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 A DIRTY WASTE-HOW RENEWABLE
ENERGY POLICIES HAVE FINANCED THE
UNSUSTAINABLE WASTE-TO-ENERGY
INDUSTRY

Abstract: The end of the 20th Century saw a major shift in the United States'
approach to energy policy. After decades focused on fossil fuel production, the
country began to realize that renewable sources of energy were the way of the
future. Motivated by environmental concerns and a realization that oil is a fi-
nite resource, the federal government and local governments began adopting
economic policies that rewarded investment in and production of renewable,
clean technology. Governments relied on both mandates and tax incentives to
encourage the use of energy from sources like solar and wind power. Waste-
to-Energy ("WTE") power is another form of energy production that is classi-
fied as renewable. Thus, WTE has benefited significantly from renewable en-
ergy policies. WTE, however, is a form of energy produced by burning trash
and is neither environmentally friendly nor particularly sustainable. Yet, the
WTE industry owes its existence to those government programs designed to
fund sustainable sources of electricity. With WTE drawing from the same pot
of government resources, the policies that were written to stimulate the sus-
tainable energy field and protect the environment have undermined those very
goals by subsidizing the WTE industry. This Note summarizes the WTE pro-
cess and the laws that allowed it to grow, argues that WTE is not economical-
ly sound or environmentally sustainable, and proposes legislative changes to
prevent more harm from WTE in the future.

INTRODUCTION

On March 17, 2016, the residents of South Baltimore had reason to

celebrate.' After years of fighting between the citizens and the Energy An-
swers International power company, the Maryland Department of the Envi-
ronment announced that the permit allowing the energy company to build a
new waste-to-energy ("WTE") power plant in the town of Fairfield had ex-

1See Fern Shen, Maryland DeclaresEnergy Answers' FairfieldIncineratorPermit Expired,

BALT. BREW (Mar. 17, 2016), https://baltimorebrew.com/2016/03/17/maryland-declares-energy-
answers-fairfield-incinerator-permit-expired/ [https://perna.cc/VM6P-US2K] (detailing that the
parties were involved in a six-year conflict over the plan to build a trash incineration power plant
in the southern neighborhood of the Maryland capital city). The Energy Answers International
company wanted to build its waste facility on the site of an old chemical plant. Id. It was opposed
by the citizens of Curtis Bay, Brooklyn, and Brooklyn Park as well as the Environmental Integrity
Project and Free Your Voice, a student run human rights organization. Id.

387
388 Boston College Law Review [Vol. 60:387

pired. 2 Local advocacy groups shared in triumph and relief that the incin-
erator would not be built, stating that the decision saved the area from an-
other facility that would emit toxic substances into the air and the surround-
ing environment. 3
The successful effort to block the new incinerator represents a small
victory for the city, but Baltimore's problem with pollution from WTE is far
from resolved.4 The nearby Wheelabrator Baltimore incinerator, which has
been in operation since 1985, is still the city's greatest single source of air
pollution.5 In 2014, this incinerator was the source of eighty-two percent of
the city's sulfur dioxide pollution and sixty-four percent of the nitrogen ox-
ides.6 Today, it releases around 120 pounds of lead, 99 tons of hydrochloric
acid, 60 pounds of mercury, and 2 tons of formaldehyde in a year.7 Com-
pared to the state average, the number of deaths from lung cancer are twice
as high and the life expectancy is ten years lower for those who live near
the facility." Although correlation is not causation, the residents do believe
the incinerator plays a major role in these figures. 9

2Id. (noting that the contest spanned many years). Waste-to-energy

("WTE"), also called energy
recovery, is the process of burning trash in an incinerator or converting trash through chemical treat-
ment to create electricity. See Energy Recovery from the Combustion of Municipal Solid Waste
(MSW), U.S. ENVTL. PROT. AGENCY, https://www.epa.gov/smm/energy-recovery-combustion-
municipal-solid-waste-msw [https://perma.cc/2G8T-HKP7] [hereinafter Energy Recovery] (describ-
ing the WTE process and its role in the field of renewable energy).
See Shen, supra note 1 (quoting the groups who fought the construction project). Destiny Wat-
ford, a representative of Free Your Voice, stated that this development would allow the community
to bring clean energy alternatives to the area that could create jobs without posing health risks. Id.
Free Your Voice is a group made up primarily of students from the Curtis Bay and Brooklyn areas of
Baltimore that formed to fight the construction of what would have become the biggest incinerator in
the United States. We Demand FairDevelopment! Stop the Incinerator!, STOP THE INCINERATOR,
https://stoptheincinerator.wordpress.com/about-free-your-voice-2/ [https://perma.cc/QT54-K6Q7].
Free Your Voice declares on their blog that "Clean Air Is a Human Right." Id.
4 See Scott Dance, Power Struggle: How a Trash Incinerator Baltimore 's Biggest Polluter-

Became 'Green'Energy, BALT. SUN (Dec. 15, 2017), http://www.baltimoresun.com/news/maryland/

environment/bs-md-trash-incineration-20171107-story.html [https://perma.cc/2FHD-66MH] (report-
ing that a WTE trash incinerator is Baltimore's main source of air pollution).
5 Id. (describing the history of the incinerator in Westport, Baltimore). The incinerator burned

about 723,000 tons in 2016 and the facility has a contract with the city to continue its operations
through 2021. Id.
6 Id., see ECO-CYCLE, WASTE OF ENERGY: WHY INCINERATION IS BAD FOR OUR ECONOMY,
ENVIRONMENT, AND COMMUNITY 2 (2011), https://www.ecocycle.org/files/pdfs/WTEwrong
forenvironmenteconomy community by Eco-Cycle.pdf [https://penna.cc/8SFX-3R7X] [here-
inafter WASTE OF ENERGY] (asserting that these chemicals are known to be very harmful to hu-
mans, causing cancer and respiratory disease, respectively).
Dance, supra note 4 (reporting that the Maryland Department of the Environment has stated
that the facility is the main source of these toxic chemicals).
Id.
See id. (detailing several health issues found in residents living near the facility). The Ches-
apeake Bay Foundation estimates that pollution from the WTE plant may be responsible for al-
most $22 million in health care costs for residents. Id.
2019] Renewable Energy Policies & Waste-to-Energy Industry 389

Importantly, the Baltimore facility, along with around seventy other ac-
tive WTE facilities in the United States, appears to comply with the current
emission standards under the Clean Air Act ("CAA").' 0 The facility re-
ceived about $10 million in state subsidies for renewable energy in the last
six years." This is because, in 2011, Maryland passed a bill that recognized
municipal solid waste ("MSW") as a renewable source of energy.1 2 As such,
the Maryland government has been providing the facility with the same fi-
nancial benefits as wind, solar, and geothermal energy companies.' 3
The situation in Baltimore is not an isolated phenomenon.' 4 In 2014,
thirty-one states had designated MSW as a renewable source of energy, and
twenty-three states had active WTE facilities.' 5 At the federal level, MSW is
also recognized as a renewable source of energy.

10 Id. It is reported that the Maryland waste facility officers meet the permit standards for
monitoring and limiting pollution, and that they pass 800 checks per day to make sure they remain
in compliance with emission standards. See 42 U.S.C. § 7411 (2018) (codifying the Environmen-
tal Protection Agency's (EPA) duty to promulgate regulations establishing emissions standards for
air pollution). Under the Clean Air Act ("CAA"), the EPA must establish national ambient air
quality standards ("NAAQS"). Id. § 7409. States must then submit a plan to comply with and
enforce the NAAQS. Id. § 7410; see MD. CODE. ANN., ENVIR. § 2-302 (West 2018) (stating that
under Maryland law, state NAAQS will mirror those of the federal statute). Following the 1990
amendments, the CAA also requires major polluting entities to obtain and comply with federal
permits. 42 U.S.C. § 7661a. The CAA also provides specifically for the regulation of facilities that
rely on combustion of solid waste. Id. § 7429; see also The Clean Air Act in a Nutshell: How It
Works, U.S. ENVTL. PROT. AGENCY (2013), https://www.epa.gov/sites/production/files/2015-05/
documents/caa nutshell.pdf [https://perna.cc/VPW6-NVW5] (providing a plain text summary and
history of the CAA).
" Dance, supra note 4 (describing how Maryland's energy policy and the federal tax code
have allowed WTE facilities to receive large amounts of money with the hope of promoting re-
newable energy sources).
12 Id. (stating that the WTE industry played a role in drafting and passing legislation that

defined trash as a renewable source of energy); see S.B. 690, 2011 Leg., 428th Sess. (Md. 2011)
(designating WTE as a Tier I energy source akin to solar or wind energy).
13 MD. CODE ANN., PUB. UTIL. § 7-701(r) (West 2017) (classifying WTE as a Tier I renewa-
ble energy source in the same category as solar and wind energy); Dance, supra note 4 (detailing
the state policy that allowed incinerators the same incentives as solar, wind, and geothermal ener-
gy). The law in Maryland has a tiered energy policy that, when implemented in 2004, placed WTE
in a lower classification than wind, solar, and geothermal. Dance, supra note 4. Under this system,
subsidies would end for WTE in 2018. Id. Industry lobbyists, however, succeeded in having WTE
moved up into the top tier for renewable energy in 2011, which means it remains eligible for sub-
sides beyond 2018. Id.
14 See TED MICHAELS, ENERGY RECOVERY COUNCL, THE 2014 ERC DIRECTORY OF WASTE-
To-ENERGY FACLITIES 6, 8 (2014), http://energyrecoverycouncil.org/wp-content/uploads/2016/01/
ERC_2014_Directory.pdf [https://perma.cc/68EV-3KAM] (listing the states that recognize WTE as a
renewable form of energy). In 2014, thirty-one states had laws recognizing WTE as a form of renew-
able energy. Id. at 6. There were eighty active WTE facilities in the United States. Id. at 4. The aver-
age WTE facility processed 96,249 tons of MSW per day. Id.
15 Id. at 6,
8.
16 See I.R.C. § 45(c)(1)(G) (2018) (listing MSW as an energy resource).
390 Boston College Law Review [Vol. 60:387

