Solar Energy Politics: Texas and Florida are on Divergent Paths

Solar panels near San Antonio, Texas form one of the largest solar farms in the United States. Photo: BlueWing.

This November, Floridians will vote to approve an amendment to the constitution called the "Rights of Electricity Consumers Regarding Solar Energy Choice."  It was one of two solar-related ballot initiatives vying to make it onto the ballot.  The other initiative would have made it easier for third parties to finance solar panel installations, paving the way for Florida to tap into its considerable solar energy potential.  Unfortunately, the initiative didn't receive enough signatures.  The initiative that did make it onto the ballot makes it harder to finance solar installations, a fact that didn't get past Florida Supreme Court Justice Barbara Pariente.  She wrote:

"Masquerading as a pro-solar energy initiative, this proposed constitutional amendment, supported by some of Florida's major investor-owned electric utility companies, actually seeks to constitutionalize the status quo," Pariente wrote. "This ballot initiative is the proverbial 'wolf in sheep's clothing.'"

I wrote about these competing ballot initiatives in November 2015, noting that third-party financing receives political support from both liberal and conservative organizations:

"It is very frustrating to see how special interests affect politics," he said. "I'm a Republican solar contractor and I'm frustrated with my party in this state for taking donations that do not allow for competition and free market."

So it seems unlikely that Florida will tap into its solar potential (third in the country) anytime soon.  Contrast that with Texas, another state with enormous solar potential.  As John Hall points out, Texas is rapidly expanding its solar energy production:

• Texas solar is growing very quickly: The new Solar Market Insight report declares Texas to be the fastest growing utility-scale solar market in the country. In fact, by the end of 2016, SEIA predicts the state’s total installed solar capacity will more than double. And within the next five years, Texas’ solar market will be second only to California’s (although, considering California has one-fourth of the solar power potential of Texas, we could eclipse the Golden State in coming years).

• Solar will make up nearly all of Texas’ new power capacity: The Electric Reliability Council of Texas (ERCOT), the grid operator for nearly 90 percent of the state, evaluated the state’s 2031 electricity needs in eight potential scenarios based on trends and forecasts. For example, one scenario is the continuation of low natural gas prices and another reflects high economic growth. Solar was the common denominator in all eight of the scenarios: This clean energy resource represented nearly all of the new capacity in each one. In other words, the grid operator predicts that – in all foreseeable future circumstances — a lot more solar is coming online in the state. 

• Texans agree on solar: A recent poll from the Texas Clean Energy Coalition found an overwhelming majority — 85 percent — of the state’s voters want to increase the use of clean energy (including solar) to generate electricity. Even better, both sides of the aisle are on board: That group included 78 percent of Republican respondents.

More and more states (partisanship aside) are embracing solar energy and tapping into their potential.  At the moment, solar energy cannot be relied on to provide the entirety of a state's electricity needs, of course, but solar is a worthy component of any state's energy portfolio.  Texas appears to recognize that.  Florida - the Sunshine State - has work to do to catch up.  

Big Cypress: Oil and Gas Rights and Multiple Use in the National Park System

Big Cypress.  Photo: Franco Tobias.

Last semester I taught Natural Resources Law for the first time.  Some of the themes we encountered throughout the course included: the federal government's constitutional authority over public lands, the National Park Service's dual mandate to promote conservation and enjoyment of NPS lands, "multiple use" principles, tribal natural resources, wilderness designation, federal energy policy, oil and gas exploration and development, environmental review requirements, and designation of critical habitat for endangered species.  As if tailor made as a law school exam hypothetical, controversial management of the Big Cypress national preserve in South Florida invokes each of these themes.

National Parks Traveler has an excellent rundown of the preserve's troubled past.  A recent decision from the NPS to forego an Environmental Impact Statement in favor of an Environmental Assessment (or more simply, to forego more rigorous environmental impacts review) will allow Collier Resources (owner of oil and gas rights in the preserve) to study the preserve area to determine if oil and gas development is feasible.  The decision is reigniting concerns over many dormant ambiguities in the preserve's enabling legislation and management history.   Consider just a few of these ambiguities:

• the Big Cypress National Preserve is part of the National Park System and thus its ecological integrity must be maintained, but its enabling legislation provides for some oil and gas development;
• NPS management of the preserve has, at times, appeared to promote the principle of "multiple use" of public lands (allowing for extensive Off-Road Vehicle use for example), even though the principle does not apply to NPS lands;
• when the federal government acquired the lands that now make up the preserve, subsurface mineral values may have been taken into account when Collier Resources was paid for surface lands; 
• Assuming Collier's mineral rights are secure, it is unclear if meaningful energy deposits are located in the preserve, making it difficult to valuate Collier's property interests in advance of a potential buy-out;
• there are several endangered species living in the preserve - such as the Florida panther - but critical habitat has never been designated
• federally recognized tribes retain certain use rights in the natural resources of the preserve
• as a vast wilderness expanse, the preserve is an obvious candidate for designation as a federally protected wilderness area, but park officials disagree on which lands should be designated as wilderness and which lands should not;

