & Mitigation Program, Report to Stakeholders 4 (2010).

^[2] Id. at 4.

^[3] Id. at 5.

^[4] Id.

^[5] Tryggvi Adalbjornsson and Melissa Gomez, A Toxic Tide is Killing Florida Wildlife, N.Y. Times, July 30, 2018, https://www.nytimes.com/2018/07/30/climate/florida-red-tide-algae.html.

^[6] Florida Dept. of Health, Frequently Asked Questions: Red Tide 1 (2014).

^[7] Adalbjornsson, supra note 5.

^[8] Lorraine Backer, Impacts of Florida red tides on coastal communities, 8 Harmful Algae 618, 620-21 (2009).

^[9] Michael Nedelman, Florida’s Toxic Algae Problem: ‘Red tide’ and ‘green slime’, CNN (Aug. 18, 2018), https://www.cnn.com/2018/08/16/health/toxic-algae-bloom-health/index.html.

^[10] Joel Achenbach, Kate Furby, and Alex Horton, Florida declares a state of emergency as red tide kills animals and disrupts tourism, The Wash. Post, Aug. 14, 2018, https://www.washingtonpost.com/news/speaking-of-science/wp/2018/08/14/red-tide-algaes-deadly-trail-of-marine-animals-has-triggered-a-state-of-emergency-in-florida/?noredirect=on.

^[11] E.B. Jewett, et al., Interagency Working Group on Harmful Algal Blooms, Hypoxia, and Human Health of the Joint Subcommittee on Ocean Science and Technology, Harmful Algal Bloom Management and Response: Assessment and Plan 1 (2008).

^[12] Adalbjornsson, supra note 5.

^[13] Craig Pittman, More manatees have died in Florida so far this year than in all of 2017. Here’s why, Tampa Bay Times, Aug. 21, 2018, https://www.tampabay.com/news/environment/wildlife/Red-Tide-s-continuing-toll-The-554-dead-manatees-in-2018-already-surpasses-last-year-s-total-_171056483.

^[14] Florida Dept. of Health, supra note 6, at 1.

^[15] Kevin Sellner, et al., Harmful Algal Blooms: Causes, Impacts and Detection, 30 J. of Industrial Microbiology & Biotechnology 383, 386 (2003).

^[16] Nedelman, supra note 9.

^[17] Achenbach, supra note 10.

^[18] Id.

^[19] Id.

^[20] Pittman, supra note 13.

^[21] Achenbach, supra note 10.

^[22] Karen Steidinger, Historical perspective on Karenia brevis red tide research in the Gulf of Mexico, 8 Harmful Algae 549, 556 (2009).

^[23] Jewett, supra note 11, at 3.

^[24] Barbara Kirkpatrick, et al., Human responses to Florida red tides: Policy awareness and adherence to local fertilizer ordinances, 493 Science of the Total Environment 898, 898-909.

^[25] Kirkpatrick, supra note 24, at 903.

^[26] Id.

^[27] Id.

 

This post is part of the Environmental Law Review Syndicate, a multi-school online forum run by student editors from the nation’s leading environmental law reviews.

__________________________________________

By Elizabeth Doherty* 

I. Introduction

Climate change is internationally recognized as the biggest threat facing the world today.^[1] This threat transcends politics, economics, and social views. In 2017 we saw historic flooding, hurricanes, wildfires, and now record snowfall in the southeastern United States.^[2] These and other natural disasters are exacerbated by anthropogenic climate change. While it may be too late to prevent global temperatures from rising two degrees Celsius, we must make whatever changes possible to prevent temperatures from rising even higher.

In the United States, almost one-third of total greenhouse gas (GHG) emissions come from the electricity sector alone.^[3] If we transition our electricity sector to renewable technologies, we will be able to eliminate a significant portion of our GHG contributions. Further, the transportation sector accounts for another 28% (in 2016) of U.S. GHG emissions.^[4] If we electrify the transportation sector and transition to renewable energy technologies, we will be able to eliminate more than half of our national GHG emissions. If we are to successfully combat climate change, the United States must become a global leader and make significant steps toward the transition to a clean energy economy.

