Tag Archives: Energy Law
Sep 26, 2025 Felix MormannEnergy Law
It is all but impossible for government to adopt industrial policies and regulations without creating winners and losers. The Obama administration’s support, for example, turned Tesla, SolarCity, and other cleantech ventures into regulatory winners, while its “war on coal” relegated fossil fuel companies to regulatory losers. The first Trump administration sought to reverse this trend by dialing back clean energy policies and using emergency powers to prop up the nation’s ailing coal industry. And the regulatory pendulum has continued swinging back and forth during the Biden presidency and under Trump 2.0. When changes in policy and regulation interfere with corporate interests, regulatory losers are quick to call foul and demand compensation for their regulatory burdens. But what about those who find themselves on the losing end not by virtue of regulatory activism and change but, rather, due to a persistent lack of regulation? In his excellent new article, Compensating Regulatory Losers, professor Todd Aagaard asks this provocative question and develops thoughtful answers drawing on case studies from climate and energy regulation, among others.
A robust literature grapples with the question of whether and when regulatory losers deserve to be compensated. Some have attempted to frame and answer this question based on the welfare impacts of regulation, while others have turned to (other) notions of fairness in search of answers. Some scholars advocate for replacing regulation-specific compensation with more comprehensive redistribution programs carried out via income taxes. Libertarian entitlement theorists, meanwhile, argue that regulatory losers should be compensated when their reliance expectations are thwarted by changes in regulation. And if fairness arguments do not sway you, leave it to economists to reframe the debate along Pareto and Kaldor-Hicks efficiency metrics.
In Compensating Regulatory Losers, professor Aagaard thoughtfully engages with the major strands of the compensation literature, offering a tailored critique to each of them. In response to calls for comprehensive redistribution in lieu of compensation, for example, Aagaard reminds readers that “[r]egulatory fairness is not a fungible concept that can be aggregated across all policies and delegated to the tax system. To the contrary, the fairness of regulatory outcomes depends on the context in which they arise.” (P. 578.) Similarly, he critiques entitlement and reliance arguments as circular because “[c]hanges in regulation create reliance interests only to the extent that regulatory changes should be treated as unforeseeable, which in a democracy they are inherently not.” (P. 579.) Aagaard’s biggest gripe, however, is with the status quo bias that he finds pervasive throughout the compensation literature: “None of these approaches provides a framework for addressing injustice in the status quo, despite a history that is replete with unfairness.” (P. 583.)
To remedy this oversight, Compensating Regulatory Losers proposes a two-pronged approach. The first prong expands the field of inquiry beyond the consequences of regulatory activism and change to also include “unregulatory consequences” defined as “regulatory outcomes that result from the extent to which regulation does not completely prevent the regulated harm—that is, benefits and burdens as measured against a baseline of completely effective regulation.” (P. 585.) Aagaard convincingly argues that virtually all regulatory measures simultaneously create regulatory consequences (e.g., the compliance burden imposed on the regulated entity) and unregulatory consequences (e.g., the burden suffered by allegedly protected parties from residual harms not mitigated by the regulation). Drawing on evidence from the Clean Air Act, the Occupational Safety and Health Act, and the Consumer Products Safety Commission, the article illustrates the prevalence and magnitude of such unregulatory consequences, juxtaposing the positive impact of these policies and regulations with continuing fatalities from persistent air pollution, unsafe workplaces and consumer products. The dual effect of regulation – regulating some firms, behaviors, and/or harms while leaving others unregulated – leads Aagaard to conclude that “[a]ny even-handed consideration of the consequences of regulation, therefore, must include both regulatory and unregulatory benefits and burdens.” (P. 590.)
