Harvard Environmental Law Review Forum
Sharon B. Jacobs, Energy Deference, 40 Harv. Envtl. L. Rev. F. 49 (2016), http://harvardelr.com/wp-content/uploads/2016/04/Jacobs.pdf, available at http://scholar.law.colorado.edu/articles/3/.
Electricity law is complex, and the Supreme Court knows it. Lawyers are familiar with the adage that generalist courts tend to defer to agency decisions where the subject matter is complex or technical. But what features of a case make the Court more or less likely to defer to the agency's judgment? And how exactly do deference regimes work in the presence of complexity? This essay offers insights gleaned from Court's opinion in Federal Energy Regulatory Commission v. Electric Power Supply Ass’n (“EPSA”). It explains, first, that Courts are highly deferential in energy cases due to both the complexity of the subject matter and the uncertainty that often surrounds energy decision-making. It then explains how this deference operates in practice, concluding that the Court relies on "deference proxies" to confirm their inexpert intuitions.
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