Utility Regulation Through Legislation: A Cautionary Tale for Legislators, Regulators, Stakeholders, and Utilities

Abstract

State legislatures in the U.S. are becoming increasingly involved in utility regulation. While state utility legislation can expand regulator authority, for example in the case of renewable energy or energy efficiency standard administration, it can also reduce it. Given the challenging nature of for-profit monopoly regulation, state utility legislation often reduces regulator authority unintentionally. This editorial begins with an examination of the outcomes of state legislation related to baseload generation in the U.S. and the resulting impacts to customers, shareholders, and state economies. The record indicates that utility regulation through state legislation has caused significant economic harm, generally by encouraging for-profit utilities to make riskier investments. A description of more recent state legislation involving distribution grids is presented, along with evidence that increases in grid investment encouraged by state legislation has not improved the reliability of U.S. for-profit utilities. The authors claim that features common to state utility legislation, particularly the requirement that utilities provide investment plans to regulators in advance, practically eliminates cost disallowance risk. This, in turn, reduces regulator authority despite legislative provisions intended to protect consumers. The authors hypothesize that the practical elimination of cost disallowance risk, combined with information and expertise asymmetry among regulators and stakeholders, encourages for-profit monopoly utilities to make grid investments that are not cost effective. The editorial concludes that legislators should avoid utility regulation through legislation, thereby preserving regulator authority, whenever possible. The authors also present their fifth annual Customer Value Ranking of U.S. investor-owned electric utilities. The ranking represents a comparison of the benefits utilities deliver to customers (measured by reliability performance and customer satisfaction) to the costs customers pay (measured by O&M and capital spending per customer).