If the seismic testing and exploration moves forward as anticipated, at least one of these issues will be cleared up, as Collier and the NPS will have a better sense of how much oil and gas is located in the preserve.  Historically Florida has not been an oil-rich state, so there's a good chance the exploration phase comes up empty.  If that's the case, a buy-out of the mineral rights would be more feasible.  If, on the other hand, Collier finds extraction worthwhile, the company will still face a difficult road.  Collier will have to submit an oil and gas development plan to the NPS for approval.  At that point, a full-blown Environmental Impact Statement is likely, and the fragility of the preserve's ecological resources might limit the extent of development.  The low cost of oil might make such a complex extraction scheme financially impracticable even if the plan is approved and survives third-party litigation.  In any case, potential oil and gas development in a national preserve (and potential wilderness area) is something to keep an eye on.  If nothing else, it makes for a great case study for students of natural resources law.

The Florida Record examines my commentary on the Flint water crisis

The Faka Union Canal in Florida drains water from the Big Cypress Swamp.  Photo by JaxStrong.

It's always nice when media outlets find, appreciate, and profile your research.  In the wake of the Flint water crisis I wrote about the ways in which the crisis was being used as a proxy for the age-old water privatization vs. human right to water debate.  Journalist Mark Powell of the Florida Record digs into that research in his latest piece, "Infrastructure Lacking in Wake of Flint Water Crisis, says Florida Law Professor."  Article copied below:

With the recent water crisis in Flint, Michigan, an environmental law professor at Florida International University (FIU) took the opportunity to publish a paper on the ethics, law and regulations of our greatest resource.

Ryan Stoa, a law professor at FIU who teaches water resources law, is also the co-director of the International Water Group of the Institute for Water and the Environment. In late February, he published a piece inJurist, which provides academic commentary on prevalent legal issues by law professors and academic experts. In his piece, he highlights both sides of an argument spurred by the Flint water crisis.

The mismanagement of the water supply in Flint had many calling for local government resignations and a law requiring water to be declared a human right. Digging a bit deeper, the debacle has re-invigorated the classic public versus private water supply debate.

Those in favor of water as a government-controlled resource believe it will do away with the corruption of private companies that they believe doomed Flint. In contrast, those in favor of privatization often point to the lack of proper funding in government-controlled programs, and believe Flint’s situation could have been prevented with more oversight.

“I think it is inaccurate to suggest that only one approach can work, when there are many examples of successful public water service providers and private water service providers,” Stoa told the Florida Record. “Along these lines, there are misleading assumptions on both sides.”

Stoa believes that the issue is more complicated than the amount of government involvement, stating that the public and private sectors can–and often do–collaborate to provide the resource.

“Investments in the water sector aren't always invested wisely,” Stoa said. “If funds are available to bolster existing expenditures that usually helps, but re-thinking existing policies may provide some opportunities to improve water systems as well.”

An example of this is the state of Florida, which has a complicated water law system. While Florida does not necessarily privatize its water distribution system, it does give a surprising amount of control to districts, whose parameters are drawn out along hydrologic boundaries.

These districts are often exempt from local or state government overreach unless absolutely necessary. While they are often effective when solving issues within their own districts, they struggle when dealing with problems that occur outside their boundaries.

Despite Florida’s model, it’s easy to see how this model could fail and prove just as ineffective as other systems across the United States. As Stoa points out in his article, the American Society of Civil Engineers gives the country's water infrastructure a D+ rating, yet Congress continues to defund water maintenance.

“Much of our water infrastructure was built to tame and control the natural environment; some of that infrastructure has been effective,” Stoa said. “But re-thinking existing policies may provide some opportunities to improve water systems.”

Coral Gables' aggressive sea level rise agenda

While climate change and sea level rise are a decidedly political and partisan issue on the national level, here in Florida I have only encountered local governments that are trying to be as proactive as possible.  So far I have worked with Miami Beach, Miami, Hialeah, and Coral Gables city officials (for the most part I have no idea what their political affiliations are), and they are all keenly aware of the threats sea level rise present to South Florida communities.  Last week Politico published just the latest story on sea level rise in Miami Beach (read it here).  And several Florida mayors, many of whom have endorsed Republican presidential candidates, sent a letter to those candidates urging them to acknowledge climate change, sea level rise, and the actions needed to address our vulnerabilities.  Their plea became a point of contention in the most recent Republican presidential debate.