The reasoning sounds fair on its face-renewable energy, as its name

suggests, comes from sources that renew or replenish themselves quickly
relative to other sources. 7' Solar and wind energy are recognizable renewa-
ble energy sources. 8 MSW is considered renewable in that consumers cre-
ate a constant and reliable stream of household trash.' 9 The goal of using
renewable power is to decrease dependence on finite fossil fuels and utilize
sources that have lesser or no negative impact on the environment. 2 0 There-
fore, many argue that burning waste plays an important role in working to-
ward those ends. 21 Government entities claim that financial incentives and
tax benefits granted to the WTE industry are in an earnest attempt to reach
environmental and sustainability goals .22
Nevertheless, the very laws written to promote sustainability and pro-
tect human health and the environment have actually hindered efforts to
reach those goals.23 By granting financial benefits to the WTE industry,
governments are funding activities that are not truly safe for human health
or the environment. 2 4 The government has disincentivized true clean prac-
tices like solar and wind energy because it is initially more attractive to alter
an existing incinerator to meet air standards than it is to invest in an entirely

17 See 42 U.S.C. § 15852(b)(2) (2018) (providing a definition of renewable energy). Renewable

energy is defined as a list of technology types the federal government recognizes as renewable, rather
than a more abstract summary of renewable properties. See id. (enumerating the recognized renewa-
ble technology types). Other government guidance elucidates the properties that renewable energies
possess. See Renewable Energy Explained, U.S. ENERGY INFO. ADMIN., https://www.eia.gov/energy
explained/index.cfm?page-renewablehome [https://penna.cc/G3PZ-DAN2] (stating that renewable
energy has the property of replenishing and being infinite over a reasonable amount of time); see also
Nonrenewable Energy Explained, U.S. ENERGY INFO. ADMIN., https://www.eia.gov/energyexplained/
?page-nonrenewablehome [https://perma.cc/RJY6-3AS4] (listing recognized non-renewable energy
sources and stating that they do not replenish quickly).
18 See Renewable Energy Explained, supra note 17 (categorizing renewable energy sources).

19 Biomass Explained: Waste-to-Energy (Mdunicipal Solid Waste), U.S. ENERGY INFO. ADMIN.,
https://www.eia.gov/energyexplained/index.php?page-biomass waste toenergy [https://penna.cc/
F3 SG-EDFZ] (listing the elements of MSW, such as organic waste and other combustible materials,
that can be used to create electricity, as well those that cannot, such as inorganic materials like glass).
20 See 42 U.S.C § 13451(b) (stating that among the goals of the Department of Energy regard-

ing energy efficiency are improvements to technology, increases in the use of renewable energy,
and reductions of environmental hann).
21 See Dance, supra note 4 (reporting that the Maryland government had good motives in grant-

ing subsidies to WTE plants, and that this was a logical step towards sustainability at the time they
passed the bill); State Renewable Energy Resources, U.S. ENvTL. PROT. AGENCY, https://www.epa.
gov/statelocalenergy/state-renewable-energy-resources [https://perma.cc/V4B4-PYY7] (describing
the benefits of using renewable energy).
22 See Dance, supra note 4 (stating that Maryland politicians sought to decrease reliance on
fossil fuels and stymie climate change).
23 See WASTE OF ENERGY, supra note 6, at 2 (arguing that WTE is more expensive, less effi-

cient, and more dangerous to human health and the environment than current alternatives, and that
WTE undermines the goals of sustainability legislation).
24 See id. (arguing that WTE facilities emit toxic substances).
2019] Renewable Energy Policies & Waste-to-Energy Industry 391

new plant, purchase the land, and build the facility. 25 When renewable cred-
its were made available for WTE, energy companies took the route of retro-
fitting incinerators.2 6 Thus, government subsidies are allowing polluting
technologies to continue to exist in the same sphere as solar and wind. 27
This has left less money to invest in solar, wind, and geothermal plants
simply because they must draw money from the same pot as WTE. 28 Fur-
thermore, these financial incentives are supporting an industry in WTE that
cannot coexist with actual sustainable practices like recycling, composting,
or zero waste.2 9

25 See Renewable Portfolio Standards, ENERGY JUSTICE NETWORK, https://energyjustice.net/

RenewablePortfolioStandards [https://penna.cc/RN7P-VFDA] (explaining that companies are
more likely to invest in existing renewables than risk investing in new one, given the option).
26 See id. (stating that it is less costly for a company to buy an extant incinerator than invest in

new technology).
27 See id. (reporting that in the early 2000s, clean renewables made up 63% of renewable

energy sold in the US, while biomass contributed 24% to that number). Biomass is a closely relat-
ed field to WTE that relies on organic materials, such as animal and plant waste, rather than trash
in the energy conversion process. See I.R.C. § 45 (2018) (defining and differentiating biomass as
an energy source derived from MSW). Federal tax law treats biomass as unique from WTE. Id.
Other government agencies, however, do not always make such a distinction, and at times treat
WTE as a subset of biomass. See Biomass Explained, U.S. ENERGY INFO. ADMIN., https://www.
eia.gov/energyexplained/index.cfm?page=biomass_home [https://penna.cc/JP5Q-2T8E] (catego-
rizing MSW as a form of biomass). The article Renewable Portfolio Standards,for example, states
that biomass contributed to 24% of the renewable energy sold in the U.S. and then clarifies that
biomass is mostly referring to gas collected in MSW landfills. Renewable Portfolio Standards,
supra note 25. Under the Internal Revenue Code ("IRC"), gas collected from an MSW landfill is
exempt from the definition of biomass, which could thus render the 24% number misleading. See
I.R.C. § 45 (excluding gas collected from MSW landfills from the definition of open-loop bio-
mass). For the purposes of this Note, WTE and MSW will follow their statutory definitions. See
id. Even though biomass is generally targeted in tandem with WTE, a full analysis of biomass is
beyond the scope of this Note.
28 See Renewable Portfolio Standards, supra note 25 (stating that in 2002, 24% of green energy

sold came from the biomass, in this case meaning primarily landfill gas). Green power is renewable
energy that has the least negative impact on the environment. See U.S. DEP'T OF ENERGY ET AL.,
GUIDE TO PURCHASING GREEN POWER 2-3 (2018), https://www.epa.gov/sites/production/files/2016-
01/documents/purchasingguide for web.pdf [https://perma.cc/7KNV-JKMD] [hereinafter GUIDE
TO PURCHASING GREEN POWER] (issuing guidance on procedures for, and benefits of, purchasing
green energy). The Department of Energy notes that utilization of green power is voluntary and ex-
ceeds any current government mandates. Id.
29 See Steffen Lehmann, Resource Recovery and Materials Flow in the City: Zero Waste and
Sustainable Consumption as Paradigms in Urban Development, 11 SUSTAINABLE DEV. L.
&

POL'Y 28, 33 (2010) (arguing for the benefits of "zero waste," an approach that relies on recy-
cling, composting, and demand reduction of resources to mitigate the harms to the environment
and human health, and phases out unsustainable practices); WASTE OF ENERGY, supra note 6, at
11 (contending that the most effective biomass fuel sources are materials that can be composted or
recycled, and that for WTE facilities to remain financially productive, they demand a constant
stream of those materials). Zero waste is a term used to describe a paradigm shift for resource
consumption that eliminates the waste aspect from production cycles. Lehmann, supra, at 28.
Materials like metal, glass, and plastic can be reused or recycled, used in their original state, or
broken down and utilized in different ways, rather than thrown into landfill. Id. at 31. For exam-
392 Boston College Law Review [Vol. 60:387

Part I of this Note begins by describing how the WTE process works.3 0
Part II provides a history of energy policy in the United States. 3 ' Part III
examines federal and state laws that promote the renewable energy field,
including laws regarding WTE.32 Part IV argues that the United States' re-
newable energy policy has in part undermined the goals it purports to ad-
vance. 3 3 Specifically, this Part argues that government subsidies and tax
preferences for renewable energy have financed an industry that is not envi-
ronmentally friendly or properly sustainable.34 Part IV also proposes
amending these laws to remove WTE eligibility from renewable energy
benefits.35

I. TURNING TRASH INTO ENERGY

Federal and state laws provide funding for specifically designated

types of renewable energy.36 In addition to renewable energy produced
through hydropower, wind, geothermal, and solar technology, WTE is a re-
newable energy source that involves conversion of trash into energy.37 The

ple, many products are packaged with recyclable plastics that could have countless other uses. Id.
Zero waste may be achieved by holding manufacturers responsible for the packaging they use and
requiring companies to design products and packaging with an eye toward reuse or recycling at the
end of their initial cycle of use. Id. Third parties also aid zero waste goals by collecting and finding
other uses for trash, such as Madewell Inc., who partnered with Cotton Inc.'s Blue Jeans Go Green
initiative, which collects and converts old denim jeans into insulation. See Recycling Denim for a
Great Cause, BLUE JEANS Go GREEN, http://bluejeansgogreen.org/About-Us/ [https://penna.cc/
8CSJ-MMQ4] (describing a nationwide initiative to repurpose old pants and make them into insu-
lation for buildings); see also How We Do Well, MADEWELL, https://www.madewell.com/inspo-
do-well-denim-recycling-landing.html [https://penna.cc/LDB6-GEMZ] (describing Madewell's
Do Well projects to affect positive changes in the world, and the Blue Jean Go Green process).
30 See infra notes 36-57 and accompanying text.
31 See infra notes 58-81 and accompanying text.

32 See infra notes 82-137 and accompanying text.

See infra notes 138-209 and accompanying text.