Professor Aagaard is no compensation hawk. If anything, he cautions against rushing to compensate for regulatory losses, especially when those losses might be offset by unregulatory benefits, such as when regulation prohibits certain behavior and mitigates a certain type of harm but leaves other behaviors and harms unabated. Furthermore, there is an intertemporal dimension to consider. In the author’s words, “[t]oday’s regulatory burdens are yesterday’s unregulatory benefits.” (P. 595.) Put differently, why should a manufacturer of children’s toys be compensated for regulation banning the use of toxic substances in toys without also considering compensation for children and their families for their previous unregulatory burden (when toys were still permitted to contain the now-banned toxic substances)?
The second prong of professor Aagaard’s approach relies on the principles of distributive fairness and corrective fairness to answer this pivotal question. The article’s conception of distributive fairness “requires mitigating regulatory impacts that exacerbate existing entrenched systemic inequalities” (P. 598) as opposed to regulatory losses perceived as unfair by a few regulatory targets compared to their status quo before the regulation. Aagard acknowledges but is untroubled by the fact that, under this conception, “the circumstances in which distributive justice requires compensating regulatory burdens ought to be quite rare.” (P. 597.) In fact, he crafts a similar argument on the basis of corrective justice; in his view the premise of corrective justice to restore equilibrium after an alleged wrongdoer’s conduct is nearly impossible to apply to regulatory intervention as no such prior equilibrium exists when the “victim” of regulation was previously allowed to harm and thus victimize others. All of this leads the author to conclude that “the vast majority of regulatory burdens are not unfair in a way that requires compensation.” (P. 607.)
I highly recommend Compensating Regulatory Losers is an immensely entertaining and thought-provoking tour de force through the complex and conflicting compensation literature. Professor Aagaard’s introduction of the concept of unregulatory consequences into the conversation may ultimately raise more questions than he can answer (for now). But isn’t that the mark of truly transformative thinking and scholarship?
Feb 15, 2024 Felix MormannEnergy Law
Electricity is the lifeblood of America. Automotive manufacturing in Detroit, server farms in Silicon Valley, the heating and cooling of our homes, and the charging of our smart devices all depend on the availability of affordable and reliable electric service. Electricity, in other words, is as vital to our economy and lifestyle as the air we breathe is to our survival. At the same time, the way we generate, transmit, and use electric power directly impacts, often adversely so, the quality of our air and water, exacerbates global climate change, and causes deadly wildfires, among other societal impacts. Given the complexity of the electric grid and its many interactions with social welfare and the public interest, one might expect Public Utility Commissions (PUCs) to provide comprehensive oversight to address and regulate these interactions. Most do not.
In his excellent new article, Precautionary Ratemaking, professor Jonas Monast makes a compelling case for PUCs to become more proactive regulators of the wide-ranging risks associated with electric utilities’ actions. The article urges utility commissioners to interpret their regulatory mandate beyond the traditional confines of economic regulation and least-cost electric service to include risk analysis and management according to the precautionary principle that underpins much of modern environmental law.
The “economic and political balancing act” (P. 530.) of ratemaking goes back more than a century, to the early days of electrification. To promote the build-out of electric infrastructure, state policymakers granted monopoly utilities exclusive service territories. In exchange for this protection against competition, the utility became subject to rate regulation by the state PUC. Electric utilities remained private enterprises, albeit “clothed with a public interest” (Munn v. Illinois, 94 U.S. 113 (1876)). How this notion of public interest should be interpreted lies at the heart of professor Monast’s argument. According to him, most PUCs set utilities’ rates based on the narrowly construed public interest principles of “affordability, reliability, nondiscriminatory access, and financial viability of the utility.” (P. 534.) But, Monast argues, a more expansive interpretation of “public interest” would be more appropriate.
The article presents the 1944 Supreme Court decision in Federal Power Commission v. Hope Natural Gas, 320 U.S. 591 (1944), as the fork in the road where the Court’s majority led the nation’s PUCs astray when it established the “end result” test by which a utility’s rate should be judged. According to Professor Monast, this test “elevates cost minimization as the primary measure of the public interest, often to the detriment of other social considerations.” (P. 536) Yet dissenting opinions by Justices Frankfurter and Jackson demonstrate an understanding of electric utilities as private enterprises meant to serve society, thereby suggesting a broader interpretation of the public interest.
