Hybrid Energy Governance
Hari M. Osofsky & Hannah J. Wiseman | 2014 U. Ill. L. Rev. 1
Energy law is substantively complex and deeply fragmented. Each energy sector—including fuel extraction and pipelines, electricity generation and transmission, and transportation—has its own legal regime and federalism approach. Confusion often exists at moments of crisis about how much authority federal, state, and local regulators have in these areas. The complexity and fragmentation of energy law are particularly problematic because the energy system faces major transitions due to emerging technology, more unpredictable and extreme weather events, and public pressure for cleaner energy. Regulators struggle to: (1) manage the risks of hydraulic fracturing and deepwater drilling, which are increasingly common in light of dwindling conventional oil and gas reserves; (2) upgrade our aging electricity grid; and (3) integrate renewable energy sources onto that grid and into electricity markets.
This Article develops a novel theory of energy governance and uses it to assess how institutional innovation can help meet critical modern energy challenges. Building from our prior work arguing for a dynamic approach to energy federalism, this Article focuses on the potential of institutions that are “hybrid” by virtue of including public and private actors from several governance levels and enabling important interactions among them. Grounding its approach in interdisciplinary governance theory, it argues that these institutions have characteristics that could address structural barriers to substantive progress in energy law, such as inadequate, divided regulatory authority, and the complexities of including key private actors in energy decision making. After introducing its new conceptual model, this Article examines several hybrid institutions with substantial regional components that are working to address the three core substantive energy challenges identified here. It analyzes their progress in meeting these challenges and how their hybrid governance approach is assisting them in doing so.