In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.
This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. Energy regulation is, we argue, siloed across three dimensions: (1) across substantive responsibilities (clean energy versus reliability); (2) across jurisdictions (federal, regional, state, and sometimes local); and (3) across a public–private continuum of actors. This segmentation renders the full convergence of clean-energy and reliability goals extremely difficult. Reliability-focused organizations operating within their silos routinely counteract climate policies when making decisions about how to keep the lights on. Similarly, legal silos often cause states and regional organizations to neglect valuable opportunities for collaboration.
Despite the challenges posed by this disaggregated system, conceptualizing the sphere of energy reliability as siloed across these dimensions unlocks new possibilities for reform. We do not propose upending energy law silos or making energy institutions wholly public. Rather, we argue for calibrated reforms to U.S. energy law and governance that shift authority within and among the silos to integrate the twin aims of reliability and low-carbon energy. Across the key policy areas of electricity markets, transmission planning and siting, reliability regulation, and regional grid governance, we assess changes that would integrate climate and reliability imperatives; balance state, regional, and federal jurisdiction; and reconcile public and private values. We believe this approach to energy law reform offers a holistic and realistic formula for a cleaner, more reliable grid.
* Alexandra Klass is a Distinguished McKnight University Professor, University of Minnesota Law School. Joshua Macey is an Assistant Professor, University of Chicago Law School. Shelley Welton is the Presidential Distinguished Professor of Law and Energy Policy, University of Pennsylvania Carey Law School. Hannah Wiseman is a Professor of Law, a Wilson Faculty Fellow in the College of Earth and Mineral Sciences, and a Co-funded Faculty Member, Institutes of Energy and the Environment, Pennsylvania State University.
We thank Professors Daniel A. Farber, Ari Peskoe, William Boyd, Katherine E. Konschnik, Stephanie Lenhart, Jim Rossi, and Daniel E. Walters; participants in the Southern Environmental Law Scholars’ Workshop, the Penn State Law Faculty Works-in-Progress Series, and the Temple University Beasley School of Law Faculty Colloquium Series; and the students in Professor Sarah E. Light’s Environmental Law class at the Wharton School of the University of Pennsylvania for valuable comments on this Article.