Having established the doctrinal possibility of a more expansive public-interest analysis by PUCs, Professor Monast wastes no time highlighting the necessity of replacing today’s least-cost myopia with a wide-angle lens of risk assessment and management. High-profile incidents like wildfires and coal-ash spills persuasively illustrate the influence of PUC ratemaking, such as approval of coal-fired power plants or insufficient funding for transmission maintenance, on social welfare and the public interest. Beyond this energy-environment disconnect, the author cautions that the prevailing emphasis on least-cost ratemaking is poorly suited to accommodate, let alone facilitate, the electricity sector’s ongoing transformation. From solar panels to electricity storage, most disruptive technologies command a price premium when they first enter the marketplace. When PUCs prioritize near-term costs, they therefore protect the status quo and create path dependencies that are especially hard to break in an industry where an asset’s useful life tends to be measured in decades, not years.
Against this background, Professor Monast proposes a risk-based governance model to help “counterbalance the PUC’s focus on cost and reinvigorate its public interest role.” (P. 559.) A combined “least cost, least risk” approach, the article convincingly argues, would allow regulators to consider a utility decision’s environmental and other social impacts, while also taking into account how that decision affects the utility’s rates. A longer planning horizon and better longitudinal balancing of costs and benefits, meanwhile, would allow PUCs to justify near-term cost increases with future savings, including through mitigation of environmental and other risks.
In a neat doctrinal twist, the article connects the PUCs’ advocated risk governance to the precautionary principle that underpins many modern environmental statutes and is commonly understood to require the exercise of caution in the face of risk and uncertainty. Precautionary ratemaking might even shift the burden of proof for potential harms from opponents of an action, such as a utility’s ratepayers, to the actor proposing the action, in a rate case proceeding most likely the utility.
PUCs are products of our federalist system, with divergent rules and mandates across jurisdictions and commissions. At the extreme ends of the spectrum, a few states have passed laws requiring their PUCs to consider environmental and other social impacts when setting utility rates, while at least one state has expressly prohibited its PUC from considering environmental externalities in its ratemaking process. But the vast majority of PUCs is not subject to express guidance from its state legislature that would stand in the way of adopting Professor Monast’s least cost, least risk framework. And that’s what makes this article so special. Legal scholars love calling for Congressional action to solve the problems they identify, knowing full well that federal legislative action is unlikely to be forthcoming in the vast majority of cases. In contrast, Precautionary Ratemaking leverages in-depth analysis of legal precedent and empirical evidence to make a compelling case that a viable and legally defensible solution to many of the electricity sector’s pervasive problems may already be within our grasp. The risk of including risk management in utility ratemaking, in other words, is lower than most PUCs think.
Oct 28, 2022 Felix MormannEnergy Law
In February of 2021, winter storm Uri wreaked havoc in Texas. Temperatures that would barely raise an eyebrow in the upper Midwest or Northeast caused two in three Texans to lose power, often for days. Water supply systems and other electricity-dependent essential services collapsed in Austin and elsewhere, some taking weeks to come back online. Hundreds died, and the storm’s disruptive impact on the local economy caused billions of dollars in damages. Texas Governor Greg Abbott and other politicians were quick to blame the state’s solar and wind generators for the widespread blackouts. Closer scrutiny, however, soon revealed that outages at fossil-fuel plants, not their renewable counterparts, were the primary cause of cascading blackouts. In fact, local solar and wind generators performed significantly better throughout Uri than the Lone Star State’s natural gas-fired power plants.
