In this episode we continue our consideration of what Bill Massey in our first episode this season called "the battle of the statistics" between monopoly and competition advocates. We talk with Michael Giberson, an economist and senior fellow for energy with the R Street Institute, who notes the importance of taking statistics into proper context when attempting to contrast between monopoly utility regulation and competitive markets – particularly the need to account for the impact of inflation when looking at changes in electricity prices over time.

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Since the dawn of retail energy competition a quarter century ago, various factions pro and con have engaged in a "battle of the statistics" (as former FERC Commissioner Bill Massey termed it in Episode 1 of this season) regarding the benefits that consumers – particularly residential customers – obtain from competition in retail electricity service. Mostly, these statistical arguments have centered around price savings that residential consumers may or may not have obtained from having a competitive choice in energy suppliers.

In this episode, we hear from Constellation Energy's Rich Spilky, who on behalf of the Retail Energy Supply Association breaks down for us the body of RESA-sponsored work by the late former Illinois utility regulator Phil O'Connor that objectively sought to identify the consumer benefits of customer choice over time, with the price data adjusted for inflation. Spilky assisted O'Connor in these data analyses, which sought to objectively identify which states had effective retail energy competition, and to use federal government statistics to compare the performance of those retail choice states against that of states that retained traditional monopoly price regulation.

The results have been compelling. For both studies that Spilky assisted O'Connor in preparing – Restructuring Recharged and The Great Divergence – as well as in the analyses that Spilky has conducted independently since, this objective methodology has shown that electricity consumers in the 14 jurisdictions with effective customer choice have generally experienced downward price trends while their counterparts without choice in monopoly states have generally experienced upward price trends. 

The analyses clearly show "there's something good going on in the competitive states, pricewise and cost-containmentwise, that's not happening in the monopoly states," Spilky says.  "I think it's remarkable."

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The Biden administration in January announced a pause in reviewing export permits for liquefied natural gas (LNG) in order to better understand the impacts that the United States' world-leading LNG exports will have on domestic natural gas prices, climate change, and environmental equity. Could the pause threaten the U.S.'s position as the world's top LNG supplier? 

Charlie Riedl, executive director of the Center for LNG, speaks to the the national security implications of the administration's pause – U.S. LNG was instrumental in Europe's pivot away from Russian gas in the wake of the Ukraine invasion – and says the regulatory action has prompted concerns among European allies and buyers regarding the reliability of the United States as an energy supplier. 

The economic and environmental impacts of LNG exports have been studied and restudied, says Riedl, who sees election-year politics prompting the announced review.  Given today's record-low prices for natural gas in the U.S. and the projected impact of the Environmental Protection Agency's recently finalized methane emissions-monitoring rules, the outcome of the new review should be a net positive for the industry, he suggests.

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The debate over the benefits of competition for energy consumers has persisted since the advent of retail competition for electricity and natural gas more than two decades ago. Consumers are stuck in a limbo between traditional monopoly regulation and competitive choice because the movement to deregulate energy pricing (much as most other formerly price-regulated industries were deregulated decades ago) has stalled in the wake of the catastrophic collapse of California's disastrously ill-designed market at the turn of the century.

Ever since, competition advocates have sought to expand the dozen or more states where competitive energy supply is available to consumers, but mostly have been thwarted in the face of monopoly utilities' deep-pocketed opposition.  Today, emboldened monopoly utility interests, along with well-meaning but misguided consumer advocates, are supporting legislation in at least two states – Maryland and Massachusetts – that would effectively end competitive retail energy supply choices for residential customers.

Travis Kavulla,  vice president of regulatory affairs at NRG Energy, is on the front lines of the battle by competitive energy suppliers to preserve customer choice for residential consumers. The former Montana utility regulator discusses the headwinds in states like Maryland and Massachusetts, but also the opportunities to expand retail energy choice in other states – such as South Carolina and Louisiana – where elected officials seek to reign in the increasingly higher costs their constituents pay to monopoly utility suppliers for electricity and natural gas.

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Our discussion continues with David Doniger, Natural Resources Defense Council senior attorney, who notes that flexible market-based emissions cap-and-trade programs have been applied somewhat ubiquitously to address a range of environmental issues, from eliminating lead in gasoline, to combatting acid rain, to phasing out ozone-depleting chemicals – even to allocating catch limits for herring, an issue incidentally connected to cases now pending before the Supreme Court challenging the long-standing legal precedent known as the Chevron doctrine.

