Regulatory Linearity, Commerce Clause Brinksmanship, and Retrenchment in Electric Utility Deregulation
The point of this Article is that if an agency has reached this point in the lifetime of its reinvention efforts by being "linear," then the experiment should end. In the case of restructuring, that is not the case, but two aspects of the situation make it exquisitely difficult to see this: an agency that is trying the same ideas repeatedly (FERC) and a complex set of variables that has hampered restructuring activity. Through this fog, the final point to be made is that if moving beyond the current stasis requires change, this should be contemplated. This industry is famously resistant to change, but if change is going to happen at all, it cannot take place the way it is doing so now. It is irresponsible to throw up our hands and refuse to deal with the situation. Electricity is America's most important commodity. The network of interconnected electric power facilities is national in scope, and the present problems with it cry out for a national solution. As others have noted in this dedicated issue, untangling its current problems may require too much change to expect in the short term, given how we are stumbling through to solutions. We may be in a second-best environment for the foreseeable future, but leaving the status of the system for making and distributing electricity in its current piecemeal status does no one any good.
Joel B. Eisen, Regulatory Linearity, Commerce Clause Brinksmanship, and Retrenchment in Electric Utility Deregulation, 40 Wake Forest L. Rev. 545 (2005).