In their excellent new article, Grid Reliability Through Clean Energy, professors Alexandra Klass, Joshua Macey, Shelley Welton, and Hannah Wiseman draw on the Texas experience to debunk the common misconception that grid reliability and clean energy are at odds with one another. On the contrary, the authors argue, “the only way to secure a reliable grid under conditions of climate change is to rapidly engage in a clean-energy transition in the electricity sector.” (P. 978.) After all, global warming and other manifestations of our changing climate increase both the frequency and severity of extreme weather events like winter storm Uri. Sure, grid operators could weatherize coal and natural gas-fired power plants as well as their fuel supply to keep them running longer. But to do so would also increase the power sector’s greenhouse gas emissions, exacerbating reliability threats from climate change.
Why, then, does conventional wisdom still posit clean, low-carbon energy and grid reliability as dueling objectives rather than dual benefits of thoughtful climate and energy policy?
Professors Klass, Macey, Welton, and Wiseman convincingly argue that a series of disconnects, or “silos,” within the energy policy domain forestall a better understanding and alignment of reliability and decarbonization goals. Energy policy, they explain, is “siloed along three separate planes: (1) across environmental and reliability goals; (2) among jurisdictions (federal, regional, state, and sometimes local); and (3) along a public–private continuum of actors.” (P. 979.) For too long, the authors argue, policymakers and scholars have focused overwhelmingly on clean energy policy–with little regard for its interaction, and potential synergies, with reliability policy. Grid Reliability Through Clean Energy offers a suite of substantive and structural recommendations to facilitate better coordination and collaboration among previously siloed entities to craft and implement policies that simultaneously advance decarbonization and reliability objectives.
The authors offer four compelling case studies from across the electricity value chain to corroborate their silo theory and to anchor their policy recommendations. The first case study compares different approaches to valuing and integrating an ever-expanding range of energy resources into the nation’s various power markets. Parts of the country actively discriminate against weather-dependent solar and wind generators, while others afford privileged treatment to legacy coal plants, all in the name of grid reliability. Meanwhile, many regional electricity markets fail to accommodate state and federal clean energy policies. To remedy the resulting tensions, the authors call for rethinking the holy grail of “resource adequacy” to incorporate state policies and “prevent reliability goals from operating at cross purposes with clean energy goals.” (P. 1021.)
Next is the expansion of the nation’s electricity transmission infrastructure–a project of massive proportions that promises enormous reliability benefits while enabling greater development of low-carbon generation. Running the necessary wires, however, requires balancing private and public interests across federal, regional, state, and local levels of governance. The authors do an outstanding job of laying out the multitude of competing interests as well as the governance structures that tend to prevent direly-needed progress, from methodological differences in benefits valuation to jurisdictional conflicts to utility exits. The reader can sense the frustration that prompts the authors to concede that, unlike in the other case studies where silos can be maintained, albeit in a more connected line-up, “in this case, the state, regional, and federal silos must actually be broken down, not accommodated.” (P. 1035.)
The third case study hones in on the North American Electric Reliability Corporation (NERC), the private non-profit corporation tasked with regulating the U.S. grid’s reliability under the supervision of the Federal Energy Regulatory Commission (FERC). Returning to winter storm Uri, the authors offer persuasive evidence that NERC’s failure to turn non-binding recommendations into mandatory regulations exacerbates reliability challenges in Texas and beyond. The authors’ triage suggests that this laissez-faire approach is, at least in part, the product of dominating private utility influence within NERC and its balkanized regional subsidiaries. Accordingly, they prescribe remedies including enhanced public-private coordination as well as a more holistic view of reliability that recognizes solar, wind, and other renewables as potential assets rather than liabilities in keeping the lights on.
