Agency Genesis and the Energy Transition

78 Pages Posted: 6 Nov 2020 Last revised: 20 Nov 2020

See all articles by Sharon Jacobs

Sharon Jacobs

University of Colorado Law School

Date Written: August 17, 2020


Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. But agency genesis as a phenomenon has not been explored in any detail in the legal literature. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.

This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. Setting up rivalries within the executive branch by creating additional agencies can be an effective tool for mitigating executive power. This is also vital in the states, which have experienced a documented expansion of gubernatorial power. Productive friction between state agencies can stem executive overreach, provide more points of access for the public, and improve the quality of agency decisionmaking.

State energy policy offers a compelling context in which to explore agency genesis and the administrative separation of powers. Energy agency creation in state government is a story of addition, beginning with public utility commissions in the early 1900s and culminating in the contemporary creation of new boards and bodies to manage the transition to a just, low-carbon energy economy. Drawing on the political science and public administration literatures, this Article explains the observed patterns of energy agency creation and analyzes their effects on state energy governance. It offers prescriptions for managing multiple agencies in the same policy domain. And it cautions that the allure of agency genesis should not preclude reform of existing institutions.

Suggested Citation

Jacobs, Sharon, Agency Genesis and the Energy Transition (August 17, 2020). Forthcoming in Columbia Law Review (2021), U of Colorado Law Legal Studies Research Paper No. 20-50, Available at SSRN:

Sharon Jacobs (Contact Author)

University of Colorado Law School ( email )

401 UCB
Wolf Law Building
Boulder, CO 80309
United States

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