The United States federal government has used the tax system to change behavior for decades and as our electricity industry introduces cleaner technologies, that system should be leveraged again to include all economic classes in the energy transition. The Energy Policy Act of 1992 created the renewable electricity production tax credit (PTC), which provides a per-kilowatt-hour credit for business investments in qualified renewable energies.^[5] Solar photovoltaic technologies were not added to this list until the American Jobs Creation Act of 2004 (AJCA).^[6]  In addition to the PTC, Congress also created the residential investment tax credit, also known as the residential energy efficient property credit, or “Section 25D credit,” which provides a 30 percent tax credit on investment for renewable energy equipment placed in service during the taxable year.^[7] These efforts, along with other federal and state initiatives, have led to dramatic increases in renewable technology deployment and integration over the past decade.^[8]

Despite the dramatic progress seen in recent years, legislatures have failed to include low-income residential consumers in the transition to clean energy production.^[9] The PTC is applicable only to businesses that produce electricity from renewable sources and the Section 25D credit is only accessible to those residential customers with enough tax appetite.^[10] This has contributed to a growing cost-shifting issue for residential solar photovoltaic investment.^[11] Cost-shifting occurs because most current state net metering policies allow residential rooftop solar customers to eliminate their electric bill altogether and avoid paying for the fixed costs associated with using the electric grid.^[12] With current ratemaking, this leaves the utility with a smaller pool of customers from whom they can recover those costs, thus raising the electric bills of non-solar customers and creating a cross-subsidy effect.^[13]

This paper explores the current status of federal incentives for residential photovoltaic investment, explains the negative externality associated with these incentives, and proposes a solution. The solution involves an environmental tax on electricity generators based on the carbon-emitting quality of the utilized resources. The revenue from the carbon tax will then be used to fund a low-income grant program for residential renewable solar photovoltaic investment.

II. How Does the Section 25D Credit Affect Residential Rooftop Solar?

The Section 25D credit is a key incentive for solar investment in the United States.^[14] The Section 25D credit was originally introduced in the Energy Tax Act of 1978 and has been amended and extended four times since.^[15] Most recently, the Preventing Americans from Tax Hikes Act extended the Section 25D tax credit for qualifying solar technologies through 2021.^[16] Although this program has been widely successful, it has contributed to the increasing cost-shifting effect, disproportionately impeding low-income participation in the energy transition.^[17]

The Section 25D Tax Credit

The Section 25D tax credit currently “allows taxpayers to claim a tax credit for properties that generate renewable energy…that they install on their residence.”^[18] The credit value is equal to 30% of the purchase and installation expenditures, with no maximum value, for solar technologies until 2020.^[19] From 2020 to 2021 the credit will be reduced to 26%. In its final year, 2021 to 2022, the credit will be further reduced to 22% of expenditures.^[20]

Cost-Shifting Effect of Current Incentives

The Section 25D tax credit contributes to the cost-shifting effect on non-solar residential consumers.^[21] Most states with rooftop solar integration have enacted net metering policies to compensate residential customers for their energy production on their electric bill.^[22] Net metering is an accounting mechanism that provides utility customers that have an interconnected, operating solar system with a credit on their electric bill, most often equal to the retail rate of electricity multiplied by kilowatt-hours (kWhs) produced.^[23] Total bill amounts represent the month’s net energy usage. This is done using a bidirectional meter that flows in one direction when the customer is consuming more than they are generating and flows in the opposite direction when the customer is producing more than they consume.^[24] At the end of each billing cycle, the utility will calculate each customer’s net usage and bill them accordingly (charge if consumption is higher than production or credit if production is higher than consumption).^[25]

Current utility rate structures require rates that are “just and reasonable”  to prevent excessive utility profits and unreasonable price discrimination while providing utilities with enough revenue to operate and more.^[26] In making such determinations, the regulatory body, usually called the state public utility commission (PUC), will allocate all fixed costs associated with delivering electricity to customers (such as grid maintenance) evenly to all the utility’s customers.^[27] When the solar electricity-producing customers are able to offset this cost with net metering, the public utility commission will necessarily allow the utility to raise their rates to maintain cost recovery.^[28] The solar customers will not realize the increase in rates because their net metering rate will also increase.^[29] Non-solar customers, however, see their rates increase. In sum, when residential electricity consumers invest in solar technology, utilities shift the customers’ portion of fixed costs to other residential electricity consumers who have not invested in solar technology.