Regional Transmission Organizations (RTOs) that manage the grid for two-thirds of the country are at the heart of the final case study. While policymakers and scholars gravitate toward regional governance as the ideal scale for grid management, the authors caution that the mode of said management is at least as important as its scale. A range of examples illustrate the bias toward conventional, fossil resources that dominate among the utilities and transmission companies, who, in turn, dominate the membership and governance of RTOs. In the level-headed analysis that distinguishes the article throughout, the authors emphasize that suboptimal grid management by an RTO may still be better than the management practices observed in regions without RTOs. This is but one of many examples of the authors’ sense of realism that informs their ambitious, yet feasible policy recommendations. Would Congressional action be nice? Sure. In its absence, however, there are a number of existing legal authorities that FERC could use to help overcome RTO resource bias and facilitate broader recognition of clean energy’s reliability benefits.
Whether your scholarly interests lie in energy law, administrative law, climate policy, federalism, or anywhere in between, Grid Reliability Through Clean Energy is a must-read. Professors Klass, Macey, Welton, and Wiseman have each, individually, produced plenty of impactful scholarship on (clean) energy policy. With Grid Reliability Through Clean Energy, they have proven that, in the very best collaborations, the end product is, indeed, greater than the sum of its parts. In fact, I am now thinking of the four as The Beatles of Clean Energy. Like Harrison, Lennon, McCartney, and Starr, each of these professors is a rock star scholar in their own right. But bring the four of them together, and you get something truly special. Here’s hoping that Klass, Macey, Welton, and Wiseman are already working on their next album. We could all use a good soundtrack on the long and winding road to a cleaner, more reliable power grid.
Aug 20, 2021 Felix MormannEnergy Law
Madison Condon,
Externalities and the Common Owner, 95
Wash. L. Rev. 1 (2020), available at
SSRN.
At Chevron’s 2020 annual meeting, a majority of voting shareholders approved a resolution urging the oil giant to bring its lobbying efforts in line with the Paris Climate Agreement’s goal of limiting global warming to two degrees Celsius. What seemed like a pipe dream not long ago has become a fixture on Wall Street. Climate activism has emerged as a dominant theme at shareholder meetings in the energy sector and beyond, with some resolutions receiving nearly sixty percent of votes. In her excellent article, Externalities and the Common Owner, Professor Madison Condon draws on modern portfolio theory to offer an intriguing explanation for the changing tide in shareholder climate activism.
In recent years, concerned shareholders have garnered majority approval for resolutions calling for corporate emission reduction targets, better disclosure of climate risk, and suspension of lobbying against carbon regulation, among other climate action – often against the vocal opposition of the company’s own board. This surge in shareholder support for climate-related proposals is likely the product of a multitude of factors, including the growing sense of urgency surrounding global climate change. Professor Condon makes a compelling case that a key driver of shareholders’ newfound love for climate activism may be a paradigm shift in the approach of institutional investors to corporate governance.
Along the way, Professor Condon incisively slaughters not one, but two sacred cows of the corporate governance literature. First up, the general assumption that rational shareholders will exercise their governance rights to maximize the firm’s value. Condon persuasively lays out the inherent conflict (at least in the near term) between the corporate objective of profit maximization and a shareholder-driven commitment to voluntary emission reductions, even more so when such a commitment is to be adopted by carbon majors like Shell, Total, or Chevron. The second bovine casualty of the article’s sharp analysis is the widely held belief that broadly diversified institutional investors are “rationally reticent” to invest their time and effort in corporate governance. After all, portfolio diversification tends to produce relatively small stakes in individual companies so the significant costs of shareholder engagement would translate to only small returns to the diversified investors’ portion of ownership. And yet, recent proxy seasons offer ample evidence of climate activism by pension funds, insurance companies, mutual funds, and other institutional investors bullying big oil and other carbon majors into climate action. So what gives?
The answer flows indirectly from Einer Elhauge’s observation that the proliferation of institutional investment has reduced market competition as key companies are increasingly owned by the same large shareholders. Since 1950, the share of institutional ownership in U.S. equities has grown from little over 5% to nearly 80%. Today, there is a more than 90% chance that any two competing firms in a given industry share at least one large shareholder that holds a stake of five percent or more in both companies – a more than fivefold increase compared to 1994. As Elhauge and others hone in on the anti-competitive effects of such “horizontal shareholding,” Professor Condon adds a novel climate dimension to the discourse.
