83 Pages Posted: 30 Apr 2016 Last revised: 14 Jun 2017
Date Written: April 12, 2016
Many scholars and policy makers celebrate cities as loci for addressing climate change. In addition to being significant sources of carbon pollution, cities prove to be dynamic sites of experimentation and ambition on climate policy. However, as U.S. cities set climate change goals far above those of their federal and state coun- terparts, they are butting up against the limits of their existing legal authority, most notably with regard to control over energy supplies. In response, many U.S. cities are exercising their legal rights to reclaim public ownership or control over private electric utilities as a method of achieving their climate change goals.
Although there is widespread desire for cities to act within their legal authority to reduce carbon pollution, it is a different question entirely whether they should be encouraged to expand this authority by reclaiming ownership or control over tasks previously outsourced to private companies. On this question, energy law has much to learn from administrative law’s robust attention to outsourcing theory. This Article draws from the outsourcing literature to argue that climate change compli- cates traditional theories regarding whether cities should prefer publicly or privately owned electricity systems. By transposing these theories into energy law, it con- structs a theoretical defense of why more public forms of energy ownership or con- trol may be effective governance tools for the climate change era. In the last century, providing electricity was a task well suited to government oversight of pri- vate companies, as regulators primarily aimed to incentivize low prices and ade- quate supply. This century, however, climate change creates the need for more deliberative, experimental management of electricity to meet the additional aim of decarbonization while maintaining affordability and reliability. In this situation, outsourcing theory widely counsels against utilizing a private contractor model, and illustrates the difficulties inherent in using regulation to manage private compa- nies. Instead, it is time for broader reconsideration of more public forms of energy control and ownership, of just the sort that leading U.S. cities are pioneering.
Keywords: municipalization, community choice aggregation, outsourcing, contracting out, local energy, climate change
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