Columbia Law Review
Sharon B. Jacobs, Agency Genesis and the Energy Transition, 121 Colum. L. Rev. 835 (2021), available at https://scholar.law.colorado.edu/articles/1329.
Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.
This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. At the federal level, setting up agency rivalries within the executive branch can be an effective tool for mitigating presidential power. But new state agencies have sometimes enhanced, rather than countered, gubernatorial authority.
State energy policy offers a compelling context in which to explore questions about agency genesis. Energy-agency creation in the states is a story of addition, beginning with public utility commissions in the early 1900s and culminating in the contemporary creation of new boards and bodies to manage the transition to a just, low-carbon energy economy. Drawing on the political science and public administration literatures, this Article explains the observed patterns of energy-agency creation and analyzes their effects on state energy governance. It offers prescriptions for managing multiple agencies in the same policy domain. And it cautions that the allure of agency genesis should not preclude reform of existing institutions.
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