Coral Gables has been aggressively addressing sea level rise, with mitigation policies that incentivize energy efficiency and education programs that raise awareness of infrastructural threats.  They are hosting an ongoing speaker series on sea level rise, and it was a pleasure for me to participate last week.  The full video of my talk can be viewed here:

The Politics of Solar Energy in Florida

Rooftop solar in San Marco Island, Florida.  Image: Tai Viinikka

The Sunshine State, perhaps unsurprisingly, ranks third in the nation in rooftop solar potential.  It ranks first among states east of the Mississippi.  And yet Florida ranks a middling 14th in the nation in solar capacity installed.  What gives?  For one thing, Florida doesn't have a renewable energy standard (RES).  RESs require utility companies to source a certain percentage of their energy portfolio from renewable sources.  More than half of states have an RES of some kind.  

Also problematic are legislative barriers to rooftop solar installation.  If you're a Florida homeowner, you are free to purchase and install solar panels on your property.  But Florida doesn't allow third parties to provide those panels for you.  Landlords, for example, can't install panels for their tenants, and third party solar providers can't absorb the up-front cost of installation in exchange for monthly payments (often less than utility bills) from a homeowner.  The only entity that can sell power in Florida is a regulated utility company.  As this map shows, that makes Florida unique, one of only four states (Georgia recently authorized third-party solar) that prohibit third party solar:

Image: DSIRE

The anti-solar climate in Florida is fostering opposition from the usual suspects, including the Southern Alliance for Clean Energy.  It's also creating a partnership between environmentalists and the Tea Party:

Debbie Dooley agrees that change is inevitable and may be coming sooner than many have expected. She is the president of the Green Tea Coalition and Conservatives for Energy Freedom, part of a growing movement among political conservatives who are advocating for solar across the country.

Bills have been awaiting passage "for years," she said, "and they have all stalled in committee. Now we are taking the message straight to the people, giving Floridians the right to decide for themselves."

Other conservatives are likewise frustrated by the rigidity of the state's solar rules:

"It is very frustrating to see how special interests affect politics," he said. "I'm a Republican solar contractor and I'm frustrated with my party in this state for taking donations that do not allow for competition and free market."

The groups are pushing for a constitutional amendment to be placed on the ballot in 2016, which would remove barriers to third party solar installation.  In response, utility companies have started their own solar campaign:

Opponents have started a committee and constitutional amendment of their own: Consumers for Smart Solar, which aims to protect the existing rules around solar power. The Florida Chamber of Commerce — whose board of directors includes executives from five power companies — is a supporter.

Utilities are right to point out that regulation is needed in the energy sector to ensure that energy provision and consumption is safe and reliable.  But there's likely a less extreme option available to the legislature than a blanket prohibition on third party solar.  We'll find out in November 2016 if Florida voters agree.

Follow the Money: Florida's Land Acquisition Trust Fund

WACISSA RIVER, FLORIDA.  PHOTO: FWC

Constitutional Amendment 1 wasn't controversial when it was on Florida's ballot last November.  Dubbed the Florida Land and Water Conservation Initiative, the amendment passed easily.  Controversy has flared up since then, as interpretations of the amendment vary.  Some say the money raised by the amendment - put into the Land Acquisition Trust Fund - can only be used to acquire conservation land.  Others (including legislative budget proposals) claim the funds can be used to cover existing expenses related to land and water management.  I wrote about this back in May, arguing that the language of the amendment probably leaves room for the Fund to cover existing operations, despite the name of the Fund itself.  I also wrote that acquiring land might not be the only mechanism to achieve sound conservation: 

Amendment supporters might consider focusing the debate on outcomes, not inputs.  Land acquisition might not by itself promote conservation, just as operational spending is not per se  unproductive.  An effective conservation framework in Florida requires lands that are thoughtfully managed to advance conservation goals.  So instead of bemoaning operational expenditures, it might behoove amendment supporters to ask for more detail instead:  Will staff salary allocations make new hires in areas where expertise is lacking or merely cover the existing bureaucracy?  What kind of "technology and information services" will be provided to the Department of Environmental Protection?  Will firefighting equipment purchased by the fund prioritize the protection of conservation areas?  Given that sea level rise presents a monumental challenge to coastal communities, will the fund be used to finance climate change adaptation measures Florida's cities are begging for from the state?

