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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!

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Cite as: Felix Mormann, The Internet of Beliefs and Strategies: How NGOs Fight Energy Projects in a Digitally Connected World, JOTWELL (June 19, 2020) (reviewing David B. Spence, Regulation and the New Politics of (Energy) Market Entry, 95 Notre Dame L. Rev. 327 (2019), available at SSRN), https://lex.jotwell.com/the-internet-of-beliefs-and-strategies-how-ngos-fight-energy-projects-in-a-digitally-connected-world/.