Current incentive programs exacerbate the cost-shifting effect of net metering.^[30] With the current investment tax credit available for residential solar projects, the customer must have the requisite tax appetite to take advantage of any tax incentive.^[31] Customers that do not have the tax appetite are less likely to invest in solar and are therefore more likely to experience cost-shifting.^[32]

Disproportionate Impact on Low-Income Communities

Low-income consumers are particularly vulnerable to electricity price fluctuations and the cost-shifting effect which, coupled with other barriers to entry into the solar industry, further disadvantage these communities.^[33] The increase in solar technology integration in the United States provides an opportunity to address inequities associated with low-income communities, such as the high cost of housing, unemployment, and environmental justice.^[34] Energy is generally accepted as a “basic need in modern industrialized societies.”^[35] Low-income residents in the United States spend a higher percentage of their household income on energy expenditures, partly because it is more difficult for them to adjust to price fluctuations with less energy-efficient homes.^[36] Further, once higher-income households have invested in rooftop solar photovoltaics, the low-income customers will likely be the only customer class left paying the utilities’ fixed costs.

Low-income households are also uniquely vulnerable to fluctuations in energy prices due to their proportionally high energy burden compared to moderate- and high-income households.^[37] Economists use the phrase “energy burden” when referring to “the disproportionate allocation of financial resources among low-income households on energy expenditures.”^[38] More specifically, “[l]ow-income households spend 10 percent or more of their income on energy expenses,” and “the very poor . . . spend an upwards of 20 percent on energy purchases.”^[39] As a result, it is particularly important to create incentive programs that will not exacerbate this burden. Additionally, electricity demand for low-income households is relatively price inelastic;^[40] therefore, they are acutely susceptible to any changes in electricity rates. Policies that increase the price of electricity also increase the likelihood of energy poverty and the chances that a low-income household will not be able to pay their bill and their electricity will be shut off. In the winter or other extreme weather events, this could lead to death.^[41]  As such, low-income residents are uniquely vulnerable and disproportionately affected by the cost-shifting effect of net metering policies.

In addition to lack of capital, low-income customers face other barriers to entry into the solar photovoltaic generation market.^[42] These barriers include a lack of homeownership and poor credit scores.^[43] Any resident that desires to install solar panels to generate electricity must own property upon which the system can be built.^[44] If a customer is renting their dwelling, or living in an apartment complex without roof rights, then the customer cannot install solar on their property without the landlord’s permission.^[45] Even if ownership is not an issue, low-income households typically lack the credit necessary to take out a loan to finance the system.^[46]

The cross-subsidy effect increases electricity costs for non-solar customers who are often low-income customers, and therefore, applies almost exclusively to the class of citizens least able to handle such a burden.

III.  Proposed Federal Carbon Tax

There should be a federal carbon tax imposed on electric generating facilities proportional to their carbon footprint. To address the cross-subsidy issues with net metering, tax revenues can then fund a grant to low-income users subsidizing solar photovoltaic system installation. In contrast with other forms of taxation, environmental taxation “is not designed primarily for revenue-raising or as an instrument directed to marginally influence behavior, but rather strives for fundamental and structural changes in the behavior of economic actors.”^[47] The carbon tax should be designed to fundamentally and structurally change electricity suppliers’ purchasing behaviors from fossil fuel generation to renewable generation.

For carbon-intensive fuels, such as coal, the tax rate would be higher than the rate for less carbon-intensive fuels, such as natural gas. The tax rate should be set equal to the average social cost of carbon to reflect the cost to society of using such fuels and to include as many externalities as possible in the calculation.^[48] Finally, the revenues from this program must be earmarked first for a low-income residential grant program to stimulate rooftop solar investment and secondly to fund energy efficiency initiatives. This comprehensive, double-dividend tax should help alleviate the cross-subsidy effects on low-income communities.

Tax Base

The tax base should include all electric-generating facilities that release carbon dioxide. The generators are directly responsible for emissions related to electricity production and are therefore the most appropriate party to tax. Further, several states have begun transitioning away from traditional rate regulation and toward retail choice. In such states, electric utilities were once capable of owning and producing their own electricity but are now prohibited from doing this and must purchase the electricity wholesale from third-party producers.^[49] If this proposed federal tax were imposed on utilities, it would affect each state differently, depending on how their rate regulation is structured. Although generating facilities will likely pass the cost of this new tax on to power purchasers, the tax will still affect behavioral change at all levels in the energy market, from energy producer to consumer. This will make large-scale renewables more cost-competitive with other generation sources and further incentivize a transition away from fossil fuels.

