Publication Date

Summer 2022


It is well-documented that fossil fuel infrastructure—and its attendant health and safety effects—is disproportionately located in and near Black, Brown, and low-income communities. This Article explores the role of a key administrative proceeding—the utility “rate case”—in facilitating this inequitable distribution of environmental burdens. In theory, the utility rate case process enables regulatory oversight of proposed changes in gas and electric utility companies’ fees and investments. But in an energy system centered on investor-owned monopoly utilities, the rate case process is the mechanism by which these companies ensure their continued ability to secure profits at the expense of a captive market. Using as a case study the efforts of investor-owned utility National Grid to build a massive gas pipeline and associated Liquefied Natural Gas infrastructure in Brooklyn, New York, this Article contends that utility rate cases in New York State are characterized by procedural injustice. Specifically, public notice requirements are woefully insufficient; utility companies have the power to set the rate case agenda and frame the terms of the debate about their proposed fees and investments; utility companies are often in exclusive possession of key information; affected communities lack the time, resources, and technical expertise to meaningfully participate in rate case proceedings; and rate case proceedings are driven by “regulatory capture,” that is, utility companies’ manipulation of the regulatory agencies charged with overseeing them. By failing to ensure the full and informed involvement of communities in energy decisions that profoundly affect them, utility rate case proceedings effectively amount to regulatory theater. This procedural injustice facilitates the inequitable distribution of environmental harms resulting from the activities of the utility sector. But attempts to rectify these procedures cannot cure the deeper problem of which procedural injustice is merely a symptom: the private, profit-driven utility model at the heart of our energy system. Such a model is fundamentally incompatible with environmental and energy justice and must be replaced with an alternative, publicly owned energy system.

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.