ELC 2025: Staring Into the Legal Void by Rebecca Bratspies

“down the winding cavern we groped our tedious way, till a void boundless as a nether sky appeared beneath us, and we held by the roots of trees, and hung over this immensity; but I said: “If you please, we will commit ourselves to this void, and see whether Providence is here also.”

--William Blake, The Marriage of Heaven and Hell

When we gathered in New York this July it was under a very red sky. The Trump administration was quickly dismantling our collective life work. Indeed, just weeks after our meeting U.C. Irvine Professor Alex Camacho called Trump the “worst president for the environment in U.S. history.” There we were, at the Edith Macy Center—a group of law professors in a Girl Scout retreat—staring at the wreckage, and trying to recommit to the void by rethinking law entirely. 

I was part of the Rethinking Business group. We convened in a room named after management consultant Peter Drucker. Since Peter Drucker is widely proclaimed as a “visionary whose ideas reshaped management, business, and society” this seemed either propitious or ironic, depending on one’s inclinations. I confess mine tend toward the cynical. Was it even possible to rethink business in a room named for a management guru whose claim to fame was as the father of modern management? 

And yet, it turns out there was much more to Peter Drucker than efficiency. Drawing on his early exposure to Nazi fascism he wrote extensively about what happens when converging crises expose social institutions to be a façade. Drucker described what happened when “the people” discovered that behind the façade was only a vacuum—fear and trauma led them to turn to what he called “the abracadabra of fascism” thereby substituting creed and order for freedom and equality. As Drucker described it, fascism was an end run around the hard work of building a new, better society.  Sound familiar?

For Drucker, the antidote to this kind of social breakdown was stable, responsible institutions. Institutions that were more than a mere façade. His (pretty conservative) ideas about the need to restore community and his commitment to a kind of industrial democracy seems almost radically progressive today. Contrast Drucker’s conviction that there should not be too large an ‘inequality of income between the lowest-paid people and the people in charge’  with today’s self-important billionaires busily dismantling higher education, functioning government, and most social institutions in search of tax cuts (and because they believe it when their mommies declare them to be geniuses.)

Drucker dismissed shareholder primacy and the sole focus on profit maximization as not only antisocial but immoral. When asked if big business was a good role model for good government his response was “no, of course not.” He rejected the idea that a free market is all it takes to have a functioning society—or even a functioning economy—as pure delusion. 

Drucker may have made his reputation and fortune in management, but he considered himself a social ecologist—someone who “envisions a moral economy that moves beyond scarcity and hierarchy, toward a world that reharmonizes human communities with the natural world, while celebrating diversity, creativity and freedom.” That sounded exactly like what we were struggling with in our breakout group. 

And yet, even as we were grappling with this core question, we seemed unable to shake the limits Drucker’s ghost imposed: His commitment to a free market economy;  His opposition to regulation and taxation as tools to limit corporate greed; His belief in the role of the entrepreneur and the dominance of the customer; His conviction that property was a source of legitimacy. Drucker’s widely adopted vision of corporate freedom constricted us, even as his clear-sighted anti-fascism inspired us. We struggled to think past shareholder primacy and to shed the neoliberal straight-jacket that allows corporate persons to become unaccountable transnational actors spouting grandiose but unenforceable ESG measures. Perhaps it was no surprise that our Drucker room brainstorming session produced ideas that Professor Melissa Powers charitably described as “modest.” 

Did it matter that our meeting in the Peter Drucker room took place at the Edith Carpenter Macy Center? Maybe. Edith Carpenter Macy was a staggeringly wealthy woman whose fortune came from the fossil fuel industry. She and her husband V. Everit Macy lived lives of immense privilege, vacationing on Jekyll’s Island and hobnobbing with the rich and mighty. And yet, as active progressives, Macy and her husband also worked closely with the Henry Street Settlement and were deeply involved in local poverty alleviation efforts. Both served on multiple community organization boards, volunteering their time as well as their money. In eulogizing her at the 1925 International Girl Scout Conference that opened the Edith Macy Center, Dr. James Russell, dean of Columbia’s Teachers College remarked “it is said you know that some of us are born with silver spoons in our mouths. And I suppose it could be said of her (Macy) but there are not many in this world who use those spoons to feed the hungry multitude.”    

