The Bounds of Energy Law

U.S. energy law was born of fossil fuels. Consequently, our energy law has long centered on the material and legal puzzles that bringing fossil fuels to market presents. Eliminating these same carbon-producing energy sources, however, has emerged as perhaps the most pressing material transformation needed in the twenty-first century—and one that energy law scholarship has rightfully embraced. Yet in our admirable quest to aid in this transformation, energy law scholars are largely writing into the field bequeathed to us, proposing changes that tweak, but do not fundamentally challenge, last century’s tools for managing the extraction, transport, and delivery of fossil fuels and electrons. The result, as this Article illustrates, is that we are coming up short in achieving the scale and scope of transformation necessary for planetary stability. The aim of this Article is to push U.S. energy law scholars to expand the bounds of the field in three directions. First, to achieve durable policies that transform the energy system, this Article argues that we must orient more attention to institutions, politics, and power—rather than just substantive solutions—to revive the best of the early-twentieth-century Progressive scholarly tradition. Second, as conversations around the Green New Deal and the relationship of Black Lives Matter to the energy system highlight, there is both a political and moral imperative to shed our disciplinary obsession with economic efficiency and integrate considerations of overlapping societal priorities—most pointedly, racism and inequality—into energy law and policy. Finally, we should expand our idea of what counts as “energy law” beyond the delivery of fossil fuels and electrons, to include a broader and deeper analysis of how energy is embedded and consumed within the economy and society. That means tracing and regulating the flow of energy beyond the point of delivery by examining means of reducing or eliminating fossil fuel consumption across aviation, shipping, automobility, housing, and agriculture. It also means turning our attention to how the law can help build modes of life that better align with a no-carbon future—a new line of inquiry that the Article calls “structural energy conservation.