Mandate Versus Movement: State Public Service Commissions and Their Evolving Power over Our Energy Sources.

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Date: Apr. 2022
From: Harvard Law Review(Vol. 135, Issue 6)
Publisher: Harvard Law Review Association
Document Type: Article
Length: 11,093 words
Lexile Measure: 1820L

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The climate is changing and so must our energy sources. But how do we get there? Who decides when and where to build new power stations across the country? And critically, which resources should power those stations--coal, gas, or the sun? When it comes to the climate crisis, public service commissions (PSCs) are the most important state agencies many people have never heard of.

In 2020, U.S. grids were powered by eighty-eight percent nonrenewable energy and twelve percent renewable energy. (1) In large part, these energy profiles are an amalgamation of the scattered decisions by 201 state public service commissioners across the country. (2) Although the federal government has asserted authority over certain energy resources, such as nuclear power plants (3) and hydroelectric dams, (4) decisions about how we power the electric grid are primarily left to the states. (5)

The climate crisis must be solved through thoughtful energy solutions. Unfortunately, although states' energy decisions affect the climate, the climate does not always affect states' energy decisions. PSCs are creatures of habit and have developed case law, administrative procedures, and staffing decisions for a century through an economic lens. This narrow focus is due to PSCs' traditional economic mandate to hold in check the monopolistic market power of utility companies and serve as a proxy for real-world competition. Even when given authority to regulate environmental and climate issues, these agencies have neither a road map nor adequate resources to do so. While a few state PSCs have successfully embraced their role in the climate solution, they stand as the outliers. Most state PSCs remain entrenched in their traditional economic mandate, refusing to consider the impacts of their energy decisions on the climate and, at times, undermining the will of their electorate.

This Chapter studies the conflict between the historical mandate of PSCs and the modern movement of climate policy and politics, explaining how PSCs continue to resist their role in solving climate change, despite explicit environmental mandates and increasing pressure to act on the climate. (6) Section A introduces the problem, explaining what and who state PSCs are and why their traditional economic role conflicts with the present climate call to action. Section B studies recent PSC orders and highlights how many PSCs continue to resist any role as an environmental regulator. Finally, section C proposes solutions to this problem. In the short term, states should override the decisionmaking processes of their PSCs by instituting clean energy standards. Although blunt and imperfect policy tools, these standards are effective and necessary. In the long term, states must target the root of the resistance and modernize a century-old administrative bias by providing explicit climate-related directives, workable objectives, and external support from all three branches of government.

A. Understanding the Problem: The Mismatch Between the Historical Mandate of PSCs and the Modern Movement on Climate Change

I. What and Who Are PSCs?--To understand the role of state PSCs, it is helpful to consider the companies they regulate. Utility companies stand as outliers in...

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Gale Document Number: GALE|A702381253