f the many barriers to clean energy development discussed in the literature, the power of the status quo is not normally one of them. Yet beyond the need for more transmission lines, the need to decouple electricity sales from revenue, or the need to amend our environmental laws to more fully capture the externalities of energy, efforts to develop clean energy are faced with over a century of institutional “stickiness” associated with the legal and regulatory framework governing energy. This article explores how path dependency theories can inform the practical legal efforts to overcome such stickiness, identifying the troublesome approaches to energy problems, decision rules, and relationships governing energy law that are perpetuating fossil fuel energy. Alternatively, it sets forth a new framework for facilitating an evolution in logic and creating positive feedback mechanisms to propel clean energy out of its sticky history into a more fluid twenty-first century.
Amy L. Stein, Breaking Energy Path Dependencies, 82 Brook. L. Rev. 559 (2017). Available at http://brooklynworks.brooklaw.edu/blr/vol82/iss2/7