ENVIRONMENTAL LAW & POLICY eJOURNAL
"Public Utility and the Low Carbon Future"
UCLA Law Review, Vol. 61, No. 1614, 2014
U of Colorado Law Legal Studies Research Paper No. 14-5
WILLIAM BOYD, University of Colorado Law School
Substantial reductions in global power sector emissions will be needed by midcentury to avoid significant disruption of the climate system. Achieving these reductions will require greatly increased levels of financing, technological innovation, and policy reform. In the United States, the scale and complexity of the overall challenge have raised important questions regarding prevailing regulatory and business models, with much scrutiny directed at the traditional practice of public utility regulation. Recognizing the many valid criticisms leveled against public utility regulation and the important questions raised about the viability of traditional utility business models, particularly in the face of substantial growth in distributed energy resources, this Article argues that a revitalized and expanded notion of public utility has a critical role to play in efforts to decarbonize the power sector in the United States. In making this argument, the Article looks back to an earlier, more expansive concept of public utility as articulated by Progressives, legal realists, and institutional economists in the early twentieth century. This earlier concept of public utility contains valuable insights for dealing with the current challenges of decarbonization. The Article shows how this broader concept of public utility was substantially diminished by a confluence of external challenges and a sustained intellectual assault mounted by economists and lawyers starting in the 1960s. The narrowed understanding of public utility that resulted, it is argued, has distorted our views regarding the role of markets and disruptive technologies in the sector. In fact, basic public utility principles continue to govern a significant amount of activity across the power sector, including in both wholesale and retail electricity markets. And there are important unrealized possibilities embedded within the public utility concept that hold considerable promise for reforming current regulatory and business models in the face of rapid technological change and growing decarbonization imperatives. Such principles and possibilities are particularly important in ongoing efforts to increase renewable energy and finance large low-carbon generation projects. They also hold great promise for ongoing efforts to plan for and optimize the integration of increasingly large amounts of distributed energy resources such as rooftop solar, demand response, and energy storage. Indeed, when one looks at the overall scale, complexity, and sequencing of investments needed to decarbonize the power sector over the coming decades (however it comes to be organized), it is clear that the broad concept of public utility offers essential tools for planning and coordinating such investments over the long time horizons contemplated and for managing a system of increasing complexity. In all of these areas, a more expansive notion of public utility that draws from earlier understandings of the concept provides a normative foundation for efforts to govern a power system that is increasingly complex, participatory, and intelligent, and for managing the sustained, collective effort to channel investment and behavior in a manner necessary to realize a low-carbon future.
"Does the Endowment Effect Justify Legal Intervention? The Debiasing Effect of Institutions"
NYU School of Law, Public Law Research Paper No. 14-36
NYU Law and Economics Research Paper No. 14-18
JENNIFER ARLEN, New York University School of Law
STEPHAN W. TONTRUP, Max Planck Institute for Research on Collective Goods
We claim that the endowment effect rarely justifies legal intervention in private ordering. To our knowledge, we present the first theory to explain how institutions inhibit the endowment effect without altering people’s rights to their entitlements. The endowment effect is substantially caused by anticipated regret. We show that people experience regret only when they feel responsible for the decision and can mute regret by trading through institutions that let them share responsibility with others. As entitlement-holders typically transact through institutions, we expect most people to make unbiased trading decisions in real markets. We test two common institutions — agency and voting — that divide responsibility between multiple actors. Each caused most subjects to debias and trade in our study. We also show that people intentionally debias by employing institutions in order to share responsibility. Thus, when people can freely transact, private ordering generally overcomes the endowment effect.
"Wilderness and Culture"
Environmental Law, Fall 2014, Forthcoming
ERIC T. FREYFOGLE, University of Illinois College of Law
The term wilderness is one the more mischievous, elusive, and conflict-laden words in the English language. The ways we think and talk about wilderness are well embedded in modern culture and the debates surrounding it have as much to do with meaning, values, and human perceptions as they do with the ever-changing physical world itself. This essay explores the complex ways that wilderness and contemporary culture are linked. Its central claim is that the cultural clashes surrounding wilderness arise out of and reflect, not just larger cultural currents, but fundamental confusions or deficiencies in the ways we comprehend the world and our place in it. They reflect deficiencies in the ways we think about ourselves as distinct beings, in our understandings of normative values and their origins and legitimacy, and in the limits nature imposes on our modes of living. These intellectual shortcomings play key causal roles in our ongoing patterns of misusing the natural order. They also help explain why we struggle so much to see the errors in our ways and to improve them, even when we have the facts and technology to do better. Once we see wilderness clearly, separating physical reality from the human-constructed, we can gain a better sense of our ecological plight. We can also see better how wilderness areas can benefit us, not just by supporting the health of landscapes, but by providing places and opportunities to stimulate much-needed cultural change.
"Deadline Citizen Suits: An Idea Whose Time Has Expired"
Appalachian Natural Resources Law Journal, Vol. 8, p. 51, 2013-2014
WILLIAM M YEATMAN, Competitive Enterprise Institute
Two statutory devices -- deadlines and agency-forcing suits -- were introduced in the Clean Air Act of 1970 in order to mitigate a perceived problem of agency capture and its corollary, nonparticipation by the public in the regulatory proceedings. Yet the Congress, for reasons inherent to the psychology of legislating, established too many deadlines. The paradoxical consequence of the Congress gorging on date-certain duties is that these two legislative mechanisms currently are achieving the opposite of what they were intended to do. Instead of warding off special interest capture, they've engendered capture by different special interests. And instead of eliciting participation, they've inhibited public input into EPA's setting of priorities. In order to alleviate these inimical impacts, this paper recommends certain judicial and legislative means.
"Adaptive Management and the Future of Environmental Law"
Akron Law Review, Vol. 46, No. 4, 2013
ERIC BIBER, University of California, Berkeley - School of Law
Adaptive management is the new paradigm in environmental law. It is omnipresent in scholarship and management documents and is even starting to appear in court opinions. There have been many calls for environmental law to adapt itself to adaptive management by becoming more flexible and dynamic. But does adaptive management really warrant a revolution in environmental law? Or is it adaptive management that might need to adapt to the world of environmental law? There has been an abundance of scholarship on the strengths of adaptive management, making the case for changing environmental law to embrace adaptive management. But answering the two questions above also requires a close examination of the limits of adaptive management and whether it is important enough for environmental law that wholesale changes in the legal structure are required. In this Article, I summarize the literature noting those limits, and my conclusion is that those limits are significant enough that we should be wary of wholesale revisions of environmental law to allow adaptive management to occur. Adaptive management has an important role to play, but there are many questions that it cannot answer. Moreover, the increased flexibility and dynamism that have been called for in environmental law would carry their own costs.
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