Ezra Rosser

Uma Outka’s article, Energy Law and the Low-Income Household (forthcoming in Environmental Law), convincingly argues that the affordability challenges related to energy facing poor households should not be treated as external to the field of energy law. As Professor Outka shows, it is tempting to treat the problems faced by low-income households—high energy cost burdens, poor insulation, and vulnerability to service cutoffs—as exogenous to energy law. By sidelining such concerns as matters of poverty law, those within the energy sector, as well as academics working within energy law, can ignore the precariousness of low-income households and neglect the need for innovation and support within the field. Professor Outka succeeds in contributing to the conversation in both the energy law and poverty law spaces by presenting an in-depth history of the principal government program, the Low-Income Home Energy Assistance Program (LIHEAP), supporting the needs of low-income households, and by carefully connecting the poverty and energy law fields.

The article begins with a rich history of the LIHEAP program and then expands slightly to include the Low-Income Weatherization Assistance Program (WAP). This history will be new to many in the poverty law field since energy policy, even programs that help low-income households, is beyond the scope of most work in the field. Yet, as Professor Outka notes, access to reliable energy is often crucial for basic survival in summer or in winter. Inability to pay can leave poor households extremely vulnerable to loss of service. Even when such households can pay their energy bills—Professor Outka highlights research showing that need for money to pay utilities is the number one reason low-income households turn to payday lending—high energy costs relative to income can threaten such households’ other basic needs. The history that Professor Outka includes is presented at just the right level of detail; readers come away understanding how the LIHEAP and WAP programs work as well as the politics shaping their creation and evolution.

One of the norms of legal scholarship that can be frustrating is that it is not enough to give a good history. Though a complete description of an area of study—and Professor Outka’s article has that, the footnotes offer a great leaping off point for anyone interested in delving deeper into the political currents of these programs—would be enough in many fields, in legal scholarship the expectation is that articles will be both positive and normative. Fortunately, Professor Outka’s article delivers here too, on top of her comprehensive coverage of programs that support low-income households, the prescription she advocates for, the incorporation of the energy needs of the poor into energy law.

Just as some law-and-economics scholars have strived to define the problems of poverty as outside the bounds of ordinary legal debate, as matters that should be dealt with solely through tax-and-transfer programs, so too it is common, according to Professor Outka, for energy law works to push aside affordability concerns by declaring them matters of “poverty law.” This all-too-easy out, Professor Outka argues, is neither fair nor appropriate for the energy field. The article ends with examples highlighting ways in which deliberately incorporating the concerns and needs of low-income households into energy policy can lead to better outcomes and make the benefits of energy more secure to all households.

Professor Outka’s primary goal is to bring the needs of low-income households, and the programs that serve them, out from the cold by showing how they are fundamental to the larger energy law field. The article succeeds in that goal, but it also does the inverse, showing poverty law scholars the importance of not neglecting these programs and of elevating the place that energy policy has in our understanding of the challenges facing low-income households.