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Author Topic: Research questions / assignments from the topic wording meetings  (Read 5506 times)
stables
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« on: June 02, 2012, 07:29:00 AM »

This thread is an open thread about questions that are generated during the course of the meetings. We will post specific questions that need additional research in order to assess their utility.

1. Does the inclusion of "establish or enact an energy policy" lock in a specified USFG mechanism?

In other words, does this type of wording specify that the aff would have to be legislative or executive?
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Gordon Stables
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whwatson
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« Reply #1 on: June 02, 2012, 07:44:13 AM »

enact very well might - Europe topic proves.

establish probably doesn't; evidence for establish means legislation doesn't really exist (having researched this extensively on the 04-05 energy topic).
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kelly young
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« Reply #2 on: June 02, 2012, 09:55:50 AM »

RE: "ENERGY POLICY = LEGISLATION?"

I did a little research this morning after the question "does energy policy only = legislation?" was raised and what I found that was useful is below. Caveat: I didn't spend a ton of time on this, so this is simply offered as assistance to whomever is assigned this tonight to work on.

The best courts discussion I could find in relation to energy policy focused on the court's role to maintain state/federal implementation balance and the broader federalism debate. The literature doesn't discuss court establishment of policy. Additionally, see the 1990 Tomain article cited below for some history on this, but most significant court action on energy policy has surrounded Federal Energy Regulatory Commission regulations and its ability to place mandates on the energy industry. Even when the court has ruled against FERC, FERC had to follow up with additional policy to enact the court's decision. So, it seems like the court does little empirically to initiate energy policy.

If I remember correctly, the best Courts CPs on the previous college energy topic removed restrictions placed by either the court or federal agencies. So, if the topic includes just remove restrictions, then the courts CP is likely locked in either way. In my opinion, even if the topic includes provide incentives, the negative can contrive some way that the court could rule to require incentives (thus shielding congress/administration from blame). I don't think the lit supports this. The best card will simply say that the court has acted on energy regulation, but the broader context is that the court has acted to provide regulatory relief or to maintain federalism balance; it doesn't initiate policy.

Most of the lit discusses federal energy policy as initiated by the president and largely enacted by congress and executive agencies. The cards below support this, with whatever random Ex Orders, Courts and other agent related cards I could find.

I'm not sure how many affirmatives can be run using the court as an agent (if I recall correctly, a few nuke energy affs on the 2005 topic used the courts), but it seems like the question on the floor should be: do we want the aff to be able to access the courts as an affirmative agent? If the answer is "yes", then you should exclude "energy policy" and "enact". If not, I'm not terribly impressed with the solvency evidence for the courts CP to worry about locking in this CP in the resolution.

The broader concern might be that "energy policy" can only be done by the DOE, which was mentioned in previous debate, but I include one card below to answer this and 40 years of US policy making suggests that energy policy is a legislative and executive agency process, driven by presidential directive.

-Kelly

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EPACT 2005 IS OUR CURRENT FEDERAL ENERGY POLICY. IT INCLUDES A RANGE OF ENERGY SOURCES (AND VEHICLE EFFICIENCY)

Kristin Bluvas 2007, COMMENT: DISTRIBUTED GENERATION: A STEP FORWARD IN UNITED STATES ENERGY POLICY, Albany Law Review, pp. LN
III. Energy Policy Act of 2005: The Federal Energy Policy
The modern federal energy policy is encompassed in the Energy Policy Act of 2005 (EPACT 2005), and was signed into law on August 8, 2005. n43 EPACT 2005 addresses a wide range of energy issues including efficiency, renewable resources, oil, gas, coal, nuclear, vehicle efficiency, and hydrogen, to name only a few. n44 This piece of legislation focuses on production capacity with little consideration of conservation and environmental concerns. n45 EPACT 2005 also sets mandatory electricity reliability rules and repeals the Public Utility Holding Company Act (PUHCA), eliminating the oversight power from the Securities and Exchange Commission (SEC) and transferring it to the FERC. n46 In the areas  [*1596]  of renewable energy and distributed generation, however, a comprehensive and well defined commitment is surprisingly absent from the Act.

