*This is the fifth post in a symposium on Morgan Ricks, Ganesh Sitaraman, Shelley Welton, and Lev Menand’s “Networks, Platforms, and Utilities: Law and Policy.” For other posts in the series, click here.
The new casebook by Morgan Ricks, Ganesh Sitaraman, Shelley Welton and Lev Menand on the law and policy of networks, platforms, and utilities (NPUs) is a remarkable undertaking that both reinvigorates and redefines the field of NPU law and policy. This updating of a field once deemed an essential component of legal education is long overdue. To give one example from my own teaching of why that is so, consider the modern tendency to conflate energy and environmental law. I have taught both subjects, and they could not be more different: environmental law is a product of the federal risk regulatory movement of the 1970s and 1980s, while energy law has its roots in early twentieth-century public utility regulation. By reminding us that networks, platforms, and utilities are categories that have played an important role in the American legal psyche, this book helps to explain why we see differences in regulatory approach, even among subjects that seem to share common features.
The book is accessible enough for students yet takes deep enough dives to serve as a reference for scholars. And by organizing the subject vertically (sector by sector) rather than horizontally (based on common features), it also provides readings for classes in the individual subject areas. For example, Shelley Welton’s chapters on energy regulation offer a concise yet comprehensive survey of key regulatory events and approaches in the governance of electricity, oil, and gas. They could form the backbone of a course in energy law, as well as partial material for a broader course on NPUs. One perpetual complaint from students about energy regulation is that readings can be dry. Not so Welton’s chapters. She is a gifted writer, and she brings the material alive by keeping her prose lively and the story moving.
But what exactly are networks, platforms, and utilities? In a very important sense, this is a book about the names we have chosen to describe certain collections of phenomena. Names are powerful. They are tools, in that they give us a common language to describe a set of objects and systems in society. But the act of naming goes beyond empirical observation. Naming tells a story. That story reflects not only the objects of description but the presuppositions and conventions surrounding those things. In this case, the names “network,” “platform,” and “utility” are encrusted with past experience. They glimmer with the ideologies within which they have found expression. These glimmers matter, even though the book makes no attempt to glorify past eras or systems. Instead, it sets itself the tasks of reclamation and reinvention. It presents the history of these concepts while also describing their present and hinting at their futures. In this endeavor, terminology can be a help as well as a hindrance.
Take energy law, the domain I know best. Let me briefly suggest three ways in which the terminology of the past complicates the task of crafting energy systems of the future, drawing on each of the terms in the book’s title. First, the phrase “public utility,” which has long been used to describe the companies that transmit and distribute energy (and sometimes generate and market it as well), has become tarnished by experience. Progressive-era enthusiasm for public-spirited regulation of businesses “affected with a public interest” gave way to concerns about regulator capture and interest group influence. Inadequate oversight has allowed some utilities to defer infrastructure maintenance, an omission that in the case of PG&E likely contributed to recent catastrophic wildfires in California. These experiences, and others, have produced disenchantment with the idea of investor-owned utilities in particular, and renewed calls for public takeover of these companies. As an alternative, symposium contributors William Novak, William Boyd, and others have led calls to reclaim the idea of “public utility.” The first approach might be described as revolutionary; the second is redemptive. Both have had to grapple with old terminology to imagine a way forward.
Second, policymakers today wrestle with whether to strengthen, adapt, or dismantle the core “networks” of the energy system: oil and gas pipelines and the electric grid. After focusing on building out oil and gas pipelines for so many decades, can and should we think instead about retrenchment? Should we avoid the construction fossil-fuel infrastructure that has a useful life of half a century or more? With respect to the electric grid, should we pursue strategies for ever greater interconnection in order to incorporate more variable renewable generation into the power mix? Should we instead (or in addition) be considering what Welton has called “non-transmission alternatives”? Imagining a world without gas (as Yochai Benkler invites us to do for other purposes in the opening of his contribution to this symposium) or a world without electricity transmission is difficult to do while anchoring on the idea of networks as fundamental to, even defining of, our past and present energy systems.
Finally, there are nascent attempts to expand the role of “platforms” in the electric system of the future. As part of New York’s effort to “reform the energy vision,” it is experimenting with distribution system platforms across which both electricity and grid services can be bought and sold, disrupting the traditional, highly centralized model of power generation, transmission and distribution. Maybe this solution is innovative enough. Or perhaps there are other ways to accomplish the aims of decentralization and consumer empowerment that are harder to imagine because we are anchored on existing terms and possibilities.
In his contribution to this symposium, Benkler observes that it is not the work of a casebook to offer transformative proposals. This is true. By revitalizing the study of NPU industries, the authors of this book have done a service to the field and to the profession. As we make use of their volume, however, we must be ever-conscious of the possibility that language is destiny, and of the threat that path dependence poses to innovation.
Sharon Jacobs is a Professor of Law at The University of California, Berkeley, School of Law.