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The Regulatory Contract in the Marketplace

Posted by on Friday, January 15, 2016 in Articles, Volume 69, Volume 69, Number 1.

The Regulatory Contract in the Marketplace


For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets, while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract—a nineteenth-century concept that stands more for ordered regulation than competitive markets. This Article examines how piecemeal pursuit of two energy visions has produced mismatches between rapidly evolving markets and governance institutions that cannot change as quickly. To better evaluate these mismatches, the Article develops a framework that accounts not just for market operation and environmental externalities, but also the technical constraints of grid operation and electricity fuels. Relying on the experience of nuclear power, the Article creates an account of how a fuel source can be priced out of the market despite its apparent advantages in reliability and air emissions. With this understanding, the Article evaluates the political economy and governance challenges associated with diverse policy options aimed at better capturing valuable attributes of electricity. Ultimately, this analysis furthers our understanding of the regulatory contract in the marketplace, suggesting an updated vision for its role in mediating the competing goals for electricity markets.


Emily Hammond
Associate Dean for Public Engagement and Professor of Law, The George Washington University Law School.

David B. Spence
Professor of Law, Politics & Regulation, McCombs School of Business, University of Texas, and Professor of Law, University of Texas School of Law. The authors thank Donna Attanasio, William Boyd, Ann Carlson, David Dulick, Joel Eisen, Rob Glicksman, Felix Mormann, Dick Pierce, Jim Rossi, and Dan Stenger; as well as the participants in workshops at Arizona State University, UCLA, and the University of Utah.