While there was an overwhelming noblesse oblige flavor to some of her activities, Macy seems to have really made a difference. Her involvement with the Girl Scouts began with a generous monetary donation. That first contribution led her headlong into the hard work of building and leading the new organization.  Herself a suffragist, Macy’s first act as leader of the Girl Scouts (a position she held from 1919 until her death in 1925) was to get girls and young women involved in the campaign to pass the 19th Amendment. Unlike so many of the ultra-rich today, Macy turned her privilege into tool—leveraging her wealth and influence toward building a better, fairer society with more opportunities for more people. When Macy died suddenly in 1925, her husband created the Macy Center in her honor—donating the land and funds so the Girl Scouts would have a world-class training center. To this day the Macy Center provides that service.  

A generation after Macy’s death, Peter Drucker became an avid supporter of the Girl Scouts. He viewed the organization as “remarkable.” In a society “that pretends to care about its children but does not” Drucker saw the Girl Scouts giving every girl the chance to learn and grow and thrive. The Girl Scouts, in turn, incorporated Peter Drucker’s leadership ideas into their mission and have long extended their welcome to “anyone who identifies as a girl.”  Today Troop 600 reaches girls living in NYC shelters, as well as immigrant and asylum seeking girls—enfolding them into wider the Girl Scout community and offering them the same activities, opportunities, and training available to other New York girls.

A collaboration between Peter Drucker and former Girl Scout CEO, resulted in an initiative intended to “redefin[e] the social sector as an equal partner in business and government.” This organization, now called the Francis Hesselbein Leadership Institute,  involved melding their missions in an attempt to transform the world by “developing responsible leaders, caring citizens, and a healthy, diverse and inclusive society.”  That sounds a lot like the same questions we were grappling with in July 2025.

Hmmm. Focusing on youth involvement, leveraging privilege for social change, rejecting fascism, and emphasizing commitment to social institutions? Maybe meeting in the Peter Drucker room at the Edith Macy Center was less ironic and more inspirational after all. While we obviously need to rethink their solutions and question the first principles that so limited our ability to brainstorm, we can certainly learn from their commitment to building a better world. In a time when we so desperately need hope, their accomplishments provide a welcome reminder that individual creativity, and vision, paired with social solidarity can make a real difference—even in times of great social turmoil. As we try to recreate environmental law in this era of federal lawlessness, this reminder is both timely and inspiring.

Rebecca Bratspies is the Oliver Houck Chair in Environmental Law and Professor of Law at Tulane University Law School.

ELC 2025: A Blue-Sky Future Owned by Private Equity? By Kristen van de Biezenbos and Melissa Powers

In July, 2025, the New York Times reported on moves by two major private equity companies, BlackRock and Blackstone, to acquire electric utility companies. BlackRock had proposed purchasing Minnesota Power, which primarily serves business and residential customers in the northern part of the state, while Blackstone had already acquired TXNM Energy, which serves customers in New Mexico and Texas. Both companies appear to be scooping up the utilities in anticipation of a major increase in energy demand driven by data centers, AI, and cryptocurrency mining. While experts have long predicted a stagnation or decrease in future U.S. electricity demand, the explosion of interest in AI and crypto has dramatically revised those estimates. Some models now forecast that these technologies will cause demand to surge where the data centers and crypto facilities are located, and private investment companies want in on what some believe will be a “gold rush” in the electricity sector. This gold rush has threatened the U.S. electricity system’s progress in decarbonizing—progress that had demonstrated to many that blue skies are possible. It also raises profound concerns about who will profit and who will pay as private asset managers see the appeal of buying up utilities. 

To understand these risks, it helps to have a very brief background on utility regulation. Energy utility companies, like other “public utilities” (a term that, confusingly, refers to primarily privately owned companies with a duty to provide services in the public interest), are authorized to operate energy monopolies that would otherwise be illegal under U.S. law. In exchange for the government allowing them to maintain their monopolies, energy utility companies are subject to various legal requirements, including a duty to provide nondiscriminatory service to customers within their service territories, regulation of the rates the companies charge, and regulatory oversight of the utilities’ expenditures. State regulators set the rates by first determining how much a utility needs to earn annually and then dividing that amount by anticipated energy sales to different customer classes, which typically include residential customers, industrial customers, and commercial customers (each of which can be subdivided into more specific groupings). The annual earning requirement is established through a “cost-plus” formula that allows the utilities to earn a rate of return on their capital expenditures (i.e., to profit from building infrastructure) and to recover—but not directly profit from—their operating expenses, including the cost of fuel and customer service. In concept, this ratemaking structure allows utilities to earn enough profit to maintain their financial integrity and attract sufficient capital to build the infrastructure we need, while keeping rates affordable for consumers. And, again in theory, regulatory oversight ensures that customers get adequate service and are protected against utility risk-taking.