The Vero Communique picked up on my piece, and it looks like they've been doing just that by trying to track down the whereabouts and details of two major state-funded projects.  One of them was an allocation from the Land Acquisition Trust Fund to the St. John's River Water Management District:

Another project we researched is one of the [] projects where $ 2,750,000 was allocated to the St. John’s River Water Management District (SJRWMD).  SJRWMD was kind enough to respond to our inquiry about this project, as follows: “The $2,750,000 referenced in Rep. Mayfield’s column is a state appropriation from the Land Acquisitions Trust Fund. The District has not yet determined how this money will be used, but will be making that decision in the near future.”

This is the first instance I've encountered where a water management district has been given an allotment from the Fund with discretion on how to spend it.  It might imply that legislators are willing to place the burden of interpretation on implementing agencies by giving them both funds and the discretion to spend those funds in compliance with the amendment's terms.  It will be interesting to see how the SJRWMD decides to spend the appropriation in light of that power.

Introducing "Cooperative Federalism in Biscayne National Park"

Stiltsville homes in Biscayne National Park.  Photo: Ryan Stoa.

For the past few months I've been working on an article about Biscayne National Park.  More specifically, I've been looking at the unique relationship between the state and federal government when it comes to fishery management.  With the National Park Service releasing its Final General Management Plan for the park last month, I'll be excited to post my draft on SSRN sometime next week.  In the meantime, here is an early draft of the introduction: 

The National Parks of the United States are nothing if not unique.  Active volcanoes, the world’s longest cave system, geothermal geysers, the largest island of the world’s largest lake, and the tallest trees on Earth can be found in the National Park System, among other natural wonders.  Some parks receive millions of visitors and are international tourist destinations – Grand Canyon National Park receives over 4.5 million visitors each year.    Others are so remote they don’t have park facilities and receive around a thousand visitors monthly.  

Biscayne National Park is neither remote nor highly frequented.  Despite its location within Miami-Dade County (population 2.66 million), the park receives only slightly more than half a million visitors annually.  That’s less than Denali National Park in Alaska, which is serviced by a single gravel access road.  North of Biscayne National Park lies the highly developed barrier islands of Key Biscayne and Miami Beach, as well as the Port of Miami, the world’s largest cruise port.  To the south lie the Florida Keys, and to the west the city of Miami, including a solid waste landfill and nuclear power plant visible from the park.  

Nestled between these bustling coastal developments is Biscayne National Park, the largest marine national park in the United States with 95% of its 173,000 acres located underwater.  The marine nature of the park sets it apart in various ways.  Much of BNP’s waters can only be accessed with a boat; on the other hand, with a boat nearly all of BNP can be accessed.  The park has four distinct ecosystems, including mangrove shorelines, estuarine shallows, barrier islands, and coral reefs.  These ecosystems sustain more than 100 species targeted by recreational and commercial fisheries.  In fact, BNP’s lucrative marine resources are what prompted Congress to protect the area in the first place.  As a result, management of the park and its resources plays an out-sized role in the South Florida tourism and fishing industries.  It also becomes highly controversial.

Aside from its marine character, Biscayne National Park is unique in the National Park System for the way in which its implementing legislation dictates the relationship between the National Park Service and the State of Florida.  With respect to fishing, Congress decreed that “the waters within the park shall continue to be open to fishing in conformity with the laws of the State of Florida.”  In other words, the state retains jurisdiction over fishing regulation and management in the park.  For a park that is mostly underwater and whose primary natural resource is fish, this reservation is a significant concession.  The reserved power notwithstanding, Congress simultaneously authorized the Secretary of the Interior to “designate species for which, areas and times within which, and methods by which fishing is prohibited, limited, or otherwise regulated in the interest of sound conservation to achieve the purposes for which the park was established,” giving the NPS the ability to impose their own fishing regulations in the park.  But, in waters donated by the state after establishment of the park, fishing must be regulated in conformity with state law. 

While these seemingly overlapping and contradictory mandates are confusing, Florida and the NPS have agreed in principle to manage fisheries uniformly within park waters.  That is likely a wise approach, as fishing compliance and enforcement would be challenging for all stakeholders involved if a multitude of marine jurisdictions in close proximity to each other had their own regulatory requirements.  On the other hand, it forces the state and federal government into a unique partnership, with each having arguably equal bargaining power over fisheries management. 

States and the federal government have been engaging in “cooperative federalism” for decades, through state implementation of federally-funded programs or state compliance with minimum federal standards.  In the field of environmental law, cooperative federalism takes place through state-managed compliance with the Clean Air Act and Clean Water Act, or the development of Coastal Zone Management Plans.  Cooperative federalism is less common in natural resources law, which is more place dependent and therefore subject to jurisdictional and territorial divides.  It is especially rare in the National Park System, where responsible park management must include state and local stakeholder involvement, but rarely provides so much legal authority to the state.  Biscayne National Park is therefore unique for both its marine and governance characteristics.

