Author: JOLT Page 36 of 50

  By: Ashley Davoli

Energy law is a hot topic these days. With the constant hubbub regarding global warming, gas prices, and solar power, these buzzwords that were originally heard only in small circles have gained notice and popularity. Another term we might be adding to our collective vocabularies in the near future? Demand response.

Demand response is an “opportunity for consumers to play a significant role in the operation of the electric grid by reducing or shifting their electricity usage during peak periods in response to time-based rates or other forms of financial incentives.”[1] There are various ways for consumers to engage in demand response, including varying prices based on the time of day or market variables.[2] There are also options that allow users to have the power company control their appliances during certain periods, turning them on and off as the overall power grid needs in order to avoid spikes in energy demand and high prices.[3] These consumers are compensated by financial incentives and overall lower energy costs for their homes or businesses.[4]

While this is beneficial to both the consumers and the environment, the question remains as to who controls and regulates the demand response field. In Section 201 of the Federal Power Act (FPA), Congress gave the Federal Energy Regulatory Commission (FERC) the power to regulate interstate transmission of wholesale electricity sales.[5] States retain the ability to regulate any sales that include retail sales and directly involve the end-user consumers.[6] FERC claims to have jurisdiction over the regulation of demand response under Section 206 of the FPA, which states when FERC finds “any rule, regulation, practice . . . affecting such [interstate wholesale] rate . . . is unjust, unreasonable, unduly discriminatory or preferential, [FERC] shall determine the just and reasonable . . . rule, regulation, practice . . . .”[7] FERC says demand response programs affect interstate wholesale energy prices, and therefore FERC has jurisdiction over setting the regulations and practices surrounding demand response programs. Some state regulators and demand response providers say that the energy sales occur at a retail level, not the wholesale level, and therefore FERC does not have jurisdiction according to the FPA.

This is a complex issue of preemption and statutory interpretation. So complex, in fact, that a petition for certiorari is pending for the Supreme Court to hear whether or not FERC can regulate demand response programs.[8] If certiorari is granted, this will not be the first energy related case the Supreme Court decides in recent days.

On April 21, 2015, in Oneok, Inc. v. Learjet, Inc., the Court decided federal natural gas laws do not preempt state laws regarding sales at any the beginning of the chain of natural gas movement, from wellhead to pipeline.[9] This decision helps those in favor of state regulation of demand response, but at the same time, there is almost no state regulation to be had. The programs are incredibly new and challenging to figure out. If the Court follows its decision in Learjet, it would seem that it would favor state regulation, as demand response, although technically connected to the interstate power system, most directly includes retail consumers, not wholesale buyers. In the decision being appealed, the D.C. Circuit found that demand response affects wholesale rates, but the actual demand response activity is done at the state and consumer level – so FERC does not have jurisdiction.[10] FERC disagrees, and is now petitioning for certiorari to gain jurisdiction.[11]

This is an important decision, as the Court would have to balance states’ rights with the importance of federally regulating a practice that is so new, but so important. This decision will impact how the nation handles this new energy technology, and it will be landmark in energy efficiency in years to come.

[1] U.S. Dep’t of Energy, Demand Response, ENERGY.GOV, http://energy.gov/oe/technology-development/smart-grid/demand-response (last visited Apr. 22, 2015).

[2] See id.

[3] See id.

[4] See id.

[5] See Federal Power Act, 16 U.S.C. § 824(b)(1) (2012).

[6] See id.

[7] 16 U.S.C. § 824e(a) (2012).

[8] See Jeff St. John, The Future of Demand Response: How a Legal Challenge Could Dramatically Change the Industry, greentechgrid, http://www.greentechmedia.com/articles/featured/ferc-order-745-the-supreme-court-and-the-future-of-demand-response (last visited Apr. 22, 2015).

[9] See generally Oneok, Inc. v. Learjet, Inc., 575 U.S. ____ (2015) (holding that Section Five of the Natural Gas Act did not preempt state law).