 In practice, the regulatory system has always been vulnerable to regulatory capture and, perhaps more insidiously, a power imbalance that favors electric utility companies. Their rates of return are excessive—and not because the market has over-valued utility companies but because rate regulators set the returns too high, requiring customers to pay excessive rates to the utilities. According to one analysis, energy utilities’ rates of return (and thus returns on equity) are twice their cost of capital, and the average return on equity for the utility sector is 43% higher than the average return of Wall Street investment firms. 

No wonder Blackstone and BlackRock want in on the utilities’ action! 

And when things go wrong—if past investments become unnecessary before they are fully paid off (i.e., they get “stranded”) or fuel prices become higher than expected—customers, rather than utilities or their shareholders, end up paying the price. Worse, when better and cheaper alternatives to the utility’s service become available, customers are often legally prohibited from choosing the alternatives. Imagine how much worse that power imbalance will be when asset managers like Blackstone and BlackRock—which have mastered the art of extracting income from infrastructure that we, the public, have paid for—gain ownership over the electricity system and benefit from monopoly power.

 In fact, it does not take too much imagination to identify the risks. Consider, for example, the current AI, cryptocurrency, and data center boom. Utilities want to build new power plants (and earn elevated rates of return) to serve the growing energy demand, but they want to spread the costs of those plants among all ratepayers—basically requiring all customers to subsidize the tech industry’s AI dreams and leaving ratepayers responsible for stranded assets if AI and cryptocurrency operations go under. Some states have refused this gambit, but the Federal Energy Regulatory Commission (FERC) went the other way, denying a utility’s attempt to protect other customers from the risks of building new power plants to supply electricity to speculative cryptomining operations. For now, state and federal policies are working in parallel, but one could easily imagine a global asset management firm insisting upon a uniform federal policy that overrides state attempts to prevent this cross-subsidization.

Increased ownership of utilities by Wall Street asset managers could also interfere with states’ climate goals, particularly since Congress rescinded most of the Inflation Reduction Act’s clean energy subsidies. As William Boyd noted, large multinational companies (the so-called “Clean Energy Supermajors”), large financial institutions, and large asset managers were poised to “extract substantial profits” from these subsidies–while figuring out ways to keep our energy prices high. When the subsidies go away, profit opportunities will lie in building massive projects as quickly as possible to serve the tech industry’s energy appetite–which means building or restarting fossil fuel plants. And once these assets are built, the firms will have every incentive to keep marginal wholesale prices high by ensuring that wholesale energy markets are designed to exclude renewable energy sources. The disturbing retreat from corporate climate commitments, we believe, will only accelerate if Wall Street firms, which are isolated from communities clamoring for decarbonization, become the owners of energy utility companies.

And, finally, there is the risk that increased Wall Street ownership will threaten grid reliability and increase prices due to the change in utility management. Companies focused on arbitrage opportunities in the electricity sector have engaged in market manipulation and economic withholding, exposing consumers to elevated prices as companies intentionally made their energy supplies scarce. It was only 25 years ago when Enron’s economic withholding and other corrupt acts, which a network of other private and public actors enabled, drove California utilities into bankruptcy. While regulations and market rules have aimed to limit the risks of future illegal acts, research indicates the risks are still very present. 

But even as the risks of investment firm takeovers of public utilities are rising, the guardrails to prevent abuses of regulated rates—and guaranteed profits—of utility companies have been dismantled. The first (and strongest) line of defense was the Public Utilities Holding Companies Act of 1935 (“PUHCA”). Congress enacted PUHCA after holding company conglomerates monopolized ownership of local electricity utilities and used the corporate structure to extract value for investors while loading the utilities with risk and debt. PUHCA gave the Securities and Exchange Commission the ability to review any purchase of more than 10% of public utility shares, to impose strict guidelines, and even to impose a “death sentence” by breaking up holding company ownership of public utilities. This came about after one of the largest holding companies—which owned electric utilities in 39 states—went bankrupt, leaving thousands without power and wiping out the savings of its investors. PUHCA instituted numerous regulatory reforms, including restrictions on complex businesses and financial arrangements between regulated and non-regulated affiliate companies. But despite its success in preventing holding company manipulation of public utilities, PUHCA was repealed in 2005. 

