David B. Spence

• Ph.D, Political Science, Duke University
• University of Texas at Austin

This is the introductory chapter to my book, Climate of Contempt: How to Rescue the US Energy Transition from Voter Partisanship (Columbia Univ. Press, 2024). It summarizes the book's analysis.

Cambridge Core - American Studies - Can America Govern Itself? - edited by Frances E. Lee

We examine the interaction between price competition and policy in four ISO markets by modeling the economic dispatch of generation technologies and the evolution of generation resources over a fifteen year period beginning in 2016. Using a representative range of forward prices for natural gas and other generator costs, we model three potential pa...

The push toward competition, market pricing, and less regulation in the electricity industry embraces the logic and elegance of markets. It means that participants are exposed to more price risk than in the past, and it represents a narrowing of both the notion of the public interest and the government’s role in protecting that interest. But electr...

Recent U.S. state and federal legislation have been implemented with the intent of promoting the diffusion of plug-in electric vehicles (PEVs). Meanwhile, the federal government has passed new regulation aimed at increasing fuel efficiency standards of gasoline powered vehicles in order to reduce greenhouse gas emissions. In this paper, we examine...

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...

One of the primary fault lines in the ideologically polarized American political environment is the question of when it is advisable for the state to intervene in the market. This ideological and partisan division dominates the field of energy law, a body of regulation that encompasses two basic challenges: (i) the problem of ensuring well-function...

The political economy of energy policy in the United States is dominated by partisanship and industry lobbying. Both are reflected in the widespread belief that the Environmental Protection Agency (EPA) is engaged in a misguided “war on coal” - despite decades of regulatory delays, the coal industry’s status as the leading industrial source of air...

Congress is more ideologically polarized than at any time in the modern regulatory era, which makes legislation ever harder to pass. As a result, Congress is increasingly absent from the policymaking process, and fails to regularly update statutes in the face of social, economic and technological change. This leaves agencies to adapt old statutes t...

ABSTRACT The law is frequently called upon to resolve regulatory conflicts that arise when a majority mildly prefers policy X, and minority strongly prefers policy not X. Two emerging bodies of case law present this problem, both associated with the growing number of challenges to local restrictions on the use of hydraulic fracturing ("fracking")...

Congress is more ideologically polarized than at any time in the modern regulatory era, which makes legislation ever harder to pass. As a result, Congress is increasingly absent from the policymaking process, and fails to regularly update statutes in the face of social, economic and technological change. This leaves agencies to adapt old statutes t...

Public choice models have tended to take a dim view of delegation of policymaking authority to administrative agencies, but public choice methods can be used just as easily to construct a normative defense of delegation. We offer just such a defense here. We construct a simple formal model posing a hypothetical voter choice: whether to delegate pol...

The relatively sudden boom in shale gas production in the United States using hydraulic fracturing has provoked increasingly intense political conflict. The debate over fracking and shale gas production has become polarized very quickly, in part because of the size of the economic and environmental stakes. This polarized debate fits a familiar temp...

The electric power sector is facing significant new economic and regulatory pressures that are changing the electric generation mix. In this chapter in the forthcoming book Global Climate Change and U.S. Law, we examine the regulation of fuels used for electric power generation, focusing on regulatory trends and economic considerations that are lik...

The production of natural gas from formerly inaccessible shale formations using hydraulic fracturing has expanded domestic energy supplies, lowered prices, and could stimulate the replacement of dirtier fossil fuels (coal and oil) with cleaner natural gas. At the same time, shale gas production has proven controversial, triggering intense oppositio...

Recent political attention to the task of energy policy reform has generated a great deal of debate, and considerable legislative activity, but not the kind of fundamental change that proponents of reform seek. The push for energy policy reform today is driven by a groundswell of concern over environmental issues (primarily, climate change), energy...

Traditionally, American energy markets have been regulated using a combination of antitrust law and public utility law: the former has predominated in oil markets and the latter in markets for natural gas and electricity. Over time, energy markets have grown increasingly complex and competitive, due partly to changing market conditions (for example...

A national renewable portfolio standard ("RPS") represents one way to move the American economy toward cleaner sources of energy. By requiring electricity providers to secure a specified percentage of their power from renewable sources, a national RPS would replace some fossil-fueled power with cleaner power from solar, wind, biomass, and other ren...

This textbook for law and business school courses is organized roughly chronologically, according to the periods in history within which energy-related issues arose. Economic and environmental issues are integrated with energy resource issues: energy policy, energy in nature, the concept of a public utility, water power, coal, oil, natural gas regu...

Where governments once favored state ownership or intrusive public utility regulation of the electricity and gas sector, they now seem willing to restructure regulated markets to try some form of competition. These first experiments with competition have not gone smoothly. Emerging energy markets have been marked by wholesale price volatility and b...