[10] See generally Electric Power Supply Ass’n v. FERC, 753 F.3d 216 (2014) (holding Section 201 of the Federal Power act prohibits FERC from intruding on state jurisdiction regarding demand response).

[11] See St. John, supra note 8.

By:Walton Milam

Richmond Law School boasts a progressive and largely successful history of implementing technological innovation into the law school curriculum. Richmond Law was the first law school to require all students to have their own laptop and the first law school to host an exclusively online law review. Law schools have long received criticism for not adequately preparing students to practice law upon graduation. Though law schools generally provide students with the intellectual tools to identify, analyze, and argue legal issues, some young lawyers in particular lament their lack of preparation for the nuts and bolts of practice.   Law schools have a strong counter, however, in that law school graduates enter a diverse number of legal and non-legal jobs. Teaching students to how to lead profitable careers applying their law school skillset in diverse careers is assuredly not a one-size-fits-all formula. Firms and other employers maintain a better position and incentive to teach such specialized and career specific skills to young employees. Still, many schools including the University of Richmond have successful clinical programs that allow students to gain practical students. Further, many students gain valuable experience and insight through summer experiences.

Though students graduating law school today face an improving market that continues to rebound from the period of prolonged law school graduate unhappiness afflicting graduates from around 2008 to 2013, the job market remains cutthroat and law students must fight for any advantage to compete for desirable employment. Though fresh law school graduates necessarily lack the experience and savvy of older lawyers, younger law students likely command a far better grasp of technological innovation and tools than their older colleagues. Proficiency with iPhones, word processors, e-mail, electronic calendars, online legal research tools, and technology generally gives young lawyers a comparative advantage that might partially make up for deficiencies in experience. Such technological advantages for example allow for better communication with clients, increased efficiency with legal research, and mitigation of time and money costs generally. While many young graduates will maintain advantages in technological ability merely by virtue of their date of birth, law schools might serve their students well by implementing technological education into the curriculum. A number of new tools that allows lawyers to have legal tools at their finger tips at all times. Ever-evolving document search document databases for example can give older lawyers fits but likely provides young lawyers an opportunity to more effectively tackle assignments. University of Richmond for example has a weekend dedicated to trial practice and requires a number of law skills classes. Perhaps a similar weekend of law skills class dedicated electronic legal skills is worth considering.

By Peyton Stroud, Associate Notes and Comments Editor

Just when you thought your Fitbit was logging your amounts of steps, now it’s logging some hours in the courtroom. Simon Mueller, a lawyer in Canada, is attempting for the first time to introduce data information stored on a wearable device as evidence in a personal injury case.[1] In that case, a woman was in an accident and claims that the accident resulted in a loss of activity.[2] Mueller hopes to use the data from her Fitbit to support his client’s assertion of decreased activity levels.[3] However, due to reliability issues, many experts are wary of the value it brings to the courtroom.[4]

Many lawyers and experts have concerns over the reliability of the data from the wearable technology.[5] For example, some wearable devices log activity just by a wave of the hand, while others may not.[6] Additionally, there is no standardization in terms of activity data.[7] According to analytics expert Rick Hu, “one of the shortcomings right now is that each of the device manufacturers collects their own information . . . so it’s hard to compare that data with other people’s data who are not using that particular device.”[8] Similarly, people often don’t even charge, sync, or wear their devices.[9] Although experts in the field do not think this data will stand on its own, many think it might be helpful in corroborating testimony from an expert witness.[10] Additionally, device wearable companies are continuing to make their tracking sensors more reliable.[11]

Similarly, data from these wearable devices raises other legal implications including privacy and ownerships concerns. In terms of privacy, privacy issues can be avoided because these device companies that collect data in the wireless cloud can be subpoenaed.[12] Although this might come as a shock to users, these device companies explicitly state in its service provider agreements that data may be released for valid legal requests.[13] Another obstacle lawyers will have to overcome to introduce data in the courtroom is HIPPA regulations.[14] According to Shakoori, an e-discovery lawyer, “there are currently no HIPPA regulations connected to these devices, but as they are linked to specialized health data, it could be a slippery slope.”[15] However, an exception in HIPPA might solve this problem because it allows for release of information for law enforcement queries and other legal requests.[16]