FERC Order No. 888, issued in 1996, allowed states to deregulate their wholesale markets by unbundling wholesale transactions from the generation and distribution components to encourage open access and competition.^[50] In those states, energy generators and distributors (called distribution utilities) are not the same entity. For example, Massachusetts in 1997, with the Electric Industry Restructuring Act, became one of the early states to adopt this new, deregulated model of electricity regulation.^[51] As a result, a federal tax on utilities would affect each state differently. Further, states that have deregulated, such as Massachusetts, would be disproportionately impacted. It would not be proper for utilities in restructured states to be taxed based on the carbon content of their customers’ electricity because they are not responsible for the type of energy delivered to their customers. This would not result in the behavioral change that this proposed tax is designed to effect. If the tax were imposed on generating facilities, the states where utilities own their generation would not be unjustly affected because they would still be the owners of the production facility and would therefore be considered generators and be taxed similarly to the other generators.

Electric generating facilities will likely pass the cost of this tax through to electricity suppliers, which would help influence the behavior of the people responsible for deciding between energy sources. If generators pass the cost of the tax to their consumers, then renewable technologies will be more cost-competitive and consumers will be more likely to invest in a sustainable future. Further, as suppliers invest in renewable technologies, the overall cost of renewable technologies for all customer classes is likely to decrease. A low-income renewable energy grant, funded by the tax revenues, should make up the remaining difference.

The tax base should be the total number of kWhs produced at each facility. Coal-fired power plants consume some of the energy that they produce in the process of carbon-capture and sequestration. For these and other similarly-situated facilities, the generator should also be responsible for the carbon dioxide emissions resulting from the energy that is consumed on-site. Thus, as energy is being generated, the facility’s tax base is increasing. While this method is most in line with the goals of this proposed carbon tax, an economic analysis should be conducted to consider whether this cost would discourage carbon-capture and sequestration by coal-fired generating units. If it would discourage such behaviors, then Congress should consider exempting the kWhs consumed on-site.

Tax Rate

The tax rate should be the average social cost of carbon as applied to each generating facility such that their per kWh charge reflects the social cost of carbon emitted for each kWh produced at that particular facility. In other words, if the social cost of carbon is x per ton of carbon dioxide, then a facility’s tax rate would be equal to the amount of carbon dioxide emitted to produce a single kWh multiplied by x. This rate would then be multiplied by the total kWh production of the facility to get the generator’s final tax liability.

There is a higher administrative burden associated with this tax rate structure because each facility would have its own rate, but it would be a more reflective tax policy. By linking the tax rate directly with the negative behaviors that the tax seeks to change, this policy follows traditional Pigouvian tax theory. In 1920, A. C. Pigou concluded,

[T]here is no reason to expect that self-interest will tend to bring about equality between the values of marginal net social products of investments in different industries when the values of social net product and of trade net product in those industries diverge. . . . It is, however, possible for the State, if it so chooses, to remove the divergence in any field by “extraordinary encouragements” or “extraordinary restraints” upon investments in that field. The most obvious forms, which these encouragements and restraints may assume, are, of course, those of bounties and taxes.^[52]

This proposed tax shall address the divergence between electricity generators’ carbon dioxide pollution and its social costs. In this situation, carbon dioxide’s negative externality requires the “extraordinary restraints,” or tax. The revenue shall be used to stimulate the positive externality and fund the “extraordinary encouragement” through a low-income grant program.

Other Factors for Consideration

The tax, as proposed, would not require an administrative burden beyond establishing the tax rates for each type of generating facility. It would be simplest for each regional transmission organization (RTO) or independent system operator (ISO) to administer the carbon tax program. These entities already have a record of electricity production from each generator and would be able to most efficiently collect the tax. Once the tax rate has been calculated and implemented, the RTO/ISO could impose and collect the tax at the time of sale of any electricity in the wholesale market. This would not require a major change in current market operations.