ENERGY POLICY IS VERY BROAD - CAN INCLUDE STATE/FED TAXES, FOREIGN POLICY, MONETARY POLICY, AND ENVIRON STATUTES & REGS
JUSTICE RICK STRANGE, Fall 2009, ARTICLE: WEAVING A TANGLED WEB: THE INTERSECTION OF ENERGY POLICY AND BROADER GOVERNMENTAL POLICIES, Texas Journal of Oil, Gas, and Energy Law, pp. LN
 
Despite the critical importance of energy access, there is no official U.S. Energy Policy, but it would be a mistake to suggest that we do not have one, in the same sense that to decide not to decide is to decide. Because energy is a basic component of life, anything that impacts the price we pay for energy, anything that alters the way that energy is manufactured, or anything that influences our patterns or methods of energy consumption, is a part of our energy policy. Such impacts can be found in state and federal taxes, foreign policy, monetary policy, and environmental protection statutes and regulations. Because these policies shape our energy policy, it is appropriate to consider the relationship between energy policy and other broader governmental policies.

THERE ARE SEVERAL PERSPECTIVE ON WHO DRIVES ENERGY POLICY. TECHNICALLY, PRESIDENT MUST SUBMIT ONE EVERY TWO YEARS TO CONGRESS, BUT THE POLICY MAKING PROCESS IS VERY BROAD
Joseph Tomain, 1990,  “THE DOMINANT MODEL OF UNITED STATES ENERGY POLICY,” U. Colo. L. Rev., http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1134&context=fac_pubs

Conventional wisdom has it that the United States has no coherent and comprehensive national energy policy. This notion persists despite the fact that Congress requires the President to submit to it, biannually, a national energy plan.2 Like all catechisms, this belief is partially true and partially false, depending upon one's perspective. The better statement about U.S. energy policy is that it is kaleidoscopic. If one concentrates on one portion of a kaleidoscope, shapes, colors and images appear chaotic. So, too, does energy policy if one examines only one segment of the policymaking process, as does an analyst who concentrates on Congressional action, for example. 3 However, as one pulls back and looks at the full kaleidoscopic screen, patterns emerge. The theme of this article is that, at a certain level of generality, the United States has developed over the .last one hundred years an identifiable pattern of energy decisionmaking and energy policy. This pattern forms what can be properly termed the "Dominant Model of United States Energy Policy.4

THERE IS SOME COURT INTERACTION - BROAD POLICY INTERVENTION IS DONE BY EXECUTIVE AND CONGRESS. DAY TO DAY REGULATION OCCURS BY COURTS AND EXECUTIVE AGENCIES
Joseph Tomain, 1990,  “THE DOMINANT MODEL OF UNITED STATES ENERGY POLICY,” U. Colo. L. Rev., http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1134&context=fac_pubs

Since the beginning of the 1980s, energy markets have moved toward equilibrium, thus reducing the need for radical Executive and Congressional intervention. Instead, day-to-day regulation takes place away from the more political branches and is accomplished through administrative agencies and the court system. Contemporary federal regulation of the natural gas and electric industries is occurring most noticeably at the Federal Energy Regulatory Commission (FERC), the primary innovator in the developing area of government markets.

TRADITIONALLY, FEDERAL ENERGY POLICY IS ESTABLISHED THROUGH A SERIES OF ENERGY LEGISLATION. THE COURT'S INVOLVEMENT TENDS TO BE OVER IMPLEMENTATION'S IMPLICATIONS ON FEDERALISM, NOT ENACTMENT OF LAW
Pamela Stephens, 1982, ARTICLE AND COMMENT: IMPLEMENTING FEDERAL ENERGY POLICY AT THE STATE AND LOCAL LEVELS: "EVERY POWER REQUISITE"+, BC Environmental Affairs LR, pp. LN

During the last decade Congress has taken steps toward the formulation of a comprehensive federal energy program by enacting several important pieces of energy legislation. That legislation emphasizes an implementation scheme which relies heavily upon the cooperation of state governments and their political subdivisions. The willingness of the state and local governments to engage in any concerted action to further national energy policy is by no means certain and the effectiveness of the federal program may, therefore, depend upon the extent to which states may be compelled to participate. While the commerce power of Congress might once have seemed broad enough to encompass virtually any mandate to implement federal legislation, recent decisions of the Supreme Court have found certain limits on that power. The Supreme Court has held that congressional commerce clause powers may be subject to external constraints imposed by the nature of our federal system of state-federal relations and the reserved powers of the states under the Tenth Amendment of the Constitution. n1 Those Supreme Court decisions  [*876]  have at least called into question the federal government's power to require state implementation of its programs. This article will undertake an analysis of traditional and current views of federalism with a view toward identifying the limits on the federal government's power to compel, directly or indirectly, state implementation of federal energy programs. The constitutional limits on the federal government's implementation of its policies will then be considered in the context of existing energy legislation. This examination will determine first, whether energy legislation is subject to such limits; and, second, if so, which forms of implementation meet the constitutional objections and thus, may be used to effect federal energy policy at the state level.