1 See infra notes 146-183 and accompanying text.
1 See infra notes 184-209 and accompanying text.
36 See I.R.C. § 45 (2018) (providing an example of one federal statute aimed at providing
financial assistance to renewable energy production); 73 PA. STAT. & CONS. STAT. ANN. § 1648.3
(West 2007) (demonstrating a state level approach).
1 Renewable Energy Explained, supra note 17 (defining different renewable energy sources in
the United States). By definition, renewable energy must have a source that quickly redevelops and
will not run out from use. What Is Green Power?, U.S. ENVTL. PROT. AGENCY, https://www.epa.
gov/greenpower/what-green-power [https://penna.cc/R9N2-4JHT]. WTE is considered renewable,
but not a "green power" source, like solar, wind, and geothermal, which is a subset of renewable
resources that has less or no negative environmental impact. See id. (describing different catego-
ries of renewable power and differentiating green power). Solar power is the process of harnessing
energy or heat from sunlight and turning it into electricity or using it directly to heat a building.
Solar Energy Basics, NAT'L RENEWABLE ENERGY LAB., https://www.nrel.gov/workingwithus/re-
solar.html [https://perma.cc/V38T-CXPV]. Wind power is the process where wind moves a tur-
bine to create electricity. Wind Energy Basics, WIND ENERGY DEV. PROGRAMMATIC EIS, http://
windeis.anl.gov/guide/basics/ [https://perma.cc/WM7X-ZKZC]. Geothermal harnesses the natural
2019] Renewable Energy Policies & Waste-to-Energy Industry 393

EPA recognizes WTE as central to the U.S. strategy for sustainable waste
management. 38 It is thus important to understand how WTE actually
works.3 9
A prominent method of energy conversion is combustion.4 0 In WTE,
MSW is the material that is used in the conversion process. MSW is es-
sentially garbage thrown out in homes and businesses. 4 2 The process begins
when trash vehicles pick up MSW and deliver it to the WTE facilities,
where it is dumped.43 From there, waste is systematically collected and
transferred into an incinerator, where it is burned at very high temperatures
.4 The burning MSW creates heat which converts water into steam, which
then moves a turbine and generates electricity.
The waste is converted into ash as it bums, most of which settles at the
bottom of the combustion chamber as "bottom ash," though small particles
also rise throughout the process, creating "fly ash."4 The bottom ash is es-
timated to be a 90% reduction in volume of waste. 4 7 A filtration system,
called a "baghouse," captures an estimated 96% of the fly ash. 48 The ash is
subsequently collected and dumped in a landfill.49

heat from within the planet. What Is Geothermal Energy, GEOTHERMAL ENERGY ASSOC., http://
geo-energy.org/Basics.aspx [https://perna.cc/YL3C-PFBG].
38 Energy Recovery, supra note 2 (detailing the role of "Energy Recovery" in the EPA's
"non-hazardous waste management hierarchy"). The EPA has established a hierarchy for waste
management, ranking from most to least preferred practices, with "Source Reduction and Reuse"
being the most preferred, and "Energy Recovery" ranking only higher than traditional "Treatment
and Disposal." See Sustainable Materials Management: Non-Hazardous Materials and Waste
Management Hierarchy, U.S. ENVTL. PROT. AGENCY, https://www.epa.gov/smm/sustainable-
materials-management-non-hazardous-materials-and-waste-management-hierarchy [https://perma.
cc/KH5R-E5PS] (presenting the EPA's waste management hierarchy).
3 See infra notes 40-57 and accompanying text.
4o Energy Recovery, supra note 2.
41 Id. (describing the WTE
process).
42 Municipal Solid Waste, U.S. ENVTL. PROT. AGENCY,
https://archive.epa.gov/epawaste/
nonhaz/municipal/web/html/ [https://perna.cc/VE3R-MKQE] (defining municipal solid waste).
4 Energy Recovery, supra note 2.
Waste-to-Energy: How It Works, DELTAWAY ENERGY, http://www.deltawayenergy.com/wte-
tools/wte-anatomy/ [https://perma.cc/AFU5-2ZVQ] (describing how WTE plants operate).
4 Id. The incinerator creates heat that dissolves water in a connected boiler which becomes
steam and powers a turbine. See id. It is not the fly ash that turns the turbine. See id. (illustrating
the biomass process). The emissions from the steam stack, however, are not the benign and uncon-
taminated steam from the turbine, but rather the treated ash that remains after the filtration pro-
cess. See id. (presenting the process that carries the particulate fly ash from the combustion to the
filtration room and then to the stack).
46 Id. Fly ash is particulate waste, too fine and light to settle at the bottom, that the facility

attempts to capture through various filtration processes. Id.

4 Id. Bottom ash is captured and separated by magnets and other metal separators. Id.
48 Id.
4 Energy Recovery, supra note 2; see E. Kalogirou et al., Fly Ash Characteristicsfrom Waste-
to-Energy Facilities and Processesfor Ash Stabilization (2010), https://www.iswa.org/uploads/tx
iswaknowledgebase/Kalogirou.pdf [https://perma.cc/CW45-E9EK] (describing the composition and
394 Boston College Law Review [Vol. 60:387

Sometimes, MSW is sent to a landfill instead of an incinerator.o Here,

the WTE scheme uses anaerobic digestion, another form of energy conver-
sion, where material is placed in an oxygen deficient environment to decom-
pose." Once entombed in a landfill, the organic elements of MSW break
down and release methane gas.5 2 That gas is collected and combusted to pro-
duce electricity.5 3
Energy creation from MSW may take a number of other forms, such as
co-firing, pyrolysis, or gasification. 4 Co-firing is a process in which organ-
ic waste is mixed with traditional fossil fuels like coal to lower the carbon
dioxide ("CO 2 ") production in a furnace and lessen the demand for those
traditional fuel sources." Pyrolysis and gasification are techniques in which
the organic waste is superheated, but not exposed to oxygen so it does not
combust, and instead undergoes a chemical change into a gas or oil. 5 6
Whatever the process, those who support WTE argue it leads to significant-
ly less waste going into landfills, less CO 2 released into the air, and energy
collection from sources that would have traditionally been discarded.

dangers of fly ash). A concern with fly ash is that it contains heavy metals and compounds that are
hazardous to human health. See Kalogirous,supra, at 4 (listing the dangerous elements that have high
concentrations in ash). Because of these dangers, the report also looks at methods to decrease the
reliance on ash landfills. See id. at 1. (summarizing the purpose of the study).
50 See Basic Information About Landfill Gas, U.S. ENVTL. PROT. AGENCY, https://www.epa.

gov/lmop/basic-infonnation-about-landfill-gas [https://perma.cc/5BVC-ZTMS] (describing the

Landfill Gas energy recovery process).
51 Id
52 id
SId.
5 Energy Recovery, supra note 2 (listing other WTE processes); see Benefits of Landfill Gas
Energy Projects, U.S. ENVTL. PROT. AGENCY, https://www.epa.gov/lmop/benefits-landfill-gas-
energy-projects [https://pena.cc/PJC7-9QDB] (describing the collection of methane gas created by
landfills, and how to utilize that gas); Waste to Energy Gasification, GLOB. SYNGAS TECH. COUNCIL,
https://www.globalsyngas.org/syngas-production/waste-to-energy-gasification/ [https://perma.cc/
K4RX-6RLM] (describing gasification as a process that, instead of using the waste as fuel for heat,
creates usable gas at the output of the process).
Biomass Energy, NAT'L GEOGRAPHIC, https://www.nationalgeographic.org/encyclopedia/
biomass-energy/ [https://penna.cc/2G4K-4YZM] (defining the different energy recovery process-
es).
56 Id. During pyrolysis, the biomass fuel is heated to around 390-570 degrees Fahrenheit,
without the presence of oxygen, to prevent the biomass from combusting. Id. This produces an oil-
like substance that can be burned as a fuel. Id. Similarly, in gasification, the biomass is heated to
1,300 degrees Fahrenheit, with limited oxygen, which produces a gas that can also be used as a
fuel source. Id.
5 See Waste-to-Energy: How It Works, supra note 44 (presenting the benefits of WTE as
opposed to fossil fuels). This report estimates that WTE reduces landfill volume by 90%, signifi-
cantly lowers CO 2 emissions, and produces enough energy per day to power 15,000 houses. Id.;
see Christopher Dann et al., Reconsidering Waste-to-Energy: Technology and Regulation Changes
the Outlook for Garbage Burners, 150 PUB. UTIL. FORTNIGHTLY 44, 45 (2012) (arguing that
WTE presents a good fuel alternative for utilities seeking security in the case of legislation that
limits carbon emissions).
2019] Renewable Energy Policies & Waste-to-Energy Industry 395

II. A SUMMARY OF ENERGY POLICY AND RENEWABLE

ENERGY LAW IN THE UNITED STATES

To understand how the current renewable energy laws developed, it is

instructive to examine the recent history of U.S. energy policy.5" From 1916
to 1970, U.S. energy policy was designed to stimulate and promote the do-
mestic fossil fuel industry. 59 The federal government took this approach to
shore up oil reserves in an era where global conflicts could cut off U.S. access
to imported fuel.60 Federal tax law allowed taxpayers involved in oil produc-
tion to deduct numerous costs at values higher than would have been general-
ly permitted. 6 1 This in turn led to lower costs and fewer risks for investors
and operators in the energy industry and lower prices for consumers but dis-
couraged growth in alternative energy. 62
In the 1970s, people in the United States started to grow aware of envi-
ronmental harm caused by human actions.63 Significantly, the United States
also experienced a pair of energy crises due to the 1973 oil embargo and the
Iranian Revolution in 1978.6 Again, the United States shaped its energy

58 SALVATORE LAzzARI, CONG. RESEARCH SERV., RL33578, ENERGY TAX

POLICY: HISTO-
RY AND CURRENT ISSUES 1 (2008), https://fas.org/sgp/crs/misc/RL33578.pdf [https://penna.cc/
W44Y-V7S3] (discussing the context that led to legislation on energy sustainability and environ-
mental responsibility in the 1970s)
59
Id. at 2.
60 See id. at 1 (stating that oil embargoes and price fluctuations are among the factors that
have shaped renewable energy policy); James A. Duffield et al., Ethanol Policy: Past, Present,
and Future, 53 S.D. L. REv. 425, 427 (2008) (stating that conflicts such as World War II disrupted
oil importation, leading to a national policy shift toward renewable energy). One analysis centers
on the bio-fuel industry, which relates to gasoline burned by vehicles rather than wide scale ener-
gy production. See Duffield et al., supra, at 430 (discussing modem laws requiring gasoline to be
blended with ethanol). Nevertheless, the study provides a robust analysis of the factors that in-
formed modem renewable energy policy. See id. at 427.
61 LAZZARI, supra note 58, at 2, 3. Costs such as labor, equipment, and supplies must general-

ly be capitalized, meaning deductions would be taken yearly over the lifetime of the operation. Id.
at 2. Instead, the federal government allowed for those expenses to be deducted in the first year of
operation. Id. at 3. The "percentage depletion allowance" allowed taxpayers to claim a deduction
at 27.5% of their revenue, which was much higher than the deduction for the general rate of deple-
tion. Id.
62 See id. at 3 (detailing the effects of the tax policy favoring fossil fuels prior to 1970). Fossil

fuels were traditionally favored because they were easy to transport, and contained significant energy
producing power in reasonable volumes. Archana Dayalu, Why We Need Sustainable Energy, HAR-
VARD UNIV. GRADUATE SCH. OF ARTS & SCI. BLOG (Dec. 15, 2012), http://sitn.hms.harvard.edu/
flash/2012/why-sustainable/ [https://penna.cc/LN2C-LPV2]. Fossil fuels are finite, however, in
that they are made of organic material from millions of years in the past and have a negative im-
pact on the environment by creating particulate matter and chemicals that have adverse effects on
organic life. Id.
63 LAZZARI, supra note 58, at 2.
64 Duffield et al., supra note 60, at 427-28 (discussing the factors
that led the United States to
seek alternative to reliance on foreign gasoline). In the early 1970s, the demand for oil was much
greater than the production, leading the Organization of Petroleum Exporting Countries to in-
crease oil prices. Id. Due to political tensions, Arab countries enacted an oil embargo on the Unit-
396 Boston College Law Review [Vol. 60:387