There is a very low likelihood for fraud or abuse. This tax will charge only electricity generators; therefore, the pool of tax payers is limited and there is necessarily a record of transactions to verify production levels. A tax-liable entity would not be able to “hide” production or otherwise lie about production because it is recorded in the regional Generation Information System.^[53]

Some states and regions have already implemented carbon pricing mechanisms and applied them directly to electricity generators. These areas include California’s cap and trade system, the Regional Greenhouse Gas Initiative, and the recently adopted Massachusetts emissions trading scheme.^[54] In these areas, the proposed carbon tax would be an additional incentive. However, if a state adopted a carbon tax that directly charged electric generators, the generators should be able to deduct this from their federal carbon tax liability. This would allow states to adopt additional carbon taxes as they see fit.

Not all of the electricity consumed in the United States has been generated in the United States. For example, the Northeast imports electricity from Hydro-Quebec, a large-scale hydroelectric facility in Canada.^[55] For imported electricity, there should be a border-tax adjustment. This proposal does not suggest taxing any emissions from large-scale hydroelectric facilities.

IV. Low-Income Residential Grant Program

The revenues of the carbon tax should be earmarked for a low-income residential grant program for investments in solar photovoltaic systems. This program would provide grants directly to consumers looking to install solar photovoltaic systems. Most low-income households have neither the tax appetite to take advantage of current tax incentives nor the credit required for loan programs. Further, these households do not have the upfront capital necessary for any renewable investment.^[56] The proposed carbon tax and other federal incentives for renewable technology integration have exacerbated the cost-shifting effect which this grant program would help remedy.

The administrative burden to implement the grant program will be higher than that of implementing another tax credit program; however, another tax credit program would not address the problem that this program seeks to solve because low-income households do not have the requisite tax appetite for tax credits. A refundable tax credit might also have a lower administrative burden, but low-income households likely could not wait months to realize the credit. This grant program would allow the government to send a check directly to the low-income customer prior to the customer making the up-front investment. This may also help a low-income customer secure loan financing if they can demonstrate that they will receive the grant money.

Double-Dividend Tax Theory

By earmarking the tax revenues to encourage low-income investments in renewable energy, this policy is seemingly at odds with the double-dividend tax theory. However, the grant program  will reduce another economically inefficient tax burden, which is consistent with double-dividend theory. This theory describes two dividends: “[t]he first dividend refers to the environmental impact of the environmental tax and the second to the economic impact of the use of the tax revenues.”^[57] Here, the first dividend of the carbon tax addresses the environmental impact of carbon dioxide emissions. The second dividend is the use of tax revenue to remedy the economic impacts of other renewable state and federal subsidies on low-income communities. The proposed tax policy includes dedicating the revenue to a particular purpose, but that purpose is to reduce the existing, economically inefficient burden on low-income, residential electricity consumers.

The Low-Income Grant Program

The Internal Revenue Service would administer the low-income grant program on a per-application basis. Low-income residents who have purchased, installed, and placed into service solar facilities for use at their residence (or have contracted to do so) shall certify as such and receive immediate compensation. This compensation may be signed over to a loan servicer in advance to use as collateral for the consumer to be approved for a loan to purchase the solar system. If a low-income resident decided to invest in solar photovoltaics through a cooperative, partnership-flip agreement, or community solar arrangement, they would similarly be able to sign over their grant check.

The grant program should offer the same value as the Section 25D tax credit: 30% of the overall investment. Because these programs are effectively exclusive and together should cover all residential customer income levels, it is fair to set the incentive amounts equal. Although there likely will not be customers that qualify for both incentives, there should nonetheless be a provision restricting any household from realizing benefits from both programs. Finally, this grant program should be continued and extended for as long as there is a similar incentive provided, through tax credits, to moderate- to high-income residential customers.

Energy Efficiency and Climate Adaptation

Any and all funds that are not distributed through the low-income grant program shall be distributed to the states on a per-capita basis with the stipulation that 80% of the funds be used towards increasing energy efficiency and 20% towards climate adaptation measures within the state. The carbon tax will likely generate substantial revenue and not all of it will be realized by low-income residential customers. The purpose of this tax policy is to help all citizens of the United States transition into a clean, sustainable energy future. Energy efficiency measures and climate adaptation investments are critical pieces of this transition.

Energy efficiency investments will reduce load on the electric grid, reduce electricity demand and facilitate the movement towards electric transportation. If energy efficiency can reduce residential electricity demand, it will become easier to integrate electric transportation. These changes can help ensure an ongoing, stable society in the face of climate change threats.