But Congress and the Supreme Court have rejected attempts to apply this flexible market-based approach to controlling greenhouse gas emissions. Today, few in Washington even attempt to suggest emissions cap-and-trade as a response to greenhouse warming, and instead call for Congress to put a "price" on carbon. But Doniger notes that putting a price on carbon involves establishing a new tax, and he doesn't see a carbon tax gaining traction among Republicans in Congress.

"I don't think we're going to see carbon taxes because the one whole party has become the anti-tax party. It's a dead letter to one whole party," Doniger says. But he does see merit to cap-and trade, and points to bipartisan congressional agreement in 2017 to employ cap-and-trade in phasing down ozone-depleting HFCs. 

"There is life in the old cap-and-trade design yet," Doniger says. "There are variations of emissions trading that we continue to promote because the flexibility reduces costs for industry and therefore lets them reach farther for the same total regulatory costs."

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Who better to discuss the ramifications of the Supreme Court's apparent path toward striking down the long-standing legal precedent known as the Chevron doctrine than the lawyer who argued the original case 40 years ago?

Natural Resources Defense Council Senior Attorney David Doniger is a lion of the environmental movement who has been instrumental in the environmental group's efforts to rein in air pollution from fossil fuels and emissions of ozone-depleting chemicals. He has been a fixture at the NRDC since 1978, except for the years during the Clinton administration when he played key environmental roles at both the White House and the Environmental Protection Agency.

Doniger discusses recent oral arguments before the Supreme Court  in a case challenging the Chevron doctrine and the ramifications of unwinding the regulatory deference legal principle. We also discuss the history of efforts to regulate carbon emissions that contribute to climate change, and how a key Supreme Court decision blocked the government from adopting economically efficient solutions and limits the Environmental Protection Agency to promoting technology-based solutions in a rulemaking expected to be finalized in the coming months.

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Energy lawyer and law school professor William Massey, at 10 years the longest-serving commissioner ever at the Federal Energy Regulatory Commission, discusses the vast body of legal precedent finding FERC has expansive authority under the Federal Power Act and Natural Gas Act, and reviews pending cases before the Supreme Court that may test whether this expansive view of FERC's authority will continue under the court's new Major Questions Doctrine.

"The courts have said FERC’s authority is at its zenith when it comes to remedying undue discrimination. And FERC has remembered that and bases many of its policy choices on finding undue discrimination in either natural gas or electricity markets," Massey says. "We'll have to wait and see whether this Major Questions Doctrine, as it plays out over the next few years, whether it limits FERC’s authority in certain ways."

Massey also speaks to FERC's early days restructuring natural gas and electricity markets in the 1990s, the vast economic benefits that consumers have accrued as a result, and suggests that opening up the electricity sector to greater competitive forces will help policy makers bring about the clean-energy transition in response to the climate change threat at least cost to consumers.

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The world's burgeoning billions have been kept fed thanks to the "Green Revolution" of the 20th century, which featured new hybridized crops with enhanced yields. Often deemed a miracle of science, it was also made possible by energy-intensive industrial fertilizers. Fritz Haber and Carl Bosch were each awarded the Nobel Prize for their contributions to the widely used processes for synthesizing ammonia from nitrogen taken from ambient air and hydrogen derived from fossil fuels. These ammonia-based nitrogen fertilizers, along with mined fertilizers, today help to feed the world, something Thomas Robert Malthus never envisioned in his 18th century writings warning of overpopulation. 

Today we are concerned with another green revolution that seeks to end the use of fossil fuels, which when burned create emissions that are dangerously warming the atmosphere and creating the need for a second agricultural revolution to ensure the world's billions can still be fed in the face of drastic climatic extremes. So as we look to decarbonize the world's economy and phase out the use of fossil fuels, what is the fertilizer industry doing to green its highly fossil fuel-dependent industrial and mining processes?

We talk with Alzbeta Klein, CEO of the International Fertilizer Association, freshly returned from COP28 in Dubai, where for the first time the world's nations agreed to the need to phase out fossil fuels to temper the runaway climate change we are experiencing. "Food is energy, and we need to understand that connection," Klein says. "We need to understand the transition for the energy markets, and we need to understand the transition for the food market because the two go hand-in-hand."

We also hear from Hiro Iwanaga of Talus Renewables, a nitrogen fertilizer startup at the forefront of using photovoltaics to crack hydrogen from water, rather than fossil fuels. Also freshly returned from Dubai, Iwanaga talks about his company's demonstration project now under way in Kenya, and the company's next projects here in the United States. "The green hydrogen tax credit that was passed as part of the Inflation Reduction Act makes our product cost-competitive," he explains.