policy in response to a disruption in the oil trade, although this time the pol-
icy was crafted to decrease the dependence on foreign oil sources and look
for energy altematives. 65 This led the federal government to offer fewer tax
incentives for oil producers and to create new tax repercussions to discourage
fossil fuel use and punish polluters. The legislature also enacted a tax plan
that created preferences for conservation, sustainability, and alternative ener-
gy sources and technology.6 7 The Public Utility Regulatory Policies Act
("PURPA"), a part of the National Energy Act of 1978 ("NEA"), created ear-
ly mandates to energy suppliers to include electricity generated from renewa-
ble sources.
The preferences offered by the United States took the form of govem-
ment subsidies, including special exclusions, deductions, and tax credits for
taxpayers operating within renewable energy fields. 69 For the first time, the
government allowed taxpayer companies relief from tax liability for activities
relating to renewable energy, alleviating the financial burden and risk of in-

ed States in 1973, causing major shortages in the United States and forcing the country to look to
other forms of energy and oil sources. Id. Although the embargo was lifted in 1974, another crisis
arose in 1978, when a revolution in the major oil exporting country Iran caused laborers to cease
production. Id.
65 See id. (describing the disruptive effect WWII had on oil importation in the United States
and how that informed policy making).
66 LAzzARI, supra note 58, at 3 (detailing the factors that led
to energy tax policy changes).
67 Id. at 4, 5 (describing new tax incentives and subsidies created by the Energy Tax Act of
1978 and subsequent additional subsidies). The Energy Tax Act was one of five acts that together
made up the Nation Energy Act of 1978. James W. Moeller, Electric Demand-Side Management
Under FederalLaw, 13 VA. ENVTL. L.J. 57, 57 (1993); see Energy Tax Act of 1978, Pub. L. No.
95-618, 92 Stat. 3174 (1978). The other acts were: the Public Utility Regulatory Policies Act of
1978 (PURPA), Pub. L. No. 95-617, 92 Stat. 3117 (1978); the National Energy Conservation
Policy Act of 1978, Pub. L. No. 95-619, 92 Stat. 3206 (1978); the Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. No. 95-620, 92 Stat. 3289 (1978); and the Natural Gas Policy Act of
1978, Pub. L. No. 95-621, 92 Stat. 3350 (1978). The Energy Tax Act rolled back benefits to the
oil industry, reducing preferences that subsidized the cost of developing an oil well and benefits
that allowed oil producers to reduce their taxable income by a certain percentage. LAZZARI, supra
note 58, at 4. The new law also created tariffs on traditional fossil fuels like oil. Id. Finally, the
Act introduced subsidies for renewable energy and conservation initiatives. Id.
68 PURPA, Pub. L. No. 95-617, 92 Stat. 3117 (current version at 16 U.S.C. § 2601 (1978)); see

James A. Duffield & Keith Collins, Evolution of Renewable Energy Policy, 21 CHOICES, no. 1,
2006, at 9 (summarizing the history of federal policy regarding renewable energy).
69 See LAZZARI, supra note 58, at 4-5 (listing examples, including subsidies for taxpayers

who invested in alternative and renewable fuels sources, such as wind or solar, and preferable
depletion deduction rates for geothermal energy). Another tax preference at this time made pro-
ducers of energy from solid waste, including early WTE facilities, exempt from taxation on the
interest from industrial development bonds. Id. at 5.
2019] Renewable Energy Policies & Waste-to-Energy Industry 397

vesting into renewable technology. 70 These subsidies are the earliest examples
of the tax incentives that still apply to current renewable energy producers.
By the end of the twentieth century, the focus of U.S. energy policy
shifted away from traditional fossil fuels and focused primarily on renewable
energy. 72 Concerns about greenhouse gases and climate change began to in-
form policy making under Presidents George H. W. Bush and Bill Clinton. 73
The Energy Policy Act of 1992 ("EPAct") rewarded energy supply companies
that sourced a percentage of their electricity from renewable sources. 4 The
updated EPAct of 2005, under President George W. Bush, marked an even
greater shift, gearing policy toward energy created by wind power. * By 2008,
the cost of preferences for energy efficiency, alternative fuel sources, and re-
newable energy was twice that for fossil fuels. 76 Today, the goals enacted by

70 See id. at 4 (stating that the Energy Tax Act implemented credits, deductions, and exclu-
sions for taxpayers working with renewable energy or in conservation).
71 See id. at 4-5 (describing how certain incentives like tax credits for residents
have expired
but have led to many other current and active tax credits). Renewable electricity tax credits, for
example, were first introduced in 1992 and were continually renewed to subsidize renewable en-
ergy activities. Id. at 5 (stating that the renewable electricity tax credit first introduced in 1992 was
expanded under the American Jobs Creation Act of 2004).
72 See id. at Summary (suggesting that while economics played a role in Presidents Bush Sr.

and Clinton's energy policy, the policy was also influenced by environmental concerns about
climate change and greenhouse gases).
73Id.
7 Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (1992) (amending and
updating PURPA, in part); see Duffield & Collins, supra note 68, at 10 (describing components of
the Energy Policy Act ("EPAct")); Moeller, supra note 67, at 57 (stating that the amendments
focused partially on promoting sustainability on the demand side). EPAct also extended tax credits
to fuels that incorporated a percentage of ethanol, a fuel derived from corn, with traditional fossil
fuels. Duffield & Collins, supra note 68, at 10. Similarly, the vehicle industry was encouraged to
introduce vehicles that could run on alternative fuels sources. Id.
Energy Policy Act of 2005, Pub. L. No. 109-58, 119 Stat. 594 (2005); see FederalSupportfor
Developing, Producing, and Using Fuels and Energy Technologies: Hearing Before the H. Sub-
comm. on Energy & Commerce, 115th Cong. 3 (2017), https://www.cbo.gov/system/files?file=115th-
congress-2017-2018/reports/52521-energytestimony.pdf [https://penna.cc/2UGV-SE7N] [herein-
after Hearing Before the H. Subcomm. on Energy & Commerce] (testimony of Terry Dinan, Sen-
ior Advisor, Microeconomic Studies Division, Congressional Budget Office stating that energy
policy shifted toward efficiency and alternative fuel sources, leading to spending increases on
energy-related tax incentives and decreases in that spending being fossil fuel related); Duffield
&

Collins, supra note 68, at 10 (stating that this Act led to significant growth of the wind power field
by offering production credits, which are tax credits with value based on a relationship to electrici-
ty produced by specific means). These production credits for wind were extended by the 2005
Energy Policy Act into the year 2007. Duffield & Collins, supra note 68, at 10.
76 HearingBefore the H. Subcomm. on Energy & Commerce, supra note 75, at 3 (describing
the effects of EPAct of 2005 and subsequent legislation). The American Recovery and Reinvest-
ment Act ("ARRA") in 2009 expanded tax preferences and created new programs like the Section
1603 grant, which allowed renewable production companies a onetime cash payout instead of tax
credits. American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115
(2009); see Hearing Before the H. Subcomm. on Energy & Commerce, supra note 75, at 3 (stating
398 Boston College Law Review [Vol. 60:387

the EPAct of 1992 still stand, declaring that through energy conservation re-
search and development, the United States should seek to improve economic
efficiency and strength while still considering environmental costs and strive
to reduce harmful environmental impacts related to the energy industry.
During the early 2000s, state lawmakers also began crafting policies to
promote renewable energy. 8 States have often encouraged a more direct ap-
proach to renewable energy through government mandates.79 This was ac-
complished by instituting Renewable Portfolio Standards (RPSs), which re-
quired energy supply companies obtain a percentage of their electricity from
renewable generators.o By 2015, twenty-nine states and Washington D.C.
had adopted mandatory RPSs.8
'

III. RENEWABLE ENERGY INCENTIVES ARE THE

LIFEBLOOD OF THE WTE INDUSTRY

The federal and state governments currently take different approaches to

renewable energy law. 82 The federal government generally utilizes tax prefer-
ences to implement energy related goals.83 States tend to adopt RPSs to either
encourage or mandate that a certain percentage of energy sold in the state
comes from renewable sources. 4 In order to understand what approach
should be taken in the future, one must first examine the current laws."5 Sec-

that ARRA amended parts of the EPAct as part of President Obama's stimulus package in re-
sponse to the 2008 recession).
7 See 42 U.S.C. § 13041 (2018) (enumerating the goals of for future research and develop-
ment of sustainable technologies).
78 Duffield et al., supra note 60, at 437 (reporting that at least eight states have implemented
standards that require gasoline to contain a percentage of ethanol). Ethanol is a form of fuel that is
derived from corn, and can be produced in the United States, thus relying on a renewable source,
unlike fossil fuels, and stimulating local economies. Id. at 426.
7 Id. at 437. State programs rely on tax preferences, incentives for renewable energy genera-
tors, and mandates to promote their goals. Id.
s U.S. ENVTL. PROT. AGENCY, ENERGY AND ENVIRONMENT GUIDE TO ACTION, at ES-5
(2015). States goals include reducing overall energy consumption, deriving a certain amount of
energy from renewable resources, lowering pollution, and achieving better energy efficiency. Id.
s Id. at 1-6.
82 Compare I.R.C. § 45 (2018) (detailing the PTC approach that
relies on tax incentives to
effectuate renewable energy goals), with Renewable Portfolio Standards, supra note 25 (detailing
the RPS strategy that often relies upon government mandates).
" I.R.C. § 45 (codifying the current federal tax credit for renewable energy production). One of
the most common tax preferences is the tax credit, a government subsidy that allows a taxpayer to
subtract a specific amount of money from total taxes owed. What Is a Tax Credit?, INTERNAL REVE-
NUE SERV. (Oct. 11, 2018), https://www.irs.gov/credits-deductions-for-individuals [https://perma.
cc/R2H{X-F5JC].
8 See IND. CODE § 8-1-37-10 (2018) (providing an example of an incentive based RPS); 73
PA. STAT. & CONS. STAT. ANN. § 1648.3 (West 2007) (demonstrating a mandate-based standard).
85 See infra notes 88-137 and accompanying
text.
2019] Renewable Energy Policies & Waste-to-Energy Industry 399

6
tion A analyzes the federal tax credit regime. Section B lays out the state
RPS approach. 7

A. FederalIncentivesfor Renewable Energy

The main vehicle by which the federal government has effectuated its
renewable energy goals is through tax credits, specifically Renewable Elec-
tricity Production Tax Credits (PTC) and the Business Energy Investment Tax
Credits (ITC)."" The PTC, originally enacted under the EPAct of 1992, cur-
rently allows taxpayer businesses in the renewable energy field to deduct
$0.023 for every kilowatt hour (kWh) of electricity produced from their taxes
owed. 89 This credit, however, is only available for wind, geothermal, closed-
loop biomass, and solar energy. 90 WTE is situated, with open-loop biomass
and coal, among others, in a group that only qualifies for fifty-percent of the
PTC, or about $0.012/kWh. 91 The credit applies to the first ten years of the
operation of an energy facility. 9 2 Additionally, the credit has been slowly
phased out. 93 For a WTE facility to be eligible for this credit, the facility had
to have begun construction before January 1, 2018.94 Wind facilities, on the
other hand, will remain eligible for the credit until 2020, although the value
will be decreased by 20% each year.95

86 See infra notes 88-115 and accompanying text.

87 See infra notes 116-137 and accompanying text.
8 See I.R.C. §§ 45, 48 (2018) (codifying the PTC and IRC, respectively).