V. Conclusion

Current federal tax incentives for residential investments in renewable solar photovoltaic systems exclude low-income consumers. Low-income consumers often do not have the tax appetite to take advantage of tax credits, lack the homeownership requirement for the Section 25D credit, and do not have the funding to invest upfront, nor the credit to obtain a loan. As such, current net metering policies encourage moderate- to high-income investment, creating a cross-subsidy effect and increasing the growing class divide between high-income citizens and low-income citizens.

It is imperative that we transition our current electricity sector to a clean, renewable energy economy if we hope to mitigate climate change impacts on our society. This transition will require all members to adjust to a new economy, a new electric grid, and other demand-side changes, such as driving electric vehicles. A whole-system evolution of this type requires the participation and inclusion of all members of society. As such, the federal government needs to stimulate and encourage investments from all customer classes. The current system only provides incentives for moderate- to high-income residents.

The carbon tax and low-income grant program proposed in this paper would help transition all sectors of the American economy to a low-carbon future and would address the disproportionate impact of other, cost-shifting renewable incentive programs on low-income communities.

This carbon tax would increase the cost-competitiveness of large-scale renewable energy facilities by increasing the cost of carbon-intensive energy generation. It would directly and proportionally punish the emitters of carbon dioxide pollution for the social cost of their actions. This direct link between the negative behavior and the tax creates the most efficient tax mechanism to encourage behavioral change. The tax revenues would then be dedicated to a low-income grant program with excess funds dedicated to energy efficiency and climate change adaptation measures. This policy will further encourage renewable energy integration and will discourage fossil-fuel electricity generation.

If we are to take climate change seriously, the United States federal government should strongly consider a federal carbon tax, similar to the one proposed here, and invest 100% of the proceeds in preparation for the upcoming energy transition. This tax policy would get us one step closer to securing a safe, healthy, and sustainable future for our generations and generations to follow.

*Elizabeth Doherty, 3L, Vermont Law School and Symposium Editor, Vermont Journal of Environmental Law

^[1] Jake Schmidt, Since 2005 the G7 Has Recognized Threat of Climate Change, NRDC (May 25, 2017), https://www.nrdc.org/experts/2005-g7-has-recognized-threat-climate-change.

^[2] Adam B. Smith, 2017 U.S. Billion-Dollar Weather and Climate Disasters, Climate.gov (Jan. 8, 2018), https://www.climate.gov/news-features/blogs/beyond-data/2017-us-billion-dollar-weather-and-climate-disasters-historic-year.

^[3] Sources of Greenhouse Gas Emissions Envtl. Protection Agency (Apr. 11, 2018), https://www.epa.gov/ghgemissions/sources-greenhouse-gas-emissions.

^[4] Id.

^[5] 26 U.S.C. § 45 (2012); Energy Policy Act of 1992, Pub. L. No. 102–486, 106 Stat. 2776 (1992).

^[6] American Jobs Creation Act of 2004 (AJCA), Pub. L. No. 108–357, 118 Stat. 1418 (2004).

^[7] 26 U.S.C. § 25D (2016); Margot L. Crandall-Hollick & Molly F. Sherlock, Cong. Research Serv., R42089, Residential Energy Tax Credits: Overview and Analysis 3 (2016).

^[8] Gideon Weissman et al., Env’t Am., Renewables on the Rise 10 (2017).

^[9] Grid Alternatives et al., Low-Income Solar Policy Guide 8 (2016).

^[10] 26 U.S.C. §§ 48, 25D.

^[11] Grid Alternatives et al., supra note 9, at 13.

^[12] See generally Jim Lazar, Regulatory Assistance Project, Electricity Regulation in the US: A Guide 79 (2d ed. 2016) (describing net metering policies).

^[13] Cherrelle Eid et al., The Impact of Net-Metering on Cross Subsidies Between Network Users 1 (2014).

^[14] Sadie Cox et al., Clean Energy Sols. Ctr., Solar Power: Policy Overview and Good Practices 12 (2015).

^[15] Crandall-Hollick & Sherlock, supra note 7, at 17–20.

^[16] Id. at 20.

^[17] Grid Alternatives et al., supra note 9, at 8.

^[18] Crandall-Hollick & Sherlock, supra note 7, at 3.

^[19] Id.

^[20] Id. at 20.

^[21] Grid Alternatives et al., supra note 9, at 8.

^[22] Luke Richardson, Virtual Net Metering: What is It? How Does It Work?, EnergySage (Sept. 8, 2016) http://news.energysage.com/virtual-net-metering-what-is-it-how-does-it-work/.