Also, Brandon Kail of Rocky Mountain BioAg speaks to his company's approach employing soil microbes as the foundation of a non-fossil fuel-based approach to plant nutrition, and Divina Gracia P. Rodriguez of the Norwegian Institute of Bioeconomy Research tells us about an EU-funded project in Ethiopia she is spearheading that seeks to address barriers to the adoption of human urine-based fertilizers.

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Matthew Hunter was a power trader in the Western market in 2000, when California's poorly designed and managed electricity market imploded costing consumers hundreds of millions of dollars. After that, he spent much of his career at the Federal Energy Regulatory Commission and the Commodities Futures Trading Commission. He gives us a deep dive into hedging – futures markets, derivatives and swaps – and how these complex price-risk mechanisms don't necessarily protect consumers in the end.

A leading reason that California's market failed so spectacularly was because state law prohibited the state's Big Three utilities from hedging their price risk. At the height of the resulting energy and financial crisis, California officials rebuffed FERC's recommendations to allow the utilities to hedge their spot-market risk, and instead intervened in the market to purchase long-term power at crisis-inflated costs, saddling the state's consumers with those costs for the last two decades.

Fast-forward to the extreme weather-induced collapse of the Texas market in 2021, and Hunter predicts that, as in California, consumers will be again stuck with the tab. Hedging instruments are generally pegged to a price index for the commodity, and Hunter asserts that, in Texas, unreasonably high natural gas index prices translated to the price indices for electricity, contributing to the dramatic escalation in electricity prices.  Hunter objects to consumers being the backstop for financial losses incurred by speculators in the market.

"If you go from a nominally and totally reasonable . . . gas price to an unreasonable gas price that then transfers itself to an unreasonable power price through contract terms of index-to-index, then it seems perfectly reasonable to roll back the index gas price to roll back the index power price to something that is reasonable," Hunter asserts. "I am not saying that it shouldn't be a scarcity value (but) there's no reason for gas even under scarcity conditions to be twelve hundred dollars per MMBtu or a thousand dollars."

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State Senator Tom Davis of South Carolina is a rare breed in politics today. At a time when no other state is actively considering competitive reforms to their traditionally monopoly-regulated utility sectors, and many politicians in states already benefiting from competition in electricity are promoting anticompetitive measures, he is leading the push for his state's consumers and economy to benefit from greater customer choice and competition among electricity providers. 

The Republican lawmaker discusses how the multibillion-dollar V.C. Summer nuclear debacle in South Carolina in 2017 jolted him and other Palmetto state lawmakers to take a deep dive into utility regulation. He provides specific details of the electricity reform legislative proposal he will unveil Nov. 30 for consideration by the Legislature during next year's session. A political pragmatist, Davis looks to move the entrenched monopoly steamship by degrees.

"The ideal at the end of the day is going to be a system where providers have to compete and the ones that can generate power most efficiently and most cheaply and most reliably win, and that consumers have choices on their side," Davis says. But he suggests it's not politically realistic to think the ideal outcome can be accomplished in one fell swoop.

"I think it's important for us to move incrementally" in pursuit of the ideal during next year's legislative session, Davis says. Calling politics "the art of the possible," he described a legislative process that ponders, "What can we get across the finish line? What can we get out of subcommittee and full committee and if it gets to the floor, what can we do to overcome anybody who wants to object or to filibuster?"

With 2024 being an election year, Davis says he is hitting the ground running to  accomplish legislative objectives before campaigning and politics become a distraction. "2024 is going to be an incredibly busy year from an electoral perspective. And so that's why it's important right now . . . to focus on some of these issues before we all get swept up in the politics of campaigns and elections," he says. "It's important to dial our energy into, and our focus into, what are some important public policy reforms to accomplish in 2024. That's why I'm placing so much emphasis on this right now because I do think there's a window of opportunity for us."

Regardless of how far along the continuum to a competitive ideal the legislative process allows for next year, it won't be the endgame, Davis suggests, promising that subsequent legislative sessions will see further efforts to reform the state's electricity sector to produce better outcomes for consumers by moving the state ever further along the continuum to a competitive ideal. "It's absolutely essential that we bring to bear on that system of power generation more market forces, more competition, because you're not going to get the best technologies, you're not going to get the lowest costs, you're not going to move toward what I think is a better future if you don't have that dynamic working in that space."

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