The window to achieve a livable, sustainable climate for all is rapidly closing.[1] The good news is that we have the tools to drastically reduce greenhouse gas emissions in order to avert the worst climate scenarios.[2] As recognized by the Paris Agreement, countries around the world have set the target for limiting global warming during the twenty-first century to 1.5°C above preindustrial global average temperatures (with 2°C as an absolute maximum).[3] Limiting total warming to these thresholds will reduce climate-related harms to human and natural environments, create opportunities for further mitigation, and allow for greater adaptation potential to unavoidable climate impacts.[4] Achieving either goal requires “rapid, deep, and in most cases immediate” greenhouse gas emissions reductions.[5]

In the United States, policymakers at the national, state, and local level have identified electrification, decarbonization of electricity, and power grid modernization as important pathways to make these rapid, deep emissions reductions. Electrification shifts the power sources for transportation, appliances, heating systems, and industrial processes from direct fossil-fuel combustion to electricity.[6] To realize substantial emissions reductions from electrification, increasing shares of the electricity must be generated from renewable energy or low-emitting sources.[7] Modernizing the power grid also helps reduce greenhouse gas emissions, since adding capacity, reducing transmission and distribution losses, and enabling connection with advanced grid-interactive efficient buildings and other demand-response programs can reduce overall demand for fossil fuel-generated electricity.[8] The Biden Administration’s landmark climate law, the Inflation Reduction Act, and complementary provisions from the Bipartisan Infrastructure Law, made significant federal investments in electrification, energy decarbonization, and grid modernization.[9] Many states have also identified these strategies as critical components of their climate action plans or applications for federal funding to mitigate climate pollution.[10] As the next federal administration’s fossil fuel agenda looms, state and local action to electrify, decarbonize electricity, and upgrade the power grid can still make substantial progress toward the immediate emissions reductions necessary to keep global warming within 1.5°C. For state and local governments to maximize their electrification efforts, however, state public service commissions (PSCs) must stop resisting efforts to incorporate climate concerns in energy regulation.

Although PSCs have been described by recent legal scholarship as exerting a “chokehold on meaningful climate progress,”[11] their recalcitrance appears to be rooted in something besides doctrinal limitations. Two systematic reviews of PSC-governing statutes nationwide demonstrates that the “common misperception” of PSCs as “solely economic regulators” is “simplistic” and ignores many statutes that “explicitly recognize the link between economic and environmental issues.”[12] Furthermore, PSC avoidance of climate change concerns despite statutory mandates to consider the environment or climate change suggests that the issue is a lack of willpower rather than legal power.[13] Professor Alison Gocke also critiques the assumed divide between energy and environmental law as ahistorical.[14] Somewhat remarkably, the New York PSC used traditional energy regulatory tools to instigate and coordinate New York City’s wholesale transition from coal to natural gas in the 1940s and 1950s, primarily to secure public health benefits by switching to a cleaner-burning fuel.[15] Finally, “energy democracy” theory provides a complementary explanation for the lack of responsiveness to customer demands for clean energy and modernized grids.[16] Early in the twentieth century, PSCs, investor-owned utilities, and rural electric cooperatives depoliticized their operations and thus achieved a stable regulatory environment that protected their capital investments.[17] As a direct result of this Regulatory Compact, they remain relatively insulated from political pressure.[18]

Together, these theories can inform strategies to contest PSC resistance to taking climate action. Legal advocacy before PSCs should incorporate an expansive understanding of the power of regulatory tools to achieve public benefit, as exemplified by the mid-twentieth century New York PSC. These strategies can benefit from being buttressed by a broader social and political change movement that advocates for access to process, local control, and consumer choice in their energy provision, especially as it relates to renewable energy and emissions reductions.[19] Climate advocates can also pursue PSC personnel change through electoral processes, leverage state-enacted clean energy standards to hold PSCs accountable, and advocate for other state entities to take innovative climate action that avoids PSC involvement. Thus, repoliticizing energy can force PSCs to achieve their true public interest mandate.

 

 

[1] Intergovernmental Panel on Climate Change [IPCC], Summary for Policymakers, in Climate Change 2023: Synthesis Report 24 (Core Writing Team et al. eds, 2023), https://www.ipcc.ch/report/ar6/syr/.

[2] Id. at 24–25.

[3] Alexa K. Jay et al., Ch. 1 Overview: Understanding Risks, Impacts, and Responses, in Fifth National Climate Assessment 1-13 (Allison R. Crimmins et al. eds., 2023), https://doi.org/10.7930/NCA5.2023.CH1; Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104.

[4] IPCC, supra note 1, at 25–26.

[5] Id. at 22, 22 fig.SPM.5.