89 See id. §§ 45(a) (stating that the PTC allows a credit of $0.015 for every kilowatt hour
(kWh) of electricity), 45(b)(2) (stating that the $0.015 credit will based on its value in 2002, and
thus subject to inflation); Energy Policy Act of 1992, Pub. L. No. 102-486, 106 Stat. 2776 (1992)
(instituting the PTC); Renewable Electricity Production Tax Credit (PTC), U.S. DEP'T OF ENER-
GY, https://www.energy.gov/savings/renewable-electricity-production-tax-credit-ptc [https://penna.
cc/L4B9-Z268] (estimating that the current value of the PTC is approximately $0.023 and stating
that the first PTC was enact in the EPAct of 1992).
90 See I.R.C. §§ 45(a)(2)(A)(i) (stating that the credit is available to qualified energy re-
sources), 45(b)(4)(a) (exempting certain types of technology from the full credit, and instead
granting only a fifty percent credit to those technologies including MSW), 45(c) (defining quali-
fied energy resources).
91 See id. §§ 45(b)(2) (explaining how the credit adjusts based upon inflation), 45(b)(4)(a)

(listing the technologies that are eligible for only half the value of the full credit).
92 See id. § 45(a)(2)(A)(ii) (stating that the general rule applies the credit for ten years after
the day the facility is put into operation).
9 See id. § 45(b)(5) (detailing the gradual step down in value for wind facilities). The PTC
steps down in value by 20% if the facility began construction after December 31, 2016, but before
January 1, 2018, then again to 40% of the original value if the facility began construction after
December 31, 2017, but before January 1, 2019; and finally, to 60% if the facility began construc-
tion after December 31, 2018, and before January 1, 2020. Id.
9 See id. § 45(d)(6)-(7) (defining the deadline for construction to begin on a landfill gas
facility and a trash facility, respectively). Under the Code, a landfill gas facility is one that pro-
duces electricity from gas created by MSW breaking down. Id. § 45(d)(6). "Trash facilities" is the
term used by the Code to describe WTE, a facility that bums MSW. Id. § 45(d)(7).
9 Id. § 45(b)(5).
400 Boston College Law Review [Vol. 60:387

The ITC is closely related to the PTC, though it focuses primarily on

solar energy. 96 In general, the ITC is worth 30% of the basis of a facility
that relies on enumerated solar energy technologies placed in service during
the taxable year.9 7 In other words, a company can apply a 30% credit to the
cost of their investment in a facility. 98 The ITC, however, also provided a
10% tax credit for facilities that are eligible for the PTC, but opt not to utilize
that credit. 99 In short, a company constructing a WTE facility could utilize the
ITC against their investment in the facility. 00 This was limited by the re-
quirement that the facility be under construction by January 1, 2018, and as
such the ITC is no longer available to WTE.10
There are several aspects of the PTC worth examination. 102 First, it is
important to note that new WTE facilities, those that began construction after
January 1, 2018, will not be eligible for this credit. 03 When compared to the
fact that wind energy remains eligible until 2020, it seems the law may rec-
ognize that wind should be treated as unique from other energy production
technologies. 0 4 Furthermore, WTE was not eligible for the full value of the
credit; indeed the credit for WTE was only half of what was available to wind
105
energy.
Nevertheless, it is notable that even though WTE is not eligible for
new credits, any facility that had begun construction before January 1, 2018
will continue to enjoy that credit for the following ten years. 0 6 Thus the

96 Id. § 48(a)(2) (describing the energy property for which the entire 30% credit is available).
The Code defines energy property to include primarily solar energies. Id. § 48(a)(3). The Code
also allows for utilization for this credit in the case that a taxpayer does not or has not previously
utilized the PTC. Id. § 48(a)(5)(B).
Id § 48(a)(2)(A)(i); see 26 U.S.C. § 1012 (2018) (defining basis generally as the cost of
real property).
98 I.R.C. § 48(a)(2)(A)(i); Business Energy Investment Tax Credit (ITC), U.S. DEP'T OF EN-
ERGY, https://www.energy.gov/savings/business-energy-investment-tax-credit-itc [https://penna.
cc/35T5-ST7Y] (summarizing the Investment Tax Credit ("ITC") in plain language).
9 See I.R.C. §§ 48(a)(2)(A)(ii) (stating that any energy property not specified under subsec-
tion 48(a)(2)(A)(i) is eligible for a 10% tax credit), 48(a)(5)(C) (stating that certain energies from
section 45 may be treated as energy properties for the purposes of this section).
'oo See id. § 48(a)(3) (describing the property and activity to which the ITC applies). The ITC
is a credit related to a taxpayer's investment in an energy property, so it arises when a taxpayer is
building or purchasing a facility. Id.
0 Id. § 48(a)(5)(C).
102 See id. § 45.

103 Id. § 45(d)(6)-(d)(7).

104 See id. § 45(b)(5) (detailing that the PTC is still available to new wind facilities until
2020).
105 See id. § 45(b)(4) (detailing the technologies for which only half the credit is available).
106 See id. § 45(a)(2)(A)(ii) (stating that the ten-year period to
utilize the PTC begins when the
facility is placed in service). It is important to consider that the ten-year period begins running
later than the cutoff date for credit eligibility under subsection (d)(7), which is attached to when
the facility begins construction. Id.
2019] Renewable Energy Policies & Waste-to-Energy Industry 401

WTE industry may continue to enjoy considerable tax benefits until the
year 2028.107 It is important to reiterate that that WTE will be drawing
funds from the same source as wind energy.'os
The ITC gives rise to effectively the same analysis.1 09 It is apparent
that the ITC is designed to favor solar credits, but in the process it did allow
resources to flow toward the WTE industry."1 0 Although the ITC is no long-
er available to WTE projects, it does demonstrate that for over a decade,
resources that are primarily allocated toward solar energy have been availa-
ble to the WTE field."' Additionally, past energy tax credits have expired
only to be renewed again later under new legislation.11 2 At the end of 2017,
the Trump administration unveiled its tax reform bill." 3 The bill did not re-
new the tax credits for renewables, which were last extended in 2015, but it
also did not repeal the current phasing out process that allows eligible renew-
able energy producers to enjoy production credits. Nevertheless, it is rea-
sonable to posit that a future administration could reestablish or institute new
tax credits." 5

107 See id.

los Id. §45.
109 Compare id. (giving superior tax credits to wind power), with id. § 48 (granting favorable
credits to solar energy, primarily).
110 See id. §§ 48(a)(2) (granting a 30% credit to primarily solar properties), 48(a)(5)(C) (al-
lowing a 10% credit for other technologies as enumerated under section 45).
111 See id. § 48(a)(5)(C) (stating that qualified facilities as defined under section 45 are only
eligible for such credits if they began construction before January 1, 2018). The type of energy
property that qualifies for the 30% credit also has a deadline to begin construction before January
1, 2022, under the current statute. Id. § 48(a)(3).
112 See Duffield & Collins, supra note 68, at 10 (stating that the EPAct of 2005 reestablished

credits for wind energy that had expired in 2003).

11' Joseph Bebon, President Trump Signs Tax Bill with Solar ITC Intact, SOLAR INDUS. (Dec.
26, 2017), https://solarindustrymag.com/president-trump-signs-tax-bill-solar-itc-intact [https://
perma.cc/N9BA-MWNX] (commenting on the effects of the new tax plan on solar tax credits).
The bill keeps in place the ramping down process that allows subsides to decrease gradually
through the year 2021. Id.
11' Id. The PTC remains intact for wind energy, meaning that wind facilities that started con-
struction after December 31, 2019, have a three-year scale down process where the tax credit is
still available to new facilities, but decreasing by 20% more each year. I.R.C. § 45. Wind facilities
that began construction in 2017 are eligible for a credit reduced by 2 0% of the original amount,
which was $.019/kilowatt hour, then by 40% in 2018, and 60% in 2019. Id. For non-wind technol-
ogies, including WTE, new ITCs ceased to be available at the end of 2016, but the rule still allows
any facility that began construction before that date to use the credit for a period of 10 years. Id.
11' See Duffield & Collins, supra note 68, at 10 (stating that credits had expired in the past
only to be renewed years later).
402 Boston College Law Review [Vol. 60:387

B: Renewable PortfolioStandards-The State Approach

States often rely on a different approach to renewable energy, the
RPS. 6 An RPS is a regulation requiring energy suppliers to obtain a certain
amount of the electricity from a renewable source." 7 These can range from
aspirational financial incentives to firm mandates." 8 Currently twenty-nine
states have some version of an RPS, and more have renewable energy
goals." 9 Consider first Indiana's Voluntary Clean Energy Portfolio Standard
Program.120 This system encourages, but does not require participation.121
In brief, an energy supplier is incentivized to obtain four percent of its ener-
gy from a renewable source by December 31, 2018, seven percent by De-
cember 31, 2024, and at least ten percent by December 25, 2025.122 Should
a company meet these goals, the state will compensate the company, allow-
ing favorable recovery of costs incurred by the company.1 23 Indiana does
not differentiate between the sources of clean energy, meaning a company
could meet the RPS goals while relying solely on energy derived from
WTE.1 24
Alternatively, Pennsylvania's Alternative Energy Portfolio Act is a
government mandate, where suppliers must comply with state regulations or
pay additional fees.1 2 5 This regulation has a two tiered system, where tier I
technology includes, but is not limited to, wind, solar, and geothermal ener-

116 Renewable Portfolio Standards, supra note 25 (describing the RPS as a public policy
based approach, unique from a market-based approach).
117 Id.
See id. (clarifying that some states have legal standards that must be met, while others
11s
merely have energy goals).
119 Id. Iowa established the first RPS in the United States in 1983. Id. Hawaii has the most
robust RPS, with the goal of 30% of energy coming from renewables in 2020, and 100% by 2024.
Id.
120 See IND. CODE § 8-1-37-10 (2018) (authorizing the creation of Indiana's RPS, titled the

Voluntary Clean Energy Portfolio Standard Program).

