Law Commons^™

Revolving Doors - We Got It Backwards, Hadar Yoana Jabotinsky Dr.

University of Cincinnati Law Review

The revolving door phenomenon, in which senior public officials transfer from the public service to the private sector after finishing their term as public officials, and vice versa, is widespread. This gives rise to concern of regulatory capture, which happens when the regulators respond to the wishes of strong interest groups, such as the regulated industry, instead of protecting the interests of the general public. The solution is usually found in conflict-of-interest rules which set cooling-off periods for individuals moving from the public to the private sector. This paper proposes that although revolving doors do incur some costs, they also …

A Us Clean Energy Transition And The Trump Administration, Joseph P. Tomain

Faculty Articles and Other Publications

The Obama administration undertook several steps giving the US federal government a leadership role in a clean energy transition. Among other actions, the administration develop a Climate Action Plan, successfully negotiated higher fuel vehicle standards with car manufacturers, passed the Clean Power Plan, and signed the Paris Climate Agreement. Although the United States had been party to other international climate agreements and was a signatory to the Rio Declaration, other federal efforts were lax at best.

During his election campaign, Donald Trump promised his supporters to eliminate the Clean Power Plan, withdraw from the Paris Agreement, curtail the Environmental Protection …

Clean Power Policy In The United States, Joseph P. Tomain

Faculty Articles and Other Publications

Within the last year, the Obama administration has taken two significant and dramatic steps addressing the challenges of climate change and demonstrating a renewed leadership role for the US. First, as a signatory to the Paris climate agreements, the US has stepped forward to participate in that global effort after years of recalcitrance. The US, for example, signed the Rio Declaration in 1992 but five years later would not ratify the 1997 Kyoto Protocol. Now, though, the US has reversed course and has reentered the international climate conversation.

The second significant climate initiative came on the domestic front as the …

The Democratization Of Energy, Joseph P. Tomain

Faculty Articles and Other Publications

The electricity industry is changing in dramatic ways.Most significantly, as demonstrated by the Obama Administration's Clean Power Plan, the country is witnessing the merger of energy and environmental regulation. Historically, energy regulation was driven by the need to produce more power for economic growth. By contrast, environmental regulation attended to the pollution of the environment. Production of energy depends upon the use of natural resources, and throughout the fuel cycle from extraction and transportation to the burning and disposal of those resources, the environment is directly affected. Most dramatically, greenhouse gas emissions present climate change challenges. In order to effectively …

Traditionally-Structured Electric Utilities In A Distributed Generation World, Joseph P. Tomain

Faculty Articles and Other Publications

This article argues that the twenty-first century challenge to the electric industry is different in kind from previous challenges. Further, past responses to past challenges are inadequate to meet the convergence of demands posed on investor owned electric utilities by new technologies, new markets, and new regulations. Instead, the twenty-first century challenge requires a dramatic new response as electric utilities face a new economic order and as they seek revenue protection and assurances of financial stability from their regulators.

This article will first explore current industry characteristics and challenges in Part II. Part III will then discuss the current situation …

Shale Gas And Clean Energy Policy, Joseph P. Tomain

Faculty Articles and Other Publications

If we look behind the numbers on energy consumption, how much of that declining consumption is attributable to increases in energy efficiency and how much is attributable to a poor economy? If we look more closely at shale gas production, particularly when we consider hydraulic fracturing, what environmental costs are associated with developing this domestic resource? And, from a broader perspective, what role should natural gas, including shale gas, play in the country's clean energy future? Will we continue to favor fossil-fuel incumbents at the expense of new entrants in renewable resources and energy efficiency? This Article will address these …

Our Generation's Sputnik Moment: Regulating Energy Innovation, Joseph P. Tomain

Faculty Articles and Other Publications

In his 2011 State of the Union Address, President Obama stressed the necessity of innovation as the key to unlocking our economic future. More pointedly, he stated that now is "our generation's Sputnik moment." Just as the United States responded to national security threats posed by a cold war Russia, today we must respond to threats to our economy and our environment, as well as to our national security, posed by an oil addiction that we have not been able to break for over half a century. The intertwined needs to provide sufficient energy, environmental protection, and a vibrant economy …

'Steel In The Ground': Greening The Grid With The Iutility, Joseph P. Tomain

Faculty Articles and Other Publications

As the United States addresses climate change through carbon reduction strategies, it must focus on the two major parts of our energy portfolio - oil and electricity. Electricity is a central focus because over one-half of all electricity generated is derived from coal-burning power plants, which are notoriously dirty. Other cleaner and renewable sources of electricity, such as wind and solar power, are available. However, over the last hundred years, the electricity industry has been constructed to serve large-scale, centralized and capital-intensive coal and nuclear plants.