TRADITIONALLY, FEDERAL ENERGY POLICY IS ENACTED THROUGH LEGISLATION - EPACT 1977, 1992 AND 2005 PROVE
Jim Rossi, 1995, ARTICLE: LESSONS FROM THE PROCEDURAL POLITICS OF THE "COMPREHENSIVE" NATIONAL ENERGY POLICY ACT OF 1992, Harvard Environ LR, Winter, pp. LN

By the time Bush's plan was simultaneously introduced as bills to both houses of Congress on March 6, other proposals in the Senate and the House of Representatives had already stolen the show. These legislative proposals comprised the most serious and comprehensive attempts at rethinking U.S. energy policy since Carter's National Energy Plan had come before Congress in 1977. Senator Bennett Johnston, the Louisiana Democrat who chaired the Senate Energy and Natural Resources Committee, had proposed his own comprehensive energy bill on February 5. His bill, S.341, was characterized as a proposal "to reduce the Nation's dependence on imported oil, [and] to provide for the energy security of the Nation." n6 Representative Philip R. Sharp, an Indiana Democrat who chaired the House Energy and Commerce Committee's Subcommittee on Energy and Power, simultaneously introduced a package of five energy bills: H.R. 776, H.R. 777, H.R. 778, H.R. 779, and H.R. 780. n7 Following nearly eighteen months of consideration, Congress passed the Comprehensive National Energy Policy Act of 1992 ("EPAct"), n8 based primarily on Sharp's House package. Although the EPAct was one ofthe most significant bills to come out of the 102d Congress, the EPAct is hardly "comprehensive." Congress took up the bill in an atmosphere of crisis, trading systematic and methodical deliberation for expediency. The core majority strongly supported the legislation, allowing special interests to influence its content without diluting its base of support. The result was the  [*197]  omission of many important energy and environmental issues from the finished product. This Article examines the political and procedural history of the EPAct in order to arrive at some general lessons and recommendations regarding congressional formation of energy policy. n9 At least two commentators on the EPAct praise it as the "second generation" of federal energy policy, based in laws that achieve "their mandates more by consensus than coercion." n10 The EPAct's history, however, was far from smooth. Procedural obstacles, such as filibuster, inter-committee conflict, and inter-chamber conflict, led many to declare the EPAct dead on several occasions prior to its passage. n11

EMPIRICALLY, FEDERAL ENERGY POLICY IS CONGRESSIONAL ACTION
Jim Rossi, 1995, ARTICLE: LESSONS FROM THE PROCEDURAL POLITICS OF THE "COMPREHENSIVE" NATIONAL ENERGY POLICY ACT OF 1992, Harvard Environ LR, Winter, pp. LN

n1 The Federal government first recognized the need for a national energy policy in the 1930s under the reformist administration of Franklin D. Roosevelt. See ELLIS W. HAWLEY, THE NEW DEAL AND THE PROBLEM OF MONOPOLY: A STUDY IN ECONOMIC AMBIVALENCE 325-43 (1966). National energy policy has been reviewed several times since then. In 1971 the Senate Energy and Natural Resources Committee, under the leadership of Senators Henry Jackson (D-Wash.) and Jennings Randolph (D-W. Va.) commenced the Senate's National Fuels and Energy Policy Study to address the creation of an integrated energy policy. The executive branch responded in 1974 with its own recommendations in "Project Independence," largely followed by Presidents Nixon and Ford. Carter's 1977 National Energy Plan placed a new emphasis on energy conservation and the substitution of indigenous coal for oil and natural gas. National energy policy initially met a major setback with President Reagan, who, over the strong objections of Congress, proposed abolishing the Department of Energy. Following the Senate's quick rejection of Reagan's proposal, the administration sought to decontrol oil prices, leading to decreases in energy prices over the 1980s and, concomitantly, little attention to energy issues. For a criticism of administration-led energy strategies, see Chandler L. Van Orman, The National Energy Strategy -- An Illusive Quest for Energy Security, 13 ENERGY L.J. 251 (1992).