121 See id. § 8-1-37-11 (describing the process for an energy supplier to opt into this voluntary

program).
122 Id. § 8-1-37-12.

123 See id. § 8-1-37-13 (laying out Indiana's recovery system).

The statute allows the state to
"establish a shareholder incentive consisting of authorization of an increased overall rate of return
on equity, not to exceed fifty (50) basis points over a participating electricity supplier's authorized
rate of return . . . ." Id. An analysis of companies' return on equity is beyond the scope of this
Note.
124 See id. § 8-1-37-4 (enumerating the types of energy technology from which a supplier may

obtain their energy under the program, including but not limited to wind, solar, and WTE). The
statute does, however, exempt incineration of MSW, allowing only WTE that relies on "ad-
vanced" solid waste technologies. Id. § 8-1-37-4(a)(9), (b). The statute does not positively define
what "advanced" technologies are, but implies by omission that it is technology that does not rely
combustion of MSW. Id. § 8-1-37-4(b).
125 See 73 PA. STAT. & CONS. STAT. ANN. § 1648.3(f) (West 2007) (authorizing the state to
extract a fee if a facility is found not in compliance).
2019] Renewable Energy Policies & Waste-to-Energy Industry 403

gy, while tier II includes coal and MSW.1 26 Under this system, energy com-
panies must derive at least eight percent of their electricity from tier I re-
sources, and ten percent from tier II resources by May 31, 2021.127 There
are also additional requirements for the use of solar energy.128
To help effectuate this goal, Pennsylvania has implemented a tax credit
system. 129 These alternative energy credits ("AECs") are equal to the num-
ber of megawatt-hours of energy created using renewable means. 30 Credits
are tracked to measure the compliance of an energy company. 131If an ener-
gy company satisfies its energy goals, it can transfer its additional credits to
aid companies struggling to reach the state standards.1 32
The difference between these two approaches is fairly stark.1 33 The In-
diana statute offers financial incentives to companies that sell energy pro-
vided by renewable sources.1 34 The Indiana statute does not make a distinc-
tion between the sources of renewable energy-wind and solar are treated
as equal to WTE.1 35 The Pennsylvania approach is substantially different as,
instead of tax incentives, it issues mandates.1 3 6 Furthermore, the Pennsylva-
nia model differentiates between types of energy, stating that a certain per-
centage of energy must come from tier I renewables, which consists of
types energy considered generally less polluting than those in tier 11.137

12 Id. § 1648.2. Tier I consists of energy from (1) solar, (2) wind, (3) low-impact hydropow-
er, (4) geothermal, (5) biologically derived methane gas, (6) fuel cells, (7) biomass, and (8) coal
mine methane gas. Id. Tier II relies on (1) waste coal, (2) distributed generation systems, (3) de-
mand-side management, (4) large-scale hydropower, (5) MSW, (6) wood related waste, (7) coal
gasification technology. Id.
127 Id. § 1648.3(b),
(c).
12 Id. § 1648.3(b)(2).
129 Id. § 1648.3(e).

130 Id. § 1648.3(e)(4).

"' Id. § 1648.3(e)(2) (requiring the state to establish an administrative entity whose duties are
the creation, overseeing, tracking, and reporting of the AEC program).
132 Id. § 1648.3(e)(8) (requiring the state to establish a registry relating to transfers of energy
credits between entities).
13 Compare IND. CODE § 8-1-37-13 (allowing participating entities to recovery on their in-

vestment costs), with 73 PA. STAT. & CONS. STAT. ANN. § 1648.3(f) (authorizing the state of
Pennsylvania to impose additional payment costs on any entity that fails to comply with the stat-
ute).
134 See IND. CODE § 8-1-37-13 (establishing the Indiana goal based RPS where a taxpayer
who chooses to derive energy from renewable sources may be entitled to recovery on their in-
vestment).
135 See id. § 8-1-37-4 (including certain types of WTE in its definition of a "clean energy

resource" eligible for the incentive).

136 73 PA. STAT. & CONS. STAT. ANN. § 1648.3(a).
137 Id. § 1648.3(b), (c).
404 Boston College Law Review [Vol. 60:387

IV. WTE Is NOT ENVIRONMENTALLY FRIENDLY, TRULY

SUSTAINABLE, OR ECONOMICALLY SOUND

There is reason to believe WTE power is an elegant solution for a so-

ciety with a serious waste problem.1 38 For example, research suggests that
in 2013, the waste sent to landfills could have been used to power 14 mil-
lion homes, which equals roughly 240 million barrels of oil.1 3 9 Furthermore,
there is evidence that diverting waste could reduce environmental harms
created by landfills, in terms of both greenhouse gases emitted and toxins
seeping into the land and groundwater.1 40 These forms of energy production,
however, have a number of consequences that have an adverse impact on
human health and the environment that do not arise in other renewable en-
ergy sources. Moreover, given a critical examination, recovering energy
from WTE is a process that is not truly sustainable.1 42 Section A synthesizes
research suggesting that WTE is a harmful technology. 143 Section B pre-
sents the position that WTE is not economically sustainable either. 144 Sec-
tion C proposes that laws tailored to benefiting renewable energy should be
renewed but altered to prevent WTE from continuing to thrive.

A. Too Dirty to Be Clean Energy WTE Expels Numerous

Toxins into the Air, Land, and Water
Even though the EPA classifies WTE power as renewable energy along
with solar, wind, and others, it does not generally consider it a source of

138 Dann et al., supra note 57, at 45 (stating that in 2012, the United States was generating
around 243 million tons of municipal solid waste and spending around $18 billion on landfills in
conjunction with that waste).
139 Emilio Lamanna, Note, The Wealth in Waste: America's Ability to Enter the Waste to

Energy Market by Embracing European Landfill Diversion, Waste Framework, and Renewable
Energy Laws and Waste to Energy Initiatives, 25 CARDOZO J. INT'L & COMP. L. 347, 353 (2017)
(quoting the estimates of James Stewart, the Chair of California's BioEnergy Producers Associa-
tion). The fourteen million homes represent about 12% of the total United States. Id.
"0 Id. at 353-54 (quoting Stewart, who states that gas created in landfills is about 250-50%
CO 2 and 500o- 7 5% methane, two major greenhouse gases). Stewart goes on to explain that the
United States sends around 60% of its waste to landfills, compared to Europe's two percent, and
that as a result, there is significant toxic runoff in the form of leachate getting into the U.S. water.
Id. at 354. Leachate is the liquid byproduct of the landfilling process that can potentially leak into
the environment if not contained. Id.
141 See Renewable Portfolio Standards, supra note 25 (distinguishing broadly biomass from
wind, solar, geothermal, and others, because it is much dirtier).
142 WASTE OF ENERGY, supra note 6, at 13 (arguing that MSW should not be considered re-

newable because it is composed of many non-renewable materials like plastics). Plastics and
packaging, which make up a significant amount of general household waste, are petroleum-based
products. Id.
143 See infra notes 146-166 and accompanying text.
144 See infra notes 167-183 and accompanying
text.
145 See infra notes 184-209 and accompanying
text.
2019] Renewable Energy Policies & Waste-to-Energy Industry 405

"green power." 4 6 Green power, sometimes called clean renewable energy,

describes production processes that do not create any significant pollution
or harm the environment. 4 7 This does not apply for WTE, as these process-
es emit numerous toxins and chemicals into the environment. 48
WTE incinerators emit a vast array of chemicals through the facility's
steam stack.1 4 9 Even though there are a number of filtration systems in
place at these facilities, even a state-of-the-art incinerator allows some per-
centage of fly ash to escape.15 0 This is problematic, even at those low
amounts, because those pollutants have qualities that make them especially
hazardous in that they degrade slowly, accumulate in organic tissue, and are
highly toxic. '5'
Chemicals with these qualities are known as Persistent Bioaccumulative
Toxic ("PBT") chemicals.1 52 These chemicals are specifically defined by the
EPA under the Toxic Release Inventory ("TRI") Program.'5' The EPA created
the TRI program as part of the Emergency Planning and Community Right-
to-Know Act, a regulation requiring, among other things, state governments
to have an emergency response plan for chemical accidents and pollution-
creating facilities to report emission numbers of dangerous toxins. s The EPA

146 See GUIDE TO PURCHASING GREEN POWER, supra note 28,

at 2-3 (providing guidance that
states that green energy has more environmental benefits than standard renewable energy but is
not mandatory under federal law).
147 See Renewable Portfolio Standards, supra note 25 (stating that clean
renewables are best
limited to solar and wind power, with the possibility of some exceptions for geothermal and types
of hydroelectric).
148 See WASTE OF ENERGY, supra note 6, at 8 (presenting evidence that WTE causes pollu-
tion).
149 See id. at 9 (claiming that inspectors often only inspect stack emissions when they are

operating at optimum levels).