Recent articles by Romano of Yale, Clark of Harvard, and Ribstein of Illinois have all surveyed the empirical academic literature and found Sarbanes-Oxley (SOX) wanting, Romano terming four of its key provisions "quack corporate governance." Using a slightly wider lens and considering an avalanche of more recent work, this article demonstrates that...

The last decade has seen a series of fierce, protracted battles over the regulation of air pollution from coal-fired power plants in the United States. These battles have been (and are being) waged by electric: utilities, environmental groups, and the last two presidential administrations, among others, before courts, agencies and Congress. They in...

Densely populated states like New York and New Jersey are challenged to find new and less expensive landfill space as their existing facilities reach capacity or are forced to close. For less densely populated states the challenge is to limit out-of-state access to their landfill space-realizing that the space will probably be needed for their own...

The modern American environmental regulatory system is founded on the assumption that business firms are rational polluters: that the rational pursuit of their self interest guides both their compliance decisions and their participation in the political process. This traditional view of firms implies that environmental regulators must deter polluti...

It is a widely held belief among legal scholars that public choice scholarship promotes a cynical view of politics and law, and of the administrative state in particular. In a recent article (Geo. L. J., 2000), Frank Cross and I offered a neo-Progressive defense of delegation expressed in public choice terms. Using a simple formal model, we demonst...

Economists and others have long argued that the American regulatory system is unnecessarily inefficient. Critics charge that the system is both substantively inefficient, in that it sometimes mandates the use of inefficient means for achieving a regulatory goal, and procedurally inefficient, in its over-reliance on rules. These arguments have led t...

Federal preemption case law under the Supremacy Clause and dormant Commerce Clause has been marked by a high degree of conflict and controversy. That is not surprising given the unusual ideological and political conflicts these cases pose. After describing federal preemption jurisprudence, the authors analyze a group of more than one hundred federa...

How effective are procedural controls? Why are they effective or ineffective? One way politicians and courts try to influence the decisions of administrative agencies is by imposing procedural requirements on the agency decision process. During the 1960-1990 time period, Congress and the courts imposed a succession of increasingly rigorous procedur...

This work addresses the question of how, and how effectively, elected politicians can exert ex ante influence over the policy choices of regulatory agencies. In order to test the hypothesis that politicians can use choices about the agency's structure and process to influence subsequent agency decisions, I analyze two sets of decisions made by the...

Economists and others have long argued that the American regulatory system is unnecessarily inefficient. Critics charge that the system is both substantively inefficient, in that it sometimes specifies inefficient means for achieving a regulatory goal, and procedurally inefficient, in its over-reliance on rules. These arguments have led to a wave o...

Federal preemption case law under the Commerce Clause and Supremacy Clause has been marked by a high degree of conflict and controversy. That is not surprising given the unusual ideological and political conflicts these cases pose. After describing this jurisprudence, we analyze a group of more than one hundred federal preemption decisions in the f...

One way politicians and courts try to influence policy decisions made by administrative agencies is by imposing procedural requirements on the agency decision process. During the 1960-1990 time period, Congress and the courts imposed a succession of increasingly rigorous procedural requirements on the Federal Energy Regulatory Commission's hydroele...

Courts, Congress, and commentators commonly justify the imposition of civil liability on non-blameworthy individuals by citing various societal imperatives once described Justice Holmes as "intuitions of public policy." The current debate over reforming the federal Superfund law illustrates the importance of examining these societal imperatives and...

Positive political theory (PPT) models of agency policymaking contend that politicians use the tools of ex post and ex ante control to overcome some of the agency problems associated with delegation (such as the inability to foresee the issues the agency will face), in part by enlisting interest groups in the battle to control agencies. PPT models...

In recent years, there has been a noticeable shift in some of the literature on political control of the administrative agencies, away from an emphasis on agency autonomy and toward the view that politicians can and do exert significant amounts of control over agency decisions. This shift has been particularly evident in the mainstream political sc...

This work addresses the question of how effectively elected politicians can exert influence over the policy choices of regulatory agencies. I use environmental policy decisions made by the Federal Energy Regulatory Commission ("FERC") in its hydroelectric licensing program to test several competing hypotheses from the political control literature....

Theory: We extend research on the electoral connection ''beyond'' the modern Congress to the Congress of the early 1800s. Our analysis shows evidence of individual accountability in voting on the Compensation Act of 1816 and in decisions to run for reelection in the 1816 election. Hypotheses: An electoral connection should produce a marginality eff...

Direct regulation mandating control, cleanup and other requirements for what used to be known as "industrial waste" imposes heavy enough burdens. But the limitations of such chemical-by-chemical or wastestream by waste-stream approaches—cumbersome rulemaking, lack of knowledge of feasible control technologies, and the resources required to regulate...

The production of natural gas from formerly inaccessible shale formations using hydraulic fracturing has expanded domestic energy supplies, lowered prices, and could stimulate the replacement of dirtier fossil fuels (coal and oil) with cleaner natural gas. At the same time, shale gas production has proven controversial, triggering intense oppositio...