^[23] Net Metering, Solar Energy Indus. Ass’n, https://www.seia.org/initiatives/net-metering (last visited Apr. 25, 2018).

^[24] Lazar, supra note 12, at 134.

^[25] Eid et al., supra note 13, at 1.

^[26] Leonardo Giacchino & Jonathan Lesser, Fundamentals of Energy Regulation 48 (2d ed. 2013).

^[27] Id. at 179.

^[28] Id. at 223.

^[29] Id.

^[30] Grid Alternatives et al., supra note 9, at 8.

^[31] Mark Bolinger et al., Lawrence Berkeley Nat’l Lab., An Analysis of the Costs, Benefits, and Implications of Different Approaches to Capturing the Value of Renewable Energy Tax Incentives i (2014).

^[32] Id.

^[33]Grid Alternatives et al., supra note 9, at 8.

^[34] Id. at 11.

^[35] Diana Hernández & Stephen Bird, Energy Burden and the Need for Integrated Low-Income Housing and Energy Policy 7 (Policy Studies Org. ed. 2010).

^[36] Id.

^[37] Id.

^[38] Id.

^[39] Id. Note that these statistics refer to overall home energy costs and are not limited strictly to electricity costs.

^[40] Grid Alternatives et al., supra note 9, at 8.

^[41] See, e.g., Inst. for Energy & the Env’t, Vt. Law Sch., Energy Costs and Burdens in Vermont (2014) (analyzing energy poverty in Vermont).

^[42] Grid Alternatives et al., supra note 9, at 8–11.

^[43] Id.

^[44] Id. at 9.

^[45] Id. While it is possible to purchase and install a solar facility with an additional contract with the landlord, practical considerations make it highly unlikely and infeasible.

^[46] Id. at 8.

^[47] Michael G. Faure & Stefan E. Weishaar, The Role of Environmental Taxation: Economics and the Law, in Handbook of Research on Environmental Taxation 399, 399 (Janet E. Milne & Mikael Skou Andersen eds., 2012).

^[48] There is not a general consensus on what the true social cost of carbon is; therefore the rate should be based on the average social cost of carbon as determined by expert agencies.

^[49] Kenneth C. Baldwin, Energy Facility Siting, in Capturing the Power of Electric Restructuring 133–173, 135 (Joey Lee Miranda ed., 2009); see John W. Wadsworth, Electric Industry Restructuring in Massachusetts 103 (explaining how Massachusetts is an example of a state that has deregulated its electricity sector to disallow utilities from owning their own generation, allowed new generators to enter the market, and created renewable incentives within this framework to encourage renewable development).

^[50] Id.

^[51] Gregory Bialecki & Richard Sullivan, Jr., Exec. Office of Hous. & Econ. Dev. & Exec. Office of Energy & Envtl. Affairs, Recent Electricity Market Reforms in Massachusetts 4 (2011).

^[52] Janet E. Milne & Mikael Skou Andersen, Introduction to Environmental Taxation Concepts and Research, in Handbook of Research on Environmental Taxation 15, 16 (Janet E. Milne & Mikael Skou Andersen eds., 2012) (quoting A. C. Pigou, The Economics of Welfare v (1920)).

^[53] See, e.g., Resource Mix, ISO-New England (Apr. 27, 2018), https://www.iso-ne.com/about/key-stats/resource-mix.

^[54] Massachusetts Introduces Additional Cap-and-Trade System, Int’l Carbon Action Partnership (ICAP), https://icapcarbonaction.com/en/news-archive/483-massachusetts-introduces-additional-cap-and-trade-system (Apr. 27, 2018); Jackson Morris & Bruce Ho, California Leads Off: Now RGGI Must Grab the Climate Baton, NRDC (July 19, 2017), https://www.nrdc.org/experts/jackson-morris/california-leads-now-rggi-must-grab-climate-baton.

^[55] See generally Inter-Area Operating Agreements and Asset Owner Agreements, ISO-New England (Apr. 27, 2018), https://www.iso-ne.com/participate/governing-agreements/interconnection-operating-asset-owners/ (detailing ISO-NE’s agreement with Hydro-Quebec).

^[56] Grid Alternatives et al., supra note 9, at 8.

^[57] Milne & Anderson, supra note 52, at 24.