Freeman on the Uncomfortable Convergence of Energy and Environmental Law

In her latest Harvard Environmental Law Review article, Archibald Cox Professor of Law Jody Freeman examines the relationship between energy and environmental law, two historically disparate fields, which some scholars suggest have been “converging” in recent years.

Freeman offers a more tempered view, arguing that true “convergence” between energy and environmental law remains elusive. Using detailed examples from some of the most prominent FERC and EPA rulemakings of recent years, she shows how energy and environmental regulators have achieved greater policy congruence incrementally and indirectly, but only as a consequence of pursuing their own traditional missions in response to changing economic, technological, and political conditions.

Neither agency has embraced the other’s mission as its own, yet they have achieved a notable degree of accommodation. The most that can be said about the prospects for “convergence,” is that policy alignments in energy and environmental law are possible, but only when the separate imperatives of the two regulators coincide.

Freeman also shows that whatever incremental accommodation has been achieved thus far has not been centrally commanded by anyone—neither the president nor Congress. For its part, Congress has shown no interest in dismantling the structural and statutory barriers that keep the fields separate. And while a president may try to nurture the process of policy congruence, his tools for doing so are limited, and perhaps better suited to hampering it.

Freeman’s article is the most comprehensive and nuanced effort to date to explain what drives the observable policy alignment in energy and environmental law, and to explore the still significant and stubborn barriers to true integration.

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