Externalities and the Common Owner crafts a compelling argument that BlackRock, CalPers, Vanguard, and other “universal owners” have a strong financial incentive to advance corporate governance that will “mitigate climate change risks and damages to their economy-mirroring portfolios.” These broadly diversified institutional investors are willing to accept the negative short-term impacts of climate activism on the bottom line of individual firms if their engagement helps reduce systemic climate risk sufficiently to avert, or at least mitigate, damage to their other portfolio holdings. To illustrate this paradigm shift from the traditionally firm-centric to a portfolio-maximizing shareholder governance strategy, Professor Condon cites to several investor declarations revealing a growing emphasis on portfolio returns. She also offers an intuitive back-of-the-envelope calculation comparing costs and benefits using William Nordhaus’s acclaimed Dynamic Integrated Climate Economy Model. Based on Condon’s math, a broadly diversified investor like BlackRock with significant stakes in Exxon and Chevron might lose over $6 billion by supporting shareholder resolutions that force a 40% reduction in the two companies’ greenhouse gas emissions. But these losses would be more than compensated by the nearly $10 billion in damages from climate change that the emission reductions would avert from the rest of BlackRock’s portfolio.
Having laid out the economics of institutional investors’ externality-internalizing strategy of portfolio maximization, Professor Condon surveys the various avenues for influencing corporate officers, from shareholder proposals and board elections to informal communication and compensation. Next, she explores how sacrificing individual firm profits and value in the interest of portfolio returns may violate fiduciary duties owed by both firm managers and investment managers. Against this background, Professor Condon translates her observations and argument into a convincing amendment of the traditional narrative of institutional investors’ rational reticence to exercise their corporate governance rights.
The final section of Externalities and the Common Owner explores some of the broader normative issues presented by the portfolio-maximizing strategy of diversified institutional investors. Professor Condon ponders whether the net welfare gains from climate and other pollution reduction benefits will be enough to outweigh the negative welfare impacts from reduced competition and monopsony pricing in labor markets. A separate line of inquiry explores challenges related to the democratic legitimacy and accountability of a small group of heavyweight investors privatizing the kind of environmental governance choices traditionally left to governments and their elected officials. The author concludes that “[t]he net welfare effects of common ownership require further study, but intuition suggests this behavior is not aligned with aggregate social welfare.” (P. 79.)
Whether your scholarly interests lie in corporate governance, climate policy, or anywhere in between, Externalities and the Common Owner is a must-read. Professor Condon provides a deeply thought-provoking account of the evolving role of institutional investors in the war on carbon, while charting an intriguing agenda for future research on the benefits and drawbacks of portfolio maximization approaches to shareholder engagement.
Jun 19, 2020 Felix MormannEnergy Law
David B. Spence,
Regulation and the New Politics of (Energy) Market Entry, 95
Notre Dame L. Rev. 327 (2019), available at
SSRN.
A burgeoning literature explores the siting challenges, equity issues, and justice concerns associated with energy project development. The important role that NGOs like the Sierra Club, 350.org, or the Environmental Defense Fund play in the ensuing conflicts is widely acknowledged, yet the dynamics of NGO mobilization are relatively underexplored. Professor David Spence’s fine article, Regulation and the New Politics of (Energy) Market Entry, goes a long way toward closing that gap, offering critical insights into NGO strategy, framing, and coordination.
Professor Spence starts by laying out the tensions resulting from the U.S. energy economy’s reliance on private investments to build and maintain the infrastructure necessary to meet the American public’s demand for energy services. These investment decisions are guided by statutes and regulations that reflect the evolving prioritization among three fundamental objectives that make up the so-called energy trilemma: affordability, reliability, and environmental performance. Historically, the first two objectives dominated but, more recently, climate change and other environmental prerogatives have emerged as the driving forces behind much energy investment.