HISTORICALLY, ENERGY POLICY INCLUDES EXECUTIVE ORDERS

Gary C. Bryner 2002, ARTICLE: THE NATIONAL ENERGY POLICY: ASSESSING ENERGY POLICY CHOICES, Univ of Colorado LR, Spring, pp. LN
The Bush energy policy also recommends that the president issue an executive order requiring all federal agencies to include a statement in any regulatory action they take that might "significantly and adversely affect energy supplies, distribution, or use." n33 That statement should include information on "(1) the energy impact of the proposed action, (2) any adverse energy effects that cannot be avoided should the proposal be implemented, and (3) alternatives to the proposed action." n34 Agencies will be required to include this statement in submissions made to the Office of Management and Budget under Executive Order 12,866, a 1993 order from President Clinton that required agencies to identify the costs and benefits of major regulations they propose and with proposed actions announced in the Federal Register. n35 President Bush issued that executive order on May 18, 2001. n36 Another executive order he issued requires agencies to expedite permits and coordinate federal, state, and local actions necessary for energy-related project approvals on a national basis in an environmentally sound manner. n37

EVEN MUCH OF EXECUTIVE ACTION REQUIRES LEGISLATION IN ENERGY POLICY

Gary C. Bryner 2002, ARTICLE: THE NATIONAL ENERGY POLICY: ASSESSING ENERGY POLICY CHOICES, Univ of Colorado LR, Spring, pp. LN
Many of the recommendations in the Bush energy plan had already been proposed in bills introduced by members of Congress. A flurry of energy related bills were introduced early in the 107th Congress, in response to the problems in meeting demand in California, as well as in anticipation of the Bush administration's effort to develop a national energy policy. Republican and Democratic leaders both introduced omnibus bills; a number of bills addressing specific issues were also proposed. The energy plan's recommendations thus compete with  [*352]  a host of congressional initiatives. While much of the energy plan can be pursued unilaterally by the executive branch, many of the most controversial proposals, even if pursued by federal agencies, will require congressional action. Throughout 2001, the Bush administration was unable to get Congress to enact key provisions of the plan.

NATIONAL ENERGY POLICY REQUIRES CONGRESSIONAL ENACTMENT AND FEDERAL AGENCY IMPLEMENTATION

Gary C. Bryner 2002, ARTICLE: THE NATIONAL ENERGY POLICY: ASSESSING ENERGY POLICY CHOICES, Univ of Colorado LR, Spring, pp. LN
The Bush administration's National Energy Policy is a menu of recommendations. Many are calls for more studies, research, and planning activities. Some of the recommendations are largely hortatory, while others propose specific actions to be taken. The list of recommendations is much longer than the administration is likely to be able to undertake during the next few years without strong congressional support. The same is true of the bills introduced in the 107th Congress. It is difficult to predict what recommendations Congress will eventually enact, and the Interior, Energy, and other departments will implement. The policy process will be shaped by temperatures and demand for gasoline, global events affecting the stability of global oil markets, the nation's war against terrorism and its impact on the United States' relations with oil exporting nations, long-term issues such as the evolution of the threat of climate change and other environmental concerns, and other factors difficult to predict. Exploring how well the problem of energy is defined provides a useful starting point, since that is a critical step in the development of effective policies. A key issue is the interaction of the current sources of energy (primarily fossil fuels), with options for conservation, improved efficiency, and development of alternative energy sources that are central to the shift towards a more ecologically sustainable economy.

FYI - NATIONAL ENERGY POLICY IS *NOT* JUST DOE ACTION - IT CANNOT CREATE OR IMPLEMENT
Joseph Tomain, 1990,  “THE DOMINANT MODEL OF UNITED STATES ENERGY POLICY,” U. Colo. L. Rev., http://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1134&context=fac_pubs

There were four significant energy events during the Carter Administration. First, Carter centralized energy administration in the
cabinet level Department of Energy (DOE). The DOE was unable, however, to design a comprehensive national energy plan because energy
decisionmaking and policy making responsibilities were scattered over several branches of the federal government, and even within the DOE itself authority was fragmented.
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kelly.young [at] wayne.edu
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