Since the repeal, there has been an increase in holding company acquisition of utilities and an uptick in utility fraud, corruption, and bribery charges. More broadly, evidence suggests that regulators cannot or will not adequately regulate corporate conduct that impermissibly extracts value from and shifts risks onto regulated utilities. Private equity is subject to almost no regulatory oversight, so risks to utilities and their customers may increase when private equity firms take over regulated utilities. It is little wonder that private equity acquisitions have raised red flags. With respect to the BlackRock deal, ratepayer advocates and environmental groups opposed the acquisition, fearing it would drive up rates and slow progress on decarbonization. It also came to light that many Minnesota Power employees and board members who voiced support for the takeover were provided with financial compensation from the utility, likely fueled by the financial incentives offered by BlackRock. Despite the opposition and indications of shady dealing, the Minnesota Public Utility Commission (“PUC”) approved the acquisition. We believe it erred. When firms that prioritize profits and investors’ returns over all other concerns seek to acquire utilities, we should be concerned about the potential harm to captive ratepayers. 

So, what can be done to stop these takeovers? First, it is time for Congress to restore PUHCA in full. Second, states have the authority to deny merger requests that they deem to not be in the public interest. In fact, an administrative law judge recommended the state deny BlackRock’s takeover of Minnesota Power because of the risks it presents to ratepayers. Time will tell whether the PUC made the right choice. In the meantime, we hope other regulators will closely scrutinize proposed acquisitions and recognize that the electricity system is both too fragile and too important to be treated like other assets that asset management firms have gobbled up. Finally, to the extent local electric utilities are vulnerable to outside acquisition, that may signal that states need to step in and support public ownership of their own electric utilities. Allowing them to become just another holding in asset managers’ massive investment portfolios is a way to lose even more control of an essential service. 

More broadly, private equity’s entry into the electricity system should lead us to question how we pursue our blue-sky future. Private equity firms have become enormously wealthy, often employing a “plunder” business model of buying companies, loading them with debt, stripping them of their value, and then reselling them or liquidating them through bankruptcy. Through their profit-extraction model, private equity firms have destroyed storied businesses; delayed investments in infrastructure; cut services, wages, and employment; reduced tax bases for local communities; and refused to provide health care and other essential services. Utilities and utility regulators may be tempted by the capital that private equity investment could provide—some of which could presumably facilitate quicker decarbonization. Is this capital worth the risks? Electricity consumers in Minnesota, New Mexico, and Texas may be about to find out.

Kristen van de Biezenbos is a Professor of Law at California Western School of Law.

Melissa Powers is a Jeffrey Bain Faculty Scholar & Professor of Law at Lewis & Clark Law School.

ELC 2025: Blue Sky Thinking in a Red Sky World: The Story of Environmental Law by Cinnamon Carlarne Hirokawa

“Red Sky at Morning tells a story, and we are its authors. The plot is driven by human propagation and poverty and even more by a vast and growing world economy. There is a beleaguered heroine, Mother Earth. The story’s ending has not yet been written. There are two possible outcomes, one tragic and one not. A global crisis has unfolded quickly, and, as in classic Greek tragedy, we have been told what the future may hold, but so far we seem unable to step from the path to disaster that has been mapped out for us. The last act is about to begin.” James Gustave Speth, Red Sky at Morning 1 (2004).

The last act has now begun. We stand at the edge of the world (flat now, according to many) staring out across a seemingly endless red sky at morning. A sky that sailors say is a warning of ominous weather. A warning of a sky filled with particulate doom. A warning that sailing or, in our case, living and breathing, is not safe. 

More than two decades ago, when visionary environmental leader Gus Speth offered his prophetic warning of the impending global crisis – of the red sky at morning – we had extensive evidence of the intersecting impacts of global environmental deterioration and the primary anthropogenic drivers of this deterioration. At that moment, Speth and others offered a reimagining of global environmental governance – a blue-sky vision of how we could lead ourselves off the disastrous path by embracing a broader vision of environmental governance that engaged questions of intersectional social, political, and economic well-being, that widened the purview of players to imagine a more inclusive group of environmental protagonists (e.g., civil society and the private sector), and that advanced a new vision for how we see ourselves in relation to our beleaguered planet. The vision was inchoate but possible, premised on learning from the mistakes of the past and embracing a transformative transition in culture and consciousness.   

