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The George Washington Journal of Energy and Environmental Law The George Washington Journal of Energy and Environmental Law ® Articles Elias Kohn, Mitigating PG&E’s Wildfire Ignitions: A Framework for Environmental Resilience and Economic Stimulus Dr. Waseem Ahmad Qureshi, International Law and the Threat of Water Wars Notes Molly E. Behan, The Fade of Efficient Cap and Trade: Bankruptcy’s Undermining of the Renewable Fuel Standard and Other Cap-and-Trade Programs Michael Billotti, Risky Business: Implementing Meaningful, Quantified Climate Change Risk Disclosures Audrey Carroll, The Other Side of the (Bit)Coin: Solutions for the United States to Mitigate the Energy Consumption of Cryptocurrency Volume 12 No. 1 Emily N. Donahoe, Rising Seas and Rising Tensions: Encouraging Managed Retreat Strategies During the Calm Between Storms Jeremy A. Freiman, Not All Water Is Good for a Reactor Core: Why the Nuclear Regulatory Commission Should Embrace the Science of Climate Change in Plant Siting and Renewal Licensing Matthew Obeid, Charting a Sustainable Path Forward for California Investor-Owned Utilities Subject to Wildfire Liabilities The George Washington Journal of Energy and Environmental Law BOARD OF EDITORS VOLUME 12 Helen Mitsuko Marsh Editor-in-Chief Rebecca A. Ringler Jeremy A. Freiman Dina N. Truncali Senior Articles Editor Senior Managing Editor Senior Production Editor Molly C. Jones Michael F. Billotti Molly E. Behan Senior Projects Editor Sarah A. Husk Senior Notes Editor Danni L. Shanel Laura Martin Managing Editors Tessa Andrew EBA Brief Liaison Violet N.D. Edelman Alan Neuhauser Lesley Morton Andrew F. Costello Devin Patrick O’Connell Sean O’Neill Austin Ray Kabbaz Szabo Notes Editors Tim Scanlan Articles Editors EBA Brief Editors ASSOCIATES Alexander Beyrent Guoyao Han Matthew Obeid Audrey Carroll Hayley F. Heath Benjamin Passey Matthew Clinton Lauren E. Johnstone Wilma P. Rodriguez Emily N. Donahoe Marley R. Kimelman Katherine E. Sargent James C. Franco Ainsley K. McNerney Annemarie E. Wamsted Joseph Grossman George A. Menold Drew Weitzel Saxon F. Nelson MEMBERS Hannah Amanpour Aneta Golaszewski Brianna McGraw Anna Arena Chelsea Gutierrez Kalee Odom Sharzad Attaran Tanner Hatch Jack Petr Rurik Asher Baumrin Jacob Hochberger Grace Pezzeminti Tyler Breeden Tyrus Jackson Clara Pomper Evan Brown Stephan Jaksch Emily Schimelpfenig Rachel Christensen Jeremy Jones Robert Schutt Katharine Doerksen Joseph Kennelly Ryan Thompson Anna Ellison Laura Killalea Sally Tieu Rachel Ellison Zachary Lee Erin Wever Daniel Freitas Divina Li Nina Wu Evan Garcia Maggie MacCurdy Lucy Xiong Vikram Gill Eleanor Maloney Qinyu Xu Taylor McDougall Dean Lin Harmon-Walker, Faculty Advisor The George Washington Journal of Energy and Environmental Law VOLUME 12 CONTENTS NO. 1 ARTICLES Mitigating PG&E’s Wildfire Ignitions: A Framework for Environmental Resilience and Economic Stimulus by Elias Kohn ....................................................................... 3 International Law and the Threat of Water Wars by Dr. Waseem Ahmad Qureshi .......................................................18 NOTES The Fade of Efficient Cap and Trade: Bankruptcy’s Undermining of the Renewable Fuel Standard and Other Cap-and-Trade Programs by Molly E. Behan ..................................................................30 Risky Business: Implementing Meaningful, Quantified Climate Change Risk Disclosures by Michael Billotti ...................................................................41 The Other Side of the (Bit)Coin: Solutions for the United States to Mitigate the Energy Consumption of Cryptocurrency by Audrey Carroll. 53 Rising Seas and Rising Tensions: Encouraging Managed Retreat Strategies During the Calm Between Storms by Emily N. Donahoe ................................................................65 Not All Water Is Good for a Reactor Core: Why the Nuclear Regulatory Commission Should Embrace the Science of Climate Change in Plant Siting and Renewal Licensing by Jeremy A. Freiman ................................................................76 Up in Flames: Charting a Sustainable Path Forward for California Investor-Owned Utilities Subject to Wildfire Liabilities by Matthew Obeid. .90 Cover photo courtesy of The George Washington University Law School. Copyright © 2021 Environmental Law Institute® and The George Washington University Law School. All rights reserved. ELR®, Environmental Law Reporter®, and the Environmental Law Institute® are registered trademarks of the Environmental Law Institute. The George Washington Journal of Energy and Environmental Law is published triannually. General inquiries may be sent to The George Washington Journal of Energy and Environmental Law; 2028 G Street, NW, Suite LLC-023; Washington, DC 20052. Third-class postage