The age of climate change is upon us, but regulations and programs intended to decarbonize the electricity sector have been effectively stymied by utilities defending their monopoly power. The lack of robust antitrust enforcement against the utilities to date is a result of the belief that regulation is sufficient to police monopoly anticompetitive activity, that the natural monopoly structure of utilities makes them a poor fit for antitrust principles, and that the utilities are immune from Sherman Act claims under the state action exemption. But these rationales reflect a misunderstanding of the purpose of public utility law and its preference for monopolies, and the exemption is narrower than many realize. To provide much-needed clarity, this Article advances a framework to guide the application of state and federal antitrust law to electric utilities. In doing so, it is the first to use the moral economy lens to counter the economic narratives that have contributed to persistent beliefs that protection of the monopolies is necessary for a functioning electricity industry. Understanding the economic organization of the electricity sector through moral economy principles explicates the normative social outcomes that monopolies in the public utilities sphere were intended to achieve. These norms challenge the long-promoted view of electricity utility monopolies as an economic inevitability and provide guidance to the Department of Justice, state attorneys general, and injured par- ties who wish to bring antitrust claims against monopoly utilities.
Kristen van de Biezenbos (Wed,) studied this question.