Technology being used as evidence is not new to courts. Several years ago, the court began requisitioning Facebook for information.[17] Legal experts opine that it is just a matter of time for data from these devices to be commonplace in the courtroom becoming a “black box” for the human body.[18]

[1] Margaret Littman, Data from wearable devices is being eyed as evidence in the courtroom, ABA J. (Apr. 1, 2015), available at http://www.abajournal.com/magazine/article/data_from_wearable_devices_is_being_eyed_as_evidence_in_the_courtroom.

[2] Id.

[3] Lucas Mearian, Data from wearable devices could soon land you in jail, Computerworld (Dec. 8, 2014, 3:00AM), http://www.computerworld.com/article/2855567/data-from-wearable-devices-could-soon-land-you-in-jail.html.

[4] See id.

[5] See id.; Littman, supra note 1.

[6] See Littman, at 1.

[7] See Mearian, supra note 3.

[8] Mearian, supra note 3.

[9] Littman, supra note 1.

[10] See id.

[11] See Parmy Olson, Fitbit Data Now Being Used in the Courtroom, Forbes (Nov. 16, 2014, 4:10 PM), http://www.forbes.com/sites/parmyolson/2014/11/16/fitbit-data-court-room-personal-injury-claim/.

[12] See Mearian, supra note 3.

[13] See id.

[14] Littman, supra note 1.

[15] Id.

[16] Olson, supra note 11.

[17] See id.

[18] See id.

By Josh Lepchitz, Associate Technical & Public Relations Editor

Unmanned Aerial Vehicles (UAV), better known as drones, have made a big splash into culture recently. John Oliver tackled the issue of drones being used for aerial attacks on enemy combatants, and the makers of South Park raised questions as to to privacy issues that surround drones for personal use as well as taking on a few other issues.[1] Drones, especially for the hobbyist sector, are becoming incredibly popular and widely available. Economic forecasters predict that over the next decade the drone industry will generate over $82,000,000,000.00 and create over 100,000 well paying jobs.[2] According to Mike Blades, a senior analyst for Frost & Sullivan specializing in aerospace and defense, over $720,000,000 was spent world wide in 2014 alone.[3] The driving force behind these numbers is not the military or government market but the everyday consumers.[4] Drones available for consumer purchase range in price from under $100 to several thousands of dollars. It should be plain to see that the drones on the lower end of the price spectrum do not have the range, capabilities, or durability of the more expensive UAVs, but technology and consumer demand are growing at an extremely rapid rate. An apt analogy would be to compare this budding technology and its market to that of cellular phones. It would not be unreasonable; in the near future to see extremely technologically advanced drones for a reasonable price, no different than the cell phone you currently have in your pocket at this moment. This issues that arise with controlling advanced recording, and streaming devices are plentiful, especially privacy concerns, but a growing concern is how will this technology effect wildlife?

Drones aren’t only capable of harassing human populations but they are also capable of tracking and harassing animal populations as well, and it has not gone unnoticed. As of today Colorado, and Montana have statutes, and regulatory laws that make the act of using of drones to aid in hunting a criminal offense, and Michigan, Wyoming, and Arizona are amongst some of the other states likely to join them in the near future.[5] There is a push on a national scale, but for the majority of states no laws are on the books other than the standard FAA regulations.[6] Even the rules promulgated by the FAA are minimal at this point. Under the FAA there are two categories of drone flights, commercial and non-commercial[7]. Under the FAA commercial flights are banned but a Federal Court in Parker v. Huerta could overturn that.[8] When it comes to non-commercial flying of drones the only regulations made by the FAA are that the pilot must stay away from flight-controlled airspace such as airports, stay under 400 feet, stay within the line of sight of the operator, and stay away from crowds.[9] This leaves a lot of wiggle room for a “sportsman” to track, or flush out large game making it easier to bag his trophy. It also makes hunting much easier for poachers, unlicensed hunters, and out of season hunters. Being able to quickly find a trophy animal, get to the location of the animal, make their kill, and extract their trophy before proper authorities can prevent the illegal activity. Now it is unfair to think that all hunting enthusiast would take advantage of such a situation but it is reasonable to think that some would.