paid at Washington, D.C. POSTMASTER: Send address changes to: The George Washington Journal of Energy and Environmental Law, 1730 M Street, NW, Suite 700, Washington, DC 20036. ARTICLES MITIGATING PG&E’S WILDFIRE IGNITIONS: A FRAMEWORK FOR ENVIRONMENTAL RESILIENCE AND ECONOMIC STIMULUS Elias Kohn* ABSTRACT Pacific Gas & Electric’s (“PG&E”) failure to properly manage vegetation and upgrade electrical infrastructure along transmission and distribution lines is the leading cause of PG&E’s wildfires, including the devastating 2018 Camp Fire. PG&E’s repeated failures compelled criminal charges and civil claims against the company. Criminal prosecution, however, has not deterred PG&E’s criminal conduct. Similarly, PG&E maneuvered sig- nificant civil liability through Chapter 11 bankruptcy. Given PG&E’s consistent safety violations and resultant wildfire ignitions, scholars and regulators are debating whether California should restructure PG&E. This Article explains that if regulators are unwilling to restructure PG&E, then inverse condemnation with a prudent manager standard for rate recovery is the better liability option to incentivize vegetation man- agement and infrastructure upgrades. In addition, when considering the prudent manager standard, the California Public Utility Commission should more heavily weigh PG&E’s completion of existing vegetation management objectives described in wildfire mitigation plans and court orders. Any liability scheme, how- ever, that does not rethink PG&E’s structure is likely insufficient to fix the wildfire ignition issue. This Article urges California to incrementally restructure PG&E by assuming responsibility over vegetation management and infrastructure upgrades. Through a public works model, California can create waves of employment to complete this work. This employment would promote economic recovery from COVID-19 while simultane- ously reducing wildfire risks. Moreover, this proposal enables California to upgrade, if not transform, an outdated electric grid into a more sustainable and resilient system. I. Introduction to receive electricity.2 PG&E employs around 23,000 peo- ple.3 California’s relationship with PG&E is complicated, Pacific Gas & Electric (“PG&E”) is among the largest elec- however, because while the state relies on the utility to pro- trical energy providers in the United States.1 Around 16 mil- vide jobs and electricity over a vast geographic area, PG&E lion Californians across 70,000 square miles rely on PG&E is also responsible for a legion of wildfires that have devas- tated the state. For example, in 2017, poorly managed and outdated PG&E equipment caused 17 major wildfires and * Elias Kohn has a sociology degree from the University the devastating Camp Fire in 2018.4 of Southern California, a master’s degree in Environmental Management from the Yale School of the Environment, and a J.D. from Lewis & Clark Law School. He currently works 2. Id. 3. Id. as an Assistant District Attorney for the City of Philadelphia. 4. Second Order to Show Cause Why PG&E’s Conditions of Probation Nothing in this Article reflects the views of his employer. Should Not Be Modified at 2, United States v. Pac. Gas & Elec. Co., No. Elias thanks his friend Thomas Vogt and Prof. Melissa 14-0175 (N.D. Cal. Mar. 5, 2019) [hereinafter Second Order to Show Cause] (These fires are “the Cherokee, Honey, and La Porte fires in Butte Powers for their insights on this Article. County; the Blue fire in Humboldt County; the Sulphur fire in Lake County; the Redwood fire in Mendocino County; the Atlas and Partrick 1. Company Profile, Pac. Gas & Elec. Co., https://www.pge.com/en_US/ fires in Napa County; the Lobo and McCourtney fires in Nevada County; about-pge/company-information/profile/profile.page [https://perma.cc/JW the Cascade fire in Yuba County; and the 37, Adobe. Nuns, Pocket, and 4N-8CAP]. Pythian fires in Sonoma County.”). Vol. 12 No. 1 MITIGATING PG&E’S WILDFIRE IGNITIONS 3 This Article proposes an approach to mitigate these wild- lines presenting a higher risk than transmission lines.6 For fire ignitions, while also promoting economic recovery, and example, PG&E power lines created more than 1,500 fire climate resilience. ignitions in a period of just six years. PG&E’s electrical Part II of this Article explains that wildfire ignitions network started five of the ten most destructive California along PG&E’s power lines are a leading cause of California’s wildfires since 2015.7 In 2017 alone, PG&E equipment and wildfires. Vegetation management and upgrading electrical power lines started 17 major wildfires.8 In 2018, PG&E infrastructure would mitigate the issue but are expensive electrical equipment started the Camp Fire, the worst natu- and labor-intensive tasks. PG&E has publicly emphasized ral disaster in
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