150 See id. at 8 (stating that facilities "emit particulate matter, volatile organic compounds,
heavy metals, dioxins, sulfur dioxide, carbon monoxide, mercury, carbon dioxide, and furans").
151 Id. (describing the chemicals as persistent, bioaccumulative, and toxic). Persistent chemi-
cals are resistant to degradation both in the environment and can be absorbed or consumed by
humans. Persistent, Bioaccumulative, Toxicants, SCI & ENVTL. HEALTH NETWORK, http://safer
chemicals.org/wp-content/uploads/sites/3/2014/07/PBT-Factsheet.pdf?x38790 [https://penna.cc/
AGB6-PNHA]. Bioaccumulative chemicals build up within organic matter and can be stored in
high concentrations inside animals and humans. Id. Toxic chemicals cause health and environmen-
tal damages when consumed or absorbed. Id.
152 Persistent, Bioaccumulative Toxic (PBT) Chemicals Covered by the TRI Program, U.S.
ENVTL. PROT. AGENCY, https://www.epa.gov/toxics-release-inventory-tri-progmm/persistent-bio
accumulative-toxic-pbt-chemicals-covered-tri [https://penna.cc/8JSB-YGSV] (listing chemicals
and compounds that the EPA has categorized as uniquely threatening to human health and the
environment due to their persistent, bioaccumulative, and toxic nature).
153 Id. TRI reporting is part of the Emergency Planning and Community Right-to-Know Act
(EPCRA). See 42 U.S.C. § 11023 (2018).
154 42 U.S.C. § 11023; see What Is EPCRA?, U.S. ENVTL. PROT. AGENCY, https://www.
epa.gov/epcra/what-epcra [https://perma.cc/LC9B-MZB9] (summarizing the basics of EPCRA).
406 Boston College Law Review [Vol. 60:387

requires WTE facilities to monitor and report on emissions, as they are

known to carry specifically dangerous chemicals.'
Evidence supports the assertion that WTE facilities are dangerous as
well. ' 6 Baltimore reported that life expectancy near their WTE facility was
ten years less than the rest of the state, with higher cancer rates. ' 7 Studies
suggest a correlation between proximity to a WTE facility and a likelihood of
developing a number of diseases. 5 Reports link WTE pollution to increased
mortality rates from childhood cancers, as well as throat, liver, stomach, rec-
tum, and lung cancer. 5 9 Other reports evidence the connection between WTE
pollution and developmental ailments, such as abnormal puberty and sexual
maturation in children.16 0
Proponents of WTE argue that diverting waste from landfills means
there is an aggregate environmental good from incineration.1 6 ' The core of
the argument is that landfills create both greenhouse gases and leachate, a
toxic liquid byproduct of landfilling that can seep into the ground should it
breach the landfill's liner.1 62 Although that argument is fundamentally sound,
WTE does not get rid of the need for landfills.1 63 Even though incinerators

155 Toxic Chemicals in Wastes, U.S. ENVTL. PROT. AGENCY (2014), https://cfpub.epa.gov/

roe/indicatorpdfcfm?i=58 [https://perna.cc/2G9H-ML76] (explaining that toxic chemicals may

be produced by private waste treatment activities, and the producer must report those chemicals
according to the TRI program).
156 See WASTE OF ENERGY, supra note 6, at 9 (detailing studies that suggest several illnesses

connected with those living in close proximity to biomass facilities).

157 See Dance, supra note 4 (describing the mortality statistics around the facility). Statistics
can be difficult to attribute to any one source. See id. (reporting that the residents around the in-
cinerator believe it to be the cause of the poor health in the community). Further, there is the prob-
lem of environmental justice, which is the idea that environmental harms are not bore equally by
the entire population, specifically, poor people and people of color are much more negatively
impacted due to factors such as exclusion from policymaking. Jeanne Marie Zokovitch Paben,
Green Power & Environmental Justice Does Green Power Discriminate?, 46 TEx. TECH. L.
REv. 1067, 1071 (2014). Marginalized groups shoulder the costs of environmental progress dis-
proportionately. Id. at 1071-72. For example, residents of the only county in Florida that is pre-
dominately black had to fight the construction of a biomass facility, as did the citizens of a pre-
dominately black neighborhood in Tallahassee. Id. at 1095.
158 PEMBINA INST., INCINERATION OF MUNICIPAL SOLID WASTE: AN UPDATE ON POLLUTION
2-3 (2007), http://www.pembina.org/reports/IncinerationFSPollution.pdf [https://penna.cc/9A3D-
G9RE]. In addition to cancer, the study shows that children living near a waste facility may not
properly go through puberty or reach sexual maturity. Id. at 2.
15 9
Id. at 2.
16 Id. WTE facilities generate dioxins that are among the most harmful to humans, as well as
particulate matter that is a known contributor to cardiovascular diseases, pulmonary diseases, and
cancer. Id.
161 See Lamanna, supra note 139, at 353-54 (arguing that because WTE diverts trash from
landfills, it contributes to decreasing greenhouse gases).
162 Id. at 354 (describing leachate as "hazardous sludge that poisons freshwater sources" that

can leak from a landfill).

163 See WASTE OF ENERGY, supra note 6, at 10 (arguing that incinerators create significant

amounts of waste ash, that must still be disposed of in a landfill).

2019] Renewable Energy Policies & Waste-to-Energy Industry 407

reduce waste volume by around 90 percent, there is still plenty of leftover

toxic ash, which will have to be buried in designated landfills. 6 4 Landfill lin-
ers are designed to entomb unwanted wastes, but in reality they have a limited
effective life before substances begin to pass through into the environment. 65
Even in the case where a landfill is constructed in full compliance with the
law, there is the eventuality that the toxic ash will contaminate the environ-
ment.' 6 6

B. WTE Is Too Wasteful to Be Sustainable as It Relies on

Waste and FiniteMaterialsas Fuels Sources
Environmental concerns notwithstanding, there is also the belief that
WTE is not sustainable. 6 7 Much of what ends up in MSW comes from non-
renewable sources, such as plastics that were not properly recycled. '6 " An
incinerator company wants the most reliable fuel sources to optimize their
equipment.1 69 Paper and plastics, which could be recycled, happen to also be
the materials that burn the most efficiently.17 0 As a for-profit endeavor, WTE

164 Id (arguing that incinerators create harmful byproducts in significant numbers).

165 G. FRED LEE & ANNE JONES-LEE, FLAWED TECHNOLOGY OF SUBTITLE D LANDFLLING OF
MUNICIPAL SOLID WASTE 10 (2015), http://www.gfredlee.com/Landfills/SubtitleDFlawedTechnPap.
pdf [https://perma.cc/ELG7-9PUA] (stating that the plastic landfill liner will eventually fail and allow
substances to leak out); see Criteria for Municipal Solid Waste Landfills, 40 C.F.R. § 258.40 (2018)
(specifying the construction standards an MSW landfill must satisfy). A landfill must be built with a
composite liner, a two-layer system that has a plastic layer encased in a densely packed soil layer. 40
C.F.R. § 258.50(b).
166 See Letter from Heather A. Murray, Staff Attorney, Conservation Law Foundation, to Robert
Boucher Jr., President & CEO, Wheelabrator Saugus, Inc., and Wheelabrator Technologies, Inc., at 3
(May 22, 2017), https://www.clforg/wp-content/uploads/2017/05/2017-05-22-HNAL-Wheelabrator-
Saugus-Notice-Letter.pdf [https://penna.cc/V5AA-MQUC] (providing notice to Wheelabrator of the
intended action by the Conservation Law Foundation for violations of the RCRA). The claims
brought by CLF relate to violations of RCRA arising from failure to monitor groundwater for con-
tamination, creating risks of toxins leaching into the ecosystem. See id See generally 40 C.F.R. § 258
(laying out the regulatory requirements for operation of an MSW landfill). The Saugus landfill has
been operating since well before the construction requirements imposed by the regulations associated
with RCRA, and thus demonstrates a way a landfill may operate without the protections of current
law. See 40 U.S.C. §§ 6907, 6912 (2018) (providing the authority for the EPA to promulgate rules
and issue guidelines to carry out the statutory purpose of RCRA); 57 Fed. Reg. 28628 (June 26,
1992) (demonstrating that the EPA provided notice in the year 1992 for the rulemaking that would be
codified at C.F.R. § 258.40); Greta Jochem, An IncineratorDivides a Town Near Boston, CITYLAB
(Feb. 1, 2018), https://www.citylab.com/enviromnent/2018/02/an-incinerator-divides-a-town-near-
boston/552053/ [https://penna.cc/L98F-MVDT?type=image] (stating that the Saugus Incinerator
began operation in the 1970s).
167 See WASTE OF ENERGY, supra note 6, at 13 (declaring that, due to the presence of non-

renewable materials in biomass waste, WTE is not a sustainable practice).

168 Id. (using the example of plastic packaging that may be thrown out, which is derived from

fossil fuel-based petroleum).

169 See id at 11 (arguing that, because plastics and paper burn more efficiently, true organic
materials are made up of higher percentages of water).
170 Id
408 Boston College Law Review [Vol. 60:387

facilities have little incentive to sort out best fuel sources, and indeed are
more likely to sort other materials, while leaving plastics in.' 7 ' Thus, WTE
only appears to be sustainable, when in actuality, the fuel source, trash, is
made up of numerous nonrenewable components. 172
This is exacerbated by the fact that many incinerators have contracts,
which creates a demand for waste. 173 The contracts create a relationship
where a municipality either supplies enough waste to keep the incinerator
profitable, or the municipality pays money to make up the loss.' 7 4 The other
arm of this relationship is between the incinerator and the bank.' 7 ' The cost of
building and operating a WTE facility means that it can never downscale op-
erations as long as it needs to pay off loans. 76 In 2009, in Lake County, Flor-
ida, a predictable conflict arose under these circumstances. 77 The city was
not producing enough trash due to the economic crash hurting the local tour-
ism industry, and the city made the choice to stop encouraging recycling in an
effort to avoid spending millions supporting the incinerator contract. 7 8
Additionally, it is probable that WTE would not have thrived without
government subsidies because WTE power production is costly. 179 A 2011
report by the Energy Information Administration stated that the cost of having
a hauling company bring its waste to a WTE facility was about fifty percent
more expensive than simply taking it to a landfill.'so The report goes on to
claim that the WTE incineration process itself is ultimately more costly than

171 See id. (discussing the financial structure of a WTE facility).

172 See id. at 13 (stating that trash tends to be made up of non-renewable products like plas-
tics, and thus burning trash cannot be considered renewable energy).
173 Id. at 11 (observing that many WTE facilities have decade
long contracts with municipali-
ties to produce the waste-fuel for the incinerator).
174 Id. (describing these contracts as "put or pay," a process whereby
the community must
financially compensate the waste company if it does not generate an agreed upon tonnage, result-
ing in the waste company losing earning).
175 Id. at
12.
176 See id. (describing that the operation demands fuel to make
money, rather than burn based
on the rate of fuel being brought in).
177 Id
178 Id.
179 See id. at 5-8 (describing the numerous economic issues that WTE raises). In
broad terms,
WTE is not economically viable, especially when compared to a system built around recycling
and composting. See id. (analyzing the costs of operating a biomass facility). WTE facilities are a
major investment up front and have many secondary costs related to operation, and thus is the
least efficient way to generate energy relative to its cost. Id. at 6.
180 Id. at 5. The process of having a hauler deliver trash to a facility is called a gate fee or a

tipping fee. Id. The fee to deposit waste in a landfill in 2011 was sixty-one dollars, while at an
incinerator it was ninety-two dollars on average. See id. (charfing the tipping fees for incinerators,
landfills, and composting facilities).
2019] Renewable Energy Policies & Waste-to-Energy Industry 409

alternatives.' 8 Although exact costs vary based on the size of the facility,
some estimates put the operating costs at around $600-$1000 per ton of
waste incinerated, which ranges from around $41 million to $169 million per
year.18 2 In context, it becomes clear that WTE is not an environmentally effi-
cient approach to creating energy.1 8 3