While some states have been taking the option of banning drones for the aid of hunting other countries, and even some state conservation agencies have taken a separate approach and began to utilize drones in their operations. Alaskan conservationist have been using drones to track and count endangered species such a as polar bears, as well as using the technology to keep a watchful eye on the the various species.[10] Similar programs have sprung up in African nations to protect species and prevent poaching.[11] Drones also provide a way for biologist and ecologist to observe the animals from a safer, less intrusive distance and aid in the expansion of their knowledge base.

It seems that no matter how they are being used, either for noble or illicit reasons, drones are going to be a growing part of our culture and seem to be infiltrating in so many facets of life ranging from agriculture to spectator sports. Just like cell phones, it is likely that they will become such a fixture in everyday life that a federal regulatory agency, maybe the FAA, will have to take a firm step forward and establish some governance on how drones are used. Until then it seems as if states are in control of the issue and only a select few seem to be addressing the full spectrum of issues that can arise from drones and their usage.

[1] Last Week Tonight with John Oliver (HBO television broadcast Sept. 28, 2014) available at https://www.youtube.com/watch?v=K4NRJoCNHIs, South Park: The Magic Bush (Comedy Central television broadcast Oct. 29, 2014) available at http://southpark.cc.com/full-episodes/s18e05-the-magic-bush.

[2] Clay Dillow, What is the drone industry really worth?, Fortune (March 12, 2013, 6:09 PM) http://fortune.com/2013/03/12/what-is-the-drone-industry-really-worth/.

[3] Barbara Booth, Is it time to buy your kid a drone for Christomas?, CNBC (Dec. 22, 2014, 9:27 AM), http://www.cnbc.com/id/102280825.

[4] Clay Dillow, Get ready for ‘Drone Nation’, Fortune (Oct. 8, 2014, 3:58 PM) http://fortune.com/2014/10/08/drone-nation-air-droid/.

[5] Michael R. Shea, The Drone Report: Do Unmanned Aerial Systems Hae a Place in Hunting and Fishing?, Field and Stream http://www.fieldandstream.com/articles/hunting/2014/03/drone-report-do-unmanned-aerial-systems-have-place-hunting-and-fishing, Kathleen Gray, Bills making using drones to hunt a crime, Detroit Free Press (March 25, 2014, 7:17 PM) http://www.freep.com/story/news/politics/2015/03/25/house-passes-bill-make-hunting-harrassing-hunters-drone-crime/70441434/.

[6] Id

[7] Unmanned Aircraft Systems (UAS) Operational Approval, Notice N8900.227, U.S. Department of Transportation, Federal Aviation Administration, July 30, 2013, available at http://www.faa.gov/documentLibrary/media/Notice/N_8900.227.pdf

[8] Kevin Robillard, Judge strikes down small drones ban, Politco Pro (March 6, 2014) http://www.politico.com/story/2014/03/faa-small-drones-ban-104393.html.

[9] Supra note 7.

[10] Crispin Andrews, Drone-Powered Wildlife Conservation is Taking Off in Alaska, Earth Touch News Network (June 18, 2014) http://www.earthtouchnews.com/conservation/conservation/drone-powered-wildlife-conservation-is-taking-off-in-alaska.

[11] Piyush Jain, Drones Keep Wildlife Alive with Air Shepard Program, Clapway (March 25, 2015) http://clapway.com/2015/03/25/drones-keep-wildlife-alive-123/.

http://alterthecourse.com/wp-content/uploads/2012/11/Deer-Hunting-with-Drones.png – photograph source.