ENERGY
Laws and regulations concerning the production and distribution of energy have existed for over one hundred years in the United States. Energy law became recognized as a specialty following the energy crises of the 1970s. It focuses on the production, distribution, conservation, and development of energy resources like coal, oil, natural gas, NUCLEAR POWER, and hydroelectric power.
In 1876, the U.S. Supreme Court, in Munn v.
Illinois, 94 U.S. (Otto) 113, 24 L. Ed. 77, held that
“natural monopolies” could be regulated by the
government. Munn concerned grain elevators
but stood more generally for the principle that
the public must be allowed to control private
property committed to a use in which the pub-
lic has an interest. This legal recognition of nat-
ural monopolies provides the basis for much of
the legal and regulatory control the government
exercises over utility companies.
The regulation of energy in the late 1800s
was on a local and regional level, and was pri-
marily market driven. The transition from using
wood as a primary source of energy to using coal
was almost complete, and a second transition
from coal to natural gas and oil was beginning.
In 1900, Standard Oil Company controlled
90 percent of the oil market; within a few years,
antitrust litigation had reduced its market share
to 64 percent. Aside from antitrust enforcement,
the federal government was content to let the
market control the energy industry. Oil, coal,
and natural gas found their greatest structural
impediment in the “bottleneck” of distribu-
tion—pipelines for oil and natural gas, and rail-
ways for coal. The dominant model of energy
policy that emerged from this period and existed
unchanged until the 1970s was one of support
for conventional resources and regulation of
industries whose natural monopolies required
some government oversight to ensure that their
public purpose served a public interest.
On October 17, 1973, the Organization of
Petroleum Exporting Countries (OPEC)
announced an embargo of oil exports to all
countries, including the United States, that were
supporting Israel in the Yom Kippur War. Only
approximately 10 percent of the United States’
oil imports were affected, but the perception of
a major oil shortage motivated the next three
presidential administrations to exert a strong
federal influence over energy.
President Richard M.Nixon created the Fed-
eral Energy Office (Exec. Order No. 11,930, 41
Fed. Reg. 32, 399) and appointed an “energy
czar” to oversee oil supplies. President Gerald R.
Ford’s administration saw the passage of the
Strategic Petroleum Reserve (42 U.S.C.A.
§ 6234) and the promulgation of minimum effi-
ciency regulations for automobiles. In 1977,
Jimmy Carter’s administration created the
DEPARTMENT OF ENERGY (42 U.S.C.A. § 7101),
which was the framework for the coordination,
administration, and execution of a comprehen-
sive national energy program.
The goal of a comprehensive national energy
program was achieved with the passage of the
National Energy Act of 1978, which consisted of
five distinct pieces of legislation. The National
Energy Conservation Policy Act (42 U.S.C.A. §
8201 et seq.) set standards and provided financ-
ing for conservation in buildings. The Power-
plant and Industrial Fuel Use Act (42 U.S.C.A. §
