Dissertation/Thesis Abstract

Climate Change and the Reshaping of U.S. Energy Law
by Welton, Shelley Holliday, Ph.D., Yale University, 2017, 265; 10633268
Abstract (Summary)

This dissertation analyzes how institutions governing energy in the United States are coping with the substantive and governance challenges wrought by climate change. Mitigating climate change requires the "decarbonization" of energy—that is, the elimination of carbon pollution from the energy sector. Decarbonization is often conceived of as a technical challenge, but its implications are profound: In the coming decades, decisions made in the field of energy law will fundamentally reshape U.S. society by determining the constraints we place upon growth and how we power our economy and society. The essays in this dissertation shed light on how energy law implicates not only infrastructure and investment but also distributive justice, political participation, accountability, and democratic legitimacy. At the same time, these essays seek to identify modes and models of governance capable of responding effectively to these challenges that climate change highlights for the field of energy law.

The first essay in this dissertation, Clean Electrification, examines the movement in many states towards the creation of a "participatory" grid. In this new model, electricity is priced based on time of consumption and carbon content, and consumers are encouraged to adjust their behavior and adopt new technologies to maintain affordable electricity. Although a participatory grid is an important component of lowering greenhouse gas emissions, it also raises a new problem of clean energy justice: utilities and consumer advocates claim that such policies unjustly benefit the rich at the expense of the poor, given the type of consumer best able to participate in the grid. This essay affirms the validity of these equity concerns, but asserts that these arguments fail to seriously engage the question of how energy law's historical equity nouns should be interpreted and applied in the era of climate change. Fortunately, there is a longstanding tradition of attention to equity concerns within electricity law that offers a principled way forward. This essay traces how electricity law, throughout the twentieth-century project of electrification, focused on expanding the range of Americans able to access affordable electricity. Twenty-first century regulators, in contrast, plan to require consumers to participate in the grid in order to maintain affordable power. This vision requires a new instantiation of electricity law's long-standing equity commitment: a project of "clean electrification," which seeks to expand participation in emerging clean energy marketplaces to all Americans.

The second essay in this dissertation, Public Energy, explores the recent movement of several U.S. cities towards reclaiming public control over their electricity grids as a way to combat climate change. This essay draws from the literature on "contracting out" government to argue that climate change complicates traditional theories regarding whether cities should prefer publicly or privately owned electricity systems. By transposing these theories into energy law, the esssay constructs a theoretical defense of why more public forms of energy ownership or control may be effective governance tools for the climate change era. Climate change creates the need for more deliberative, experimental management of electricity to meet the aim of decarbonization while maintaining affordability and reliability. In this situation, outsourcing theory counsels against a private contractor model, and illustrates the difficulties inherent in using regulation to manage private companies. Instead, the essay asserts, more public forms of energy control and ownership may enhance accountability and flexibility in directions that are particularly important in confronting climate change.

The final essay, Grasping for Energy Democracy, examines several competing notions of how energy law might be made more "democratic." Much as climate change raises difficult issues of equity and accountability within energy law, its potential for energy and societal transformation also creates a thirst for citizen participation in what have long been largely technocratic, bureaucratic proceedings. However, exactly how the "democratization" of energy law might proceed remains unclear. Indeed, the term "energy democracy" has taken on significantly different—and frequently conflicting—meanings in debates over energy law reform. This essay argues that the lack of clarity over the meaning of "energy democracy" presents a troubling hurdle to the burgeoning project of democratizing energy law, as different conceptions of the term demand divergent legal reforms. To advance discussions of democratizing energy, the essay links the rhetoric of energy democracy to concrete proposals for reform in the field. It concludes with a note of caution about too swiftly embracing consumer-driven or locally-focused models of energy democracy, as each poses a substantial risk of diminishing existing participatory processes within energy law without replacing them with anything better.

Indexing (document details)
Advisor: Kysar, Douglas A.
School: Yale University
School Location: United States -- Connecticut
Source: DAI-A 78/11(E), Dissertation Abstracts International
Subjects: Law, Environmental Law, Energy
Keywords: Climate Change, Electricity, Energy Law, Environmental Justice, Municipalization, Public Utilities
Publication Number: 10633268
ISBN: 978-0-355-10560-5
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