Hybrid Energy Governance
Hari M. Osofsky
University of Minnesota - Twin Cities - School of Law
Hannah Jacobs Wiseman
Florida State University - College of Law
February 13, 2013
University of Illinois Law Review, Forthcoming
FSU College of Law, Public Law Research Paper No. 608
Minnesota Legal Studies Research Paper No. 12-49
This Article develops a novel theory of energy governance and uses it to assess how institutional innovation can help meet critical challenges. Energy law is substantively complex and deeply fragmented. Each energy sector - including fuel extraction and pipelines, electricity generation and transmission, and transportation - has its own legal regime and federalism approach; confusion often exists at moments of crisis about how much authority federal, state, and local regulators have in these areas. The complexity and fragmentation of energy law are particularly problematic because the energy system faces major transitions due to emerging technology, more unpredictable and extreme weather events, and public pressure for 'cleaner' energy. Regulators struggle to: manage the risks of hydraulic fracturing and deepwater drilling, upgrade our aging electricity grid, and integrate renewable energy sources onto that grid and into electricity markets.
Building from our prior work arguing for a dynamic, comprehensive approach to federalism in energy law, this Article proposes a governance model to address modern energy challenges. The Article focuses on the potential of institutions that are 'hybrid' by virtue of including public and private actors from several governance levels, and enabling important interactions among them. Grounding its approach in interdisciplinary governance theory, it argues that these institutions have characteristics that could address structural barriers - such as inadequate, divided regulatory authority, and the complexities of including key private actors in energy decision making - to substantive progress. After introducing its new conceptual model, the Article examines several hybrid institutions with substantial regional components that are working to address the three core substantive energy challenges identified here. It analyzes their progress in meeting these challenges, and how their hybrid governance approach is assisting them in doing so.
Number of Pages in PDF File: 69
Keywords: energy, federalism, governance, regional, hybrid, deepwater drilling, hydraulic fracturing, electricity, smart grid, reliability, renewable energy, renewables, grid, oil, natural gas, oil spill, NERC, RTO, legal pluralism, new governance, geography
Date posted: September 17, 2012 ; Last revised: June 12, 2013