There are good economic reasons for building large power plants. Economies of scale can …

To A Point, Joseph P. Tomain

Faculty Articles and Other Publications

For over a century, the United States has operated under a consistent energy policy that has served the country well. Our Traditional Energy policy is based on three economic assumptions: private capital and markets create wealth and stimulate innovation; there is a direct and positive correlation between energy production and economic productivity; and economies of scale will enable us to produce more energy at lower cost. Events over the last four decades, however, have given cause to question that Traditional Energy policy. The damage from Hurricanes Katrina and Rita helped focus that questioning. Increasingly over that period, national and international …

Smart Energy Paths: How Willie Nelson Saved The Planet, Joseph P. Tomain

Faculty Articles and Other Publications

In examining the need to move away from traditional energy policy and toward Smart Energy, the article draws a connection between physicist Amory Lovins and singer Willie Nelson. Both believe that our country's century-old traditional energy policy no longer meets our needs. Rather, they feel that such an antiquated policy ignores the challenges that the country and the world face today. Smart Energy is not only a promising vision of the future, it is the only realistic vision. It is pro-growth, because it promotes the development of new industries and new technologies. Smart Energy is protective of the environment by …

Rethinking Reform Of Electricity Markets, Joseph P. Tomain

Faculty Articles and Other Publications

Rethinking Reform starts with a thought experiment about the complete deregulation of electricity markets. The article goes on to discuss how the traditional model of utility regulation has served its useful purpose and must be replaced. The two recommendations made in the article include the use of marginal cost pricing and an array of smart energy technologies to create a better and more efficient energy policy.

Nuclear Futures, Joseph P. Tomain

Faculty Articles and Other Publications

Nuclear Futures examines three scenarios for the future of nuclear power in light of current thinking regarding energy policy more broadly. To help situate the alternative policies, the article also provides a rough cost benefit analysis on how to think about adopting a particular nuclear policy. The article discusses a promotional nuclear policy as advocated by the current Administration and Department of Energy, Precautionary Nuclear Policy and the Smart Energy Policy that relies on market tests, alternatives to large scale capital intensive nuclear investments.

The Past And Future Of Electricity Regulation, Joseph P. Tomain

Faculty Articles and Other Publications

Electric industry restructuring has been an activity not free from difficulties. The California energy crisis of the summer of 2000, the world crisis after September 11, as well as the implosion of Enron have raised questions about the future of electricity restructuring. As a policy matter, the move to reduce command-and-control regulation of the electric industry and to promote competition enjoys widespread support. The industry, however, is not one that can be totally deregulated. This Article argues that the California and Enron crises may slow restructuring, but restructuring should continue as a matter of sound industrial policy. In addition, the …

Networkindustries.Gov.Reg, Joseph P. Tomain

Faculty Articles and Other Publications

This essay is part of a Symposium entitled "American Regulatory Policy: Have We Found A Third Way?" The paper looks at the changes in the regulation of what were once called public utilities and are now called network industries. Traditional regulation is described and compared with the current form and structure of the regulation of these industries. The paper makes the argument that, even though deregulation is occurring consistent with Third Way thinking, it is occurring not only because of changes in world global economic views. Rather, it is changing because of what traditional regulation has accomplished.

Traditional regulation constructed …

Electricity Restructuring: A Case Study In Government Regulation, Joseph P. Tomain

Faculty Articles and Other Publications

Understanding the electric power industry can at times be overwhelming given the amount of information, technical jargon, economic forecasts, and detail involved with such a complex field. For the sanguine (or the cynical), the more regulatory or deregulatory initiatives the better because the industry needs the regulatory services of lawyers and other consultants. For the less sanguine (or the less cynical), there is a desire for some stillness in this ongoing change in the regulation of the electric power industry. It is the intent of this article to provide some relief through a brief regulatory history of the electric industry. …

The Dominant Model Of United States Energy Policy, Joseph P. Tomain

Faculty Articles and Other Publications

Conventional wisdom has it that the United States has no coherent and comprehensive national energy policy.! This notion persists despite the fact that Congress requires the President to submit to it, biannually, a national energy plan.2 Like all catechisms, this belief is partially true and partially false, depending upon one's perspective. The better statement about U.S. energy policy is that it is kaleidoscopic. If one concentrates on one portion of a kaleidoscope, shapes, colors and images appear chaotic. So, too, does energy policy if one examines only one segment of the policymaking process, as does an analyst who concentrates on …

Nuclear Transition: From Three Mile Island To Chernobyl, Joseph P. Tomain, Constance Dowd Burton

Faculty Articles and Other Publications

The regulation of the commercial nuclear power industry in the United States is experiencing a radical transformation caused by dramatic changes in nuclear power markets and politics. This Article addresses the economic and political displacement and realignment of nuclear regulation during the period of transition from the traditional model of regulation to the emerging post-industrial model. The transition dates from March 28, 1979, the date of the incident at Three Mile Island, to April 26, 1986, the date of the Chernobyl accident. Part II describes the nuclear market and the signs of fatigue. Part III discusses the political and regulatory …

Law And Policy In The Activist State: Rethinking Nuclear Regulation, Joseph P. Tomain

Faculty Articles and Other Publications

This Article concerns the interaction of law and policy and its impact on the formation of rules of law and their implementation. In a modern bureaucratic polity, law and policy interact according to a set formula: law follows policy in the activist state. This Article will analyze the law-follows-policy formula in the context of nuclear power regulation.

Nuclear policy has not kept up with the political or economic climates which have grown skeptical of nuclear power. This failure or inability of the nuclear power bureaucracy to respond effectively to political and economic changes is the essential weakness in the law-follows-policy …

Institutionalized Conflicts Between Law And Policy, Joseph P. Tomain

Faculty Articles and Other Publications

Law and policy do not mix well. The legal system is a significant force which contributes to the splintering of substantive policies. While this argument is made with specific reference to energy law and policy, it also has a general application to other classes of complex cases.

The "signs" that law and policy do not interact neatly manifest themselves in the form of conflicts of two different categories. In the first category are conflicts between the ends and purposes of law and policy. These are addressed in Section 11 of this article. In the second category are conflicts within the …