This article explores Biscayne National Park’s federalism contours in order to assess whether its management paradigm provides a workable model for replication in waters (or lands) of the United States and around the world.  Materials supporting this research include implementing legislation, state and federal regulations, management policies, inter-agency documents and communications, and direct stakeholder interviews (including consultations with federal, state, and local officials).  Ultimately there are some clear drawbacks to the BNP cooperative federalism model: namely, that dual control over fisheries management lengthens and increases the cost of the joint policy-making process. However, the synergistic effect of joint management is that NPS planning is more integrated with local legal frameworks, is more responsive to stakeholder needs, and receives the sense of ownership from surrounding communities that is so critical to the long-term sustainability of natural resources management.  Cooperative federalism in BNP has expanded the role and influence of the park beyond its borders, producing an overall positive outcome for stakeholders and the marine environment.  The research suggests that, while BNP may be unique geographically and politically, a similar governance model could produce similar benefits for other public lands, waters, and natural resources.

Does Florida's Land Acquisition Trust Fund really require land acquisition?

Wacissa River, Florida.  Photo: FWC

Last November 75% of Florida voters supported Constitutional Amendment 1, the Florida Land and Water Conservation Initiative.  The amendment was designed to ensure that at least one-third of existing documentary excise tax revenues would be allocated to the Land Acquisition Trust Fund.  The Fund, in turn, would be used to promote conservation and natural resources, primarily through the acquisition of lands for conservation.

Before the Florida legislature abruptly adjourned last month before adopting a budget, supporters of Amendment 1 were outraged by the way in which lawmakers proposed spending Amendment 1's $750 million conservation funding.  Budgets in both the House and Senate propose spending conservation funding on existing operational costs.  The House budget proposal includes funds for staff salaries and firefighting equipment, while the Senate budget funds new patrol vehicles and fish farming regulations.  Supporters of the amendment claim those expenses aren't permitted:

"I don't think the words 'Land Acquisition Trust Fund' could be any more clear," said Will Abberger, chairman of Florida's Water and Land Legacy, the committee that sponsored the amendment. "It's not the 'land management trust fund.' It's not the 'existing agencies operations trust fund.' It's the Land Acquisition Trust Fund."

The sponsor committee claims that out of the $750 million available, only $8-10 million is reserved for the acquisition of land for parks and wildlife areas.  The Speaker of the House believes that is enough to satisfy Amendment 1's objectives:

"We should make sure we can maintain the 5.3 million acres of conservation lands we already own. We believe land should be purchased for strategic reasons, such as wildlife corridors and connecting existing state lands."

Unfortunately for the sponsoring committee, there is some ambiguity in the actual language of the amendment.  It sets aside funding "to finance or refinance" several broad categories of conservation work, including the acquisition and improvement of land; wildlife management areas; lands that protect water resources and drinking water sources; lands in the Everglades Agricultural Area and the Everglades Protection Area; beaches and shores; outdoor recreation lands, including recreational trails, parks, and urban open space; and rural landscapes, working farms, and ranches.

The broad nature of the amendment leaves ample room to interpret existing operational costs as viable uses of the Land Acquisition Trust Fund.  That operational spending would seem to violate the spirit of the amendment may have little bearing: even the ballot summary statement was clear that "management" of conservation lands would be fair game.

While lobbying continues before a special session is convened in June to finalize the budget, amendment supporters might consider focusing the debate on outcomes, not inputs.  Land acquisition might not by itself promote conservation, just as operational spending is not per se  unproductive.  An effective conservation framework in Florida requires lands that are thoughtfully managed to advance conservation goals.  So instead of bemoaning operational expenditures, it might behoove amendment supporters to ask for more detail instead:  

• Will staff salary allocations make new hires in areas where expertise is lacking or merely cover the existing bureaucracy?  
• What kind of "technology and information services" will be provided to the Department of Environmental Protection?  
• Will firefighting equipment purchased by the fund prioritize the protection of conservation areas?  
• Given that sea level rise presents a monumental challenge to coastal communities, will the fund be used to finance climate change adaptation measures Florida's cities are begging for from the state?

If lawmakers can't be forthcoming about proposed allocations, then amendment supporters are right to be skeptical.  Conservation isn't all about acquiring land, but if funds are being channeled toward operations and management instead, it's fair to ask how improved institutional capacities will produce the conservation outcomes that are at the heart of Amendment 1.  

Lake Runnymede Conservation Area.  Photo: Andrew T. Sullivan