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Thursday, September 28, 2006

Research Canons: Energy Law

Our next subject matter for the research canons project is Energy Law.  (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.)  Please comment on the books and articles that are essential to a new academic in the field.  It might be interesting to discuss what other fields are the primary contributors to energy law: ad law, property, etc.

Posted by Matt Bodie on September 28, 2006 at 12:04 PM in Research Canons | Permalink

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I am not sure whether this is the appropriate place to comment, but I'm a practitioner in energy law and I am hard pressed to identify any classic reads, in the manner that, for Chemerinsky is considered required reading on Section 1983. There are some general concepts that apply in energy law - preemption, constitutional law (Commerce Clause, takings clause), franchise law and ratemaking concepts like filed rated doctrine, Mobile-Sierra, just and reasonable, prudence. You can find the major cases on these topics here - http://www.hemplinglaw.com/cases-statutes.htm. Beyond that, other disciplines that inform energy regulatory law are bankruptcy law (with utility bankruptcies growing more prevalent, there are questions of whether and to what extent federal bankruptcy statutes override a utility's obligations under the Federal Power Act and whether FERC or a bankruptcy court has jurisdiction over issues like contract abrogation); securities law (though not clear how applicable with the 2005 repeal of PUHCA); administrative law (Chevron and the like, concepts of mootness and ripeness, rulemaking concepts); antitrust (FERC uses the HHI index borrowed from DOJ to evaluate anticompetitive impacts of mergers); contract law (as more rates are set by contract rather than tariff); tax law and finance (for issues related to financing new projects - particularly relevant in financing of renewable projects where tax credits and power purchase agreements make a difference in whether a project gets built or not); environmental law (siting, permitting and such); corporate law (related to powers of utilities) and ethics (for everything from codes of conduct, affiliate transactions). More than any other topic, energy law is an interdisciplinary field.

At the same time, energy law suffers from mediocrity. After all, let's face it - who voluntarily goes into energy law. Like me, most people fall into it and realize that it's an easy way to make money because few other people want to do it. As a result, the quality of work in this field is far below what you would find in sexier disciplines like securities regulation or First Amendment law. And most energy attorneys are not able to get beyond the jargon to make cases understandable for the appellate courts, so unless a panel takes the time to really think about the issues, the result is usually a case that defers to FERC unless it has committed truly egregious error. Now that renewable energy has become "hot," my hope is that a higher caliber of lawyers will be drawn to energy regulatory practice. But until then, we will be stuck with confusing rulings.

Posted by: Carolyn Elefant | Sep 28, 2006 6:11:15 PM

First, a quick comment on the prior post: The energy bar has its share of mediocre practitioners, but that is true in all fields. From my experience, there is little difference between energy lawyers and MA, antitrust, and litigation attorneys when it comes to talent. It is not the intellectual ability of energy lawyers that is often lacking; in fact, it is often superior. It is personality (i.e., people skills") that is the issue. The field desperately needs new blood. It is true thatenergy jargon and the complex nature of the industry have been scaring young lawyers away. Perhaps renewable energy is the cure.
As a discipline, energy law is underrepresented in terms of specific scholarship. Other than regulatory practice practice before the Federal Energy Regulatory Commission (FERC) and state commissions most lawyers practicing energy law are not exclusively energy lawyers. The interdisciplinary nature of the area often leads to specialization in some other field, e.g., antitrust, environmental, MA, litigation. Often the canonical works in those fields are the resources for energy lawyers. Furthermore, most energy regulatory attorneys learn the industry by reading FERC cases. Thus, FERC Order No. 888, 75 FERC 61,080 (providing open access electric transmission service), as modified and amended, and FERC Order No. 636, 59 FERC 61, 030 (restructuring interstate natural gas pipeline services), as modified and amended, are essential to an understanding of federal energy law.
Also, although not rising to the canon level, Issue 2 of Volume 40 of the Wake Forest Law Review provides significant background and insight for those interested in energy law. The issue is dedicated to Realizing the Promise of Electricity Deregulation. http://law.wfu.edu/x5814.xml
Order No. 888: http://www.ferc.gov/legal/maj-ord-reg/land-docs/order888.asp
Order No. 636: http://www.ferc.gov/legal/maj-ord-reg/land-docs/restruct.asp

Posted by: GreenWaveLawyer | Sep 29, 2006 3:23:00 PM

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