C. A Clean Slate-Changingthe Future ofEnergy Policy

As part of the EPAct of 1992, the legislature articulated a set of goals for
the development of energy conservation technologies focused on increasing
energy security and economic efficiency, while decreasing environmental
harms. 8 4 The growth of WTE technology has undermined this goal. 8 Thus,
Congress must amend its approach to renewable technologies in the future. 8 6
There is an open question as to whether the expiration of federal tax
credits will resolve the problems created by WTE.8 7 Although this does end
funding for MITE, benefits for other renewables fields will also be cut off.'
The legislature must look to the future by reestablishing the credits as they
have before.189 Congress should, however, redefine what types of energy
technologies are eligible for credits, based upon recent studies on the social
and economic consequences of WITE power.1 90 Congress should allow credits

181 Id. at 7. The initial investment costs were significantly higher for WTE than for conven-
tional natural gas, wind, conventional coal, photovoltaic, nuclear, and coal with carbon capture.
See id.
182 Cost of Incineration Plant, WASTE TO ENERGY INT'L (Sept. 14, 2015), https://wte
international.com/cost-of-incineration-plant/ [https://penna.cc/2U9D-R8Y5] (calculating the pos-
sible costs for small to medium sized facilities). Waste to Energy International states that operat-
ing a WTE facility is expensive and there is no way around it. Id.
183 See Paul Connett, Why Incineration Is a Very Bad Idea in the Twenty First Century,
GLOB. ALL. FOR INCINERATOR ALTS. (2010), http://www.no-burn.org/why-incineration-is-a-very-
bad-idea-in-the-twenty-first-century/ [https://perna.cc/58AK-X38E] (arguing that there are very
reasonable alternatives to incineration). San Francisco, despite its large population, has successful-
ly implemented a strategy that is diverting 72% of its waste, with an eye to reaching 75% in 2020.
Id.
184 See 42 U.S.C. § 13401 (2018) (articulating the policy goals the United States should strive

for in researching and developing conservation technologies).

15 See WASTE OF ENERGY, supra note 6, at 8, 13 (arguing that WTE is not environmentally
sustainable or economically sound).
186 See I.R.C. § 45(d)(7) (2018) (demonstrating that under the current regime, WTE can still
enjoy ten years of benefits if the facility began construction after January 1, 2018).
187 See id. §§ 45(b)(5) (providing that the PTC only remains available for new wind facilities
past 2018, and that it has expired for all other technologies), 48(a)(5) (stating that the ITC is no
longer eligible for any WTE facility seeking to claim the credit after January 1, 2018).
"s Id. § 45(d)(7).
189 See Duffield & Collins, supra note 68, at 10 (stating that federal incentives for renewable
energy have expired and been renewed in the past).
190 See I.R.C. § 45 (detailing the different types of energy that have been eligible to receive
the PTC); WASTE OF ENERGY, supra note 6, at 8, 13 (presenting research suggesting that WTE
has adverse environmental and economic effects).
410 Boston College Law Review [Vol. 60:387

only for energy types that have minimal negative environmental impact, and
in the very least, exclude WTE.' 9

'
Congress should also consider following the lead of the states and adopt
a federal RPS.1 9 2 The legislature drafted such a bill in the past, the American
Clean Energy and Securities Act ("ACESA"), but ultimately the bill did not
pass.1 9 3 Congress ought to reconsider that choice.1 9 4 The ACESA looks sub-
stantially similar to the Pennsylvania RPS.' 95 Specifically, it mandated that
energy be derived from renewable sources and did not merely rely on an in-
centive system.1 96 It also employed a two tier system. 197 This could be used to
prevent an energy supplier from relying completely on WTE as the renewable
resource. 198 One noticeable way in which the failed bill surpassed the current
Pennsylvania statute was that landfill gas would be categorized alongside
WTE.199 Congress could go further, however, and develop a system whereby
WTE is completely phased out over a number of years.200 In the extreme,
Congress could simply develop a new proposed federal RPS to focus only on
green technologies. 20
'

191 See GUIDE TO PURCHASING GREEN POWER, supra note 28, at 2-3 (demonstrating that

federal agencies have issued guidance instructing and encouraging the use of green technologies).
192 See 73 PA. STAT. & CONS. STAT. ANN. § 1648.3 (West 2007)
(demonstrating a mandate
based RPS standard, which requires the state to acquire a certain amount of energy from renewa-
ble sources).
193 American Clean Energy and Security Act ("ACESA"), H.R. 2454, 111th Cong. (2009).
The American Clean Energy and Security Act required that energy retailers acquire at least 20%
of their electricity from renewable source by 2020. Id.
194 See id.
195 See id. (revealing that the proposed American Clean Energy and Security Act is very simi-
lar to the current Pennsylvania RPS). Like the Pennsylvania statue, the ACESA places energy
resources into two categories, with wind, solar, and geothermal energy, among others, into one
category and WTE into a separate category. See id.; 73 PA. STAT. & CONS. STAT. ANN. § 1648.3
(demonstrating that ACESA distinguished between "qualifying energy resources" and "renewable
energy sources" in much the same way the Pennsylvania statute separates tier I and tier II sources
of renewable energy).
196 See H.R. 2454, 111th Cong. (proposing a plan to gradually grow from requiring 6% of
energy to be acquired from a renewable source in 2012 to 20% in 2020).
197 id

198 See 73 PA. STAT. & CONS. STAT. ANN. § 1648.3 (requiring that energy be derived from
both tiers of renewable resources).
199 Compare H.R. 2454, 111th Cong. (categorizing landfill gas as a "qualifying energy re-

source" along with WTE, instead of a "renewable energy resource"), with 73 PA. STAT. & CONS.
STAT. ANN. § 1648.3 (defining landfill gas as a subset of biomass, under Tier I).
200 See I.R.C. § 45 (giving an example of a statute where a
type of technology, in this case
wind, is gradually phased out without immediately terminating the credit).
201 See GUIDE TO PURCHASING GREEN POWER, supra note 28,
at 2-3 (acknowledging that
green energy use is currently voluntary).
2019] Renewable Energy Policies & Waste-to-Energy Industry 411

There is significant room at the state level to dictate future renewable

energy policy as well. 202 Twenty-nine states already have some form of an
RPS, and more have renewable energy goals. 203 Not all states, however, treat
WTE the same under RPS laws. 2 04 It is crucial to long term energy sustaina-
bility that the remaining states adopt mandatory RPS laws.205 States too could
follow Pennsylvania's model. 206 Again, states should consider limiting or
even blocking WTE from being considered a valid source of energy for the
purposes of an RPS. 207 Although it can be argued that this would be unfairly
harsh for the WTE industry, it can also be argued that the industry would not
have even existed without leeching benefits from other renewables, making
this a course correction. 2 08 Finally, it seems that having lower benefits, such
as being allowed on half the entire PTC credit, did not prevent WTE from
thriving historically, and therefore any regime that does not completely elimi-
nate benefits to WTE will not truly dissuade its use. 2 09

CONCLUSION

Energy policy in the last fifty years in the United States has seen mas-
sive strides. While the previous century was mostly focused on ensuring the
country had enough oil to power through world wars, the 1970s marked a
major shift, wherein lawmakers began to seek alternative fuel sources. This
was at first spurred by concerns about energy security, but toward the start of
the 2000s, laws began to reflect growing concerns of waste, sustainability,
and environmental harm. To those ends, the federal and state governments

202 See State Renewable Portfolio Standards and Goals, NAT'L CONFERENCE OF STATE LEGIS-
LATURES (2017), http://www.ncsl.org/research/energy/renewable-portfolio-standards.aspx [https://
penna.cc/BVP3-MFLP] (describing the increase in states adopting RPSs).
203 Id. Iowa established the first RPS in the United States in 1983. Id. Hawaii has the most

robust RPS, with the goal of 30% of energy coming from renewables in 2020, and 100% by 2024.
Id.
204 SAMANTHA DONALDS, CLEAN ENERGY STATES ALL., RENEWABLE THERMAL IN STATE
RENEWABLE PORTFOLIO STANDARDS 5 (2015), https://www.cesa.org/assets/Uploads/Renewable-
Thennal-in-State-RPS-April-2015.pdf [https://perma.cc/5JYK-4GX3] (comparing the RPS laws
across the United States that include thermal energy). Thermal power can take several forms, and
here, is categorized as solar thermal, biomass, and geothermal technology. Id. In 2015, Arizona,
Indiana, Massachusetts, Maryland, New Hampshire, Texas, and Wisconsin included all three of these
types of thermal in their RPS. Id.
205 See Renewable Portfolio Standards, supra note 25 (lauding Pennsylvania's early adoption

of a robust, clean focused RPS).

206 See id. (examining the shortcomings of relying solely on market forces to drive green

solutions, even when it is trendy to be "green").

207 See 73 PA. STAT. & CONS. STAT. ANN. § 1648.3 (categorizing MSW as a Tier II source of

energy).
208 See WASTE OF ENERGY, supra note 6, at 2 (positing that the PTC effectively created to the

WTE industry).
209 See id
412 Boston College Law Review [Vol. 60:387

implemented incentives through the tax code and mandates, using both stick
and carrot approaches to meet new energy needs.
WTE, however, was also able to benefit by those policies. Because WTE
superficially appears to be renewable, it was able to become a thriving indus-
try by taking government subsidies that should have been reserved for wind,
solar, and geothermal energy. Thus this "dirty" industry has continued to ben-
efit under federal and state programs, while they simultaneously expelling
persistent, bioaccumulative toxins into the environment.
Energy and environmental policies thus actively undermined many of
the goals they were written to achieve, most specifically energy and environ-
mental sustainability. Times are changing, however, and there is a movement
in the United States away from these polluting renewables. Federal and state
governments should continue to promote renewable technologies. They
should, however, take steps to ensure the WTE does not continue to enjoy
benefits at the expense of truly clean renewable technology.
HALE MCANULTY