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Misguided Energy: Why Recent Legislative, Regulatory, and Market Initiatives are Insufficient to Improve the U.S. Energy Infrastructure

Joshua P. Fershee, University of North Dakota

Abstract

This Article argues that recent legislative and regulatory attempts to address inadequate energy infrastructure in the United States are too limited in scope and rely too heavily on market-based initiatives to stimulate the urgent improvements that are necessary. The Article analyzes the likely effects of the Energy Policy Act of 2005, challenging the assumption that the provisions intended to remove potential impediments to investment--including those repealing the Public Utilities Holding Company Act and modifying the merger review authority of the Federal Energy Regulatory Commission (“FERC”)--are likely to result in significant new investment in energy infrastructure. In addition to identifying remaining impediments to FERC’s siting authority, the Article explains how FERC’s increased use of market-based rates is insufficient to attract the necessary capital for infrastructure construction, considering the long lead times involved and the potentially tragic effects that can befall consumers in the interim. As a model of a successful regulatory approach, the Article examines the limited success of small-scale emergency orders in improving the energy infrastructure in targeted areas during the aftermaths of the California Energy Crisis and Hurricanes Katrina and Rita. The author concludes by calling for similar targeted intervention, albeit on a larger scale, and specifically recommends the expansion of federal siting authority for new construction and the provision of financial incentives tied to realistic deadlines to attract new investment.

Suggested Citation

Joshua P. Fershee. "Misguided Energy: Why Recent Legislative, Regulatory, and Market Initiatives are Insufficient to Improve the U.S. Energy Infrastructure" Harvard Journal on Legislation 44 (2007): 327-362.
Available at: http://works.bepress.com/joshua_fershee/3