[6] See Mathilde Huismans, Int’l Energy Agency, Electrification – Energy System, IEA (July 11, 2023), https://www.iea.org/energy-system/electricity/electrification; Jay et al., supra note 3, at 1-42; Off. of Pol’y, U.S. Dep’t of Energy, DOE/OP-0022, Investing in American Energy: Significant Impacts of the Inflation Reduction Act and Bipartisan Infrastructure Law on the U.S. Energy Economy and Emissions Reductions 5 (2023), https://www.energy.gov/sites/default/files/2023-08/DOE%20OP%20Economy%20Wide%20Report_0.pdf.

For example, a consumer might switch out a gas stove for an electric stove or substitute their traditional car for an electric vehicle or electric bicycle.

[7] Steven J. Davis et al., Ch. 32 Mitigation, in Fifth National Climate Assessment 32-14, -18 (2023), https://doi.org/ 10.7930/NCA5.2023.CH32.

[8] See Craig D. Zamuda et al., Ch. 5 Energy Supply, Delivery, and Demand, in Fifth National Climate Assessment 5-15, -15 fig.5.5 (2023), https://doi.org/10.7930/NCA5.2023.CH5; How Much Electricity Is Lost in Electricity Transmission and Distribution in the United States?, Frequently Asked Questions (FAQs), U.S. Energy Info. Admin. (2023), https://www.eia.gov/tools/faqs/faq.php (last visited Nov. 17, 2024) (estimating U.S. transmission and distribution losses to be about 5% annually).

[9] Inflation Reduction Act of 2022, Pub. L. No. 117-169, 136 Stat. 1818; Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021); Savannah Bertrand, How the Inflation Reduction Act and Bipartisan Infrastructure Law Work Together to Advance Climate Action, Env’t & Energy Study Inst. (Sept. 12, 2022), https://www.eesi.org/articles/view/how-the-inflation-reduction-act-and-bipartisan-infrastructure-law-work-together-to-advance-climate-action.

[10] E.g., Mass. Exec. Off. of Energy & Env’t Affs., Massachusetts Clean Energy and Climate Plan for 2025 and 2030 2 (2022), https://www.mass.gov/doc/clean-energy-and-climate-plan-for-2025-and-2030/download (“Massachusetts’ approach to achieving its emissions limits and sublimits is based on three basic principles: [1] electrify non-electric energy uses, [2] decarbonize the electric grid, and [3] reduce energy costs and the costs of transition by increasing the efficiency of transportation and energy systems.”); Mich. Dep’t of Env’t, Great Lakes, and Energy, Michigan Priority Climate Action Plan 9 (2024), https://www.epa.gov/system/files/ documents/2024-03/michigan-egle-pcap.pdf (“electrification of the transportation and built environment”); State of Louisiana, Louisiana Priority Climate Action Plan 23 (2024), https://www.epa.gov/system/files/documents/ 2024-02/louisiana-5d-02f36401-0-pcap-final-with-appendices.pdf (industrial electrification).

[11] Mandate Versus Movement, supra note 45, at 1621; see also Gocke, supra note 45, at 2776 (“[S]tates and their public utility commissions will, in large part, determine whether and how we tackle climate change and transition to a clean-energy economy.”).

[12] Michael Dworkin et al., The Environmental Duties of Public Utilities, 18 Pace Env’t L. Rev. 325, 327 (2001); Michael Dworkin et al., Revisiting the Environmental Duties of Public Utility Commissions (2006), 7 Vt. J. Env’t L. 1, 2 (2006) (updating and reaffirming results of original survey and noting considerable additional implied authority).

[13] Developments in the Law — Climate Change: Mandate Versus Movement: State Public Service Commissions and Their Evolving Power Over Our Energy Sources, 135 Harv. L. Rev. 1616, 1625–32 (2022) [hereinafter Mandate Versus Movement] (showing how the Maryland and Wisconsin PSCs dodged any obligation to consider climate impacts despite mandates to consider environmental issues, the Hawaii and Iowa PSCs avoided express obligations to consider climate effects from their decisions, and Michigan PSC analyzed greenhouse gas emissions of pipeline decision by locating authority to do so in state’s version of the National Environmental Policy Act).

[14] Alison Gocke, Public Utility’s Potential, 133 Yale L.J. 2773, 2791 (2024).

[15] Id. at 2791–93, 96.

[16] Ethan Greenberg & Corina McKendry, Contested Power: Energy Democracy and the Repoliticization of Electricity in the Western U.S., 73 Energy Rsch. & Soc. Sci. 101942, 1–2 (2021).

[17] Id. at 2.

[18] Id. at 2–3.

[19] See id. at 4–7 (describing examples of three local social change and political movements that successfully repoliticized energy in their communities by calling for these three aspects of energy democracy).