Next, the article surveys the wide range of regulatory barriers to entry facing new energy projects in the form of frequently fragmented licensing regimes across municipal, state, and federal levels of governance. As Professor Spence astutely observes, the horizontally and vertically overlapping nature of this licensing process offers NGOs and other opposing parties a plethora of points for intervention, enabling conflicts to play out along multiple fronts simultaneously. The intensity of conflicts over energy infrastructure siting, the article argues, has been amplified by two related “centrifugal forces”: the rise of digital connectedness and the growing hyperpolarization of our society. Feeding off each other, both phenomena foster the heightened media presence and emotional intensity of recent conflicts over energy projects, such as the Keystone XL pipeline or the Cape Wind project.
At the heart of Professor Spence’s article lies a data set that comprises more than three hundred energy projects that became the targets of opposition from over four hundred NGOs between 2000 and 2017. It is a testament to the author’s open-minded and balanced thinking that these projects run the technological and environmental gamut, from oil-and-gas exploration to pipelines to LNG terminals, from coal-fired power plants to nuclear reactors to wind and solar installations. The same attention to diversity and detail carries over to the way the article distinguishes among various types of NGOs, from local and state to national and international organizations.
Professor Spence uses his impressive data set to test a variety of hypotheses geared toward better understanding the tactical and issue-related decision-making of NGOs. The findings are compelling and offer novel insights into NGO strategies. The article highlights three specific patterns to support its thesis that polarization and digital interconnectedness have exacerbated the frequency and intensity of energy project siting conflicts in the twenty-first century.
First, mass mobilization around risk-based arguments emerges as the default strategy for NGO opposition to energy project development. Claims about the economic or environmental justice impacts of projects, for example, were far less likely to be part of NGO messaging and strategy. Professor Spence persuasively argues that risk-based anchoring of NGO campaigns is a likely product of the ease of instantaneous communication to a large audience facilitated by our growing digital interconnectedness.
The second pattern observed in the data cautions readers to take NGOs’ risk-based communications with a grain of salt, at least for certain types of projects. In the context of wind farms, smart meters, transmission lines, fracking operations, and nuclear power, many NGOs made claims about associated health risks that are not supported by scientific consensus. Professor Spence points out that such risk-related overrepresentations are significantly more prevalent among local NGOs, compared to their national counterparts.
Both the general propensity of NGOs to mobilize around risk and the tendency to misrepresent health risks observed among some NGOs may, according to Professor Spence, reflect a natural adaptation to today’s “post-truth” politics. In this brave new political landscape, increasingly insulated communities of belief have supplanted societally representative deliberations in search of truth.
The third pattern discernable from the data suggests a growing degree of coordination among NGOs, likely facilitated by our digital connectedness. Tactical coordination would explain the similarity between local and national NGOs’ strategies related to litigation, political action, and issue arguments across a range of projects. There are, as Professor Spence notes, limits to this kind of collaboration among (and even within) NGOs, such as when local chapters of a national NGO oppose clean energy infrastructure because of a project’s local environmental impacts, placing themselves in direct conflict with the parent organization’s general approval of and possible campaign for clean energy projects.
With Regulation and the New Politics of (Energy) Market Entry, David Spence has taken a major step toward helping us understand the strategic decision-making behind NGO opposition to energy infrastructure development. Given the quality of his data set and his analytical acuity, we can only hope that this piece will be his first of many forays into the world of NGOs. I for one would love to see what insights Professor Spence’s data can offer on the way other factors may influence NGO decision-making and strategy. Does it matter, for example, whether a project is sponsored by local as opposed to national or international firms? What impact, if any, do different models for public participation during the licensing process have? Do macroeconomic shocks, such as the financial crisis, correlate with discernable changes in NGO decision-making and strategy? I could go on but trust that my point is made: more, please!
