As climate change sharpens the focus on our electricity systems, there is widespread agreement that the institutions that govern our electric grid must change to realize a clean energy future in the timescale necessary. Scholars are actively debating how grid governance needs to change, but in this Article we demonstrate that current proposals are insufficient because they do not contemplate “rebuilding.” This Article defines “rebuilding” as ending entities tasked with grid governance and creating new ones to take their place. We propose what no one else has: an overarching framework for rebuilding any grid governance institutions.
This Article discusses when rebuilding is necessary, arguing that incrementalism has slowed progress toward more clean energy and that much bolder solutions are imperative. Policy proposals to date have been accommodative, tending to lead to slower progress toward clean energy goals than necessary. A further challenge is that utility dominance in regulatory conversations has led to inefficient and unjust outcomes, and would not be addressed sufficiently by current reform proposals. Addressing these challenges, this Article identifies three criteria for deciding when specific grid governance institutions should end, terming these administrative dysfunction (continued dithering over a subject without making sufficient progress), utility indifference to the common good, and incapacity of the current governance structure to achieve positive outcomes.
This Article concludes that rebuilding is essential to ensure that grid governance will effectively mitigate climate change and address the shortcomings of our current grid governance structures. To guide the rebuilding of grid governance, this Article details three overriding principles for new entities, which are: resource agnosticism, broad-based participation, and a lack of self-centricity. This Article applies these principles to a specific setting—the “Minimum Offer Price Rule” prevalent in wholesale electricity markets that hampers clean energy development—and concludes that regional transmission organizations should not continue to disfavor clean energy in their markets.
Joel B. Eisen, Rebuilding Grid Governance, 48 BYU Law Review 1057 (with Heather Payne) (2023).