Over the decades that followed, we made great gains. The climate justice movement blossomed. Links between climate change and human rights were identified. Courts all over the world have begun to recognize legal rights and obligations with respect to climate change, rights of nature, and more. Despite notable points of progress, however, the fundamental transition that Speth envisioned did not come to pass and global environmental deterioration continues to intensify. Biodiversity loss is accelerating at unprecedented rates. Patterns of deforestation and pollution burdens (air, water, plastics) persist. And looming over us all is the harsh reality of unabated anthropogenic climate change and the associated slow- and sudden-onset disasters and extreme events that, by now, are inevitable. One by one, we are surpassing our planetary boundaries and narrowing the spaces deemed safe for human existence.    

Which is all to say that we are now in the midst of the Greek tragedy of which Speth warned. We live today in full vision of the political, economic, and environmental crises that were mapped out before us decades ago. Only now, the contours of the tragedy are even more extreme than Speth could have imagined in 2004. Few could have foreseen the specter of the current political administration’s rejection of science, rollback of environmental governance, and denunciation of tolerance, transparency, and participation. 

These are the contours of our contemporary crisis. A crisis where the extreme challenges of global environmental deterioration meet the calamitous social, political, and economic challenges of our time to create an absurdly existential tragedy of our own making. As we stand staring into the void of what could be our last act, hope seems distant and joy even more so. But, in July 2025, when 17 environmental law professors came together in New York over the course of three days to discuss “Blue Sky Thinking in a Red Sky World”, there was little doubt that despite great fears, frustrations, and uncertainty, there was a unifying commitment to resistance and re-imagining. Embracing a plot of resistance and re-imagining means working together to resist the erosion of our environment and our democracy. It also means coupling these efforts with a commitment to re-imagining what it would mean to create a world where Mother Earth is not beleaguered and where all her inhabitants are able not merely to survive, but to flourish. 

These commitments echo the story of environmental law – a story grounded in optimism amidst adversity and heralded by protagonists of resistance and positive change. A story where courageous scientists such as Rachel Carson melded science with storytelling to motivate change against powerful industrial opposition; where bold and persistent leaders such as Wangari Maathai overcame great odds to revolutionize action at the intersection of economic progress, social change and environmental protection; where environmental law pioneers such as Joe Sax, David Sive, Gus Speth, and Robert Bullard drove the creation of an extensive system of environmental law and centered thinking around essential questions of environmental justice; where, now, a new generation of courageous youth and climate justice leaders are advancing transformative change against all the odds. The story of environmental law has always been one of courage, innovation, and persistence against seemingly intractable structures of power and opposition. 

We are at a point in the story of environmental law where the plot may have thickened but, as ever, the end is not inevitable. In this moment, environmental law protagonists must embrace the imperative of blue sky thinking – that is, thinking that is creative, ambitious, and not bound by external parameters such as those the current administration seeks to impose. It is thinking that reflects the optimism and vision upon which environmental law was founded and emphasizes the continuing imperative of creativity and innovation. It is thinking that embraces the possibility of vision-imbued resistance that simultaneously seeks to curb the erosion of existing systems of environmental governance while also planning for a more positive, equitable, and sustainable future. It is thinking that sees the looming red skies and envisions courage and a positive pathway forward.

As one of our great protagonists of change, Wangari Maathai, stated “[i]t is the people who must save the environment. It is the people who must make their leaders change. And we cannot be intimidated. So we must stand up for what we believe in.” 

Cinnamon Carlarne Hirokawa is President and Dean of Albany Law School .

ELC 2025, Resist, Restore, Reimagine: Essays from the Environmental Law Collaborative

In July 2025, participants at the Environmental Law Collaborative (ELC) gathered to engage in what we initially called “Blue Sky Thinking in a Red Sky World.” The theme originated from Gus Speth’s searing 2005 book, Red Sky at Morning: America and the Crisis of the Global Environment, the prologue for which warns: “A global crisis has unfolded quickly, and, as in classic Greek tragedy, we have been told what the future may hold, but so far we seem unable to step from the path to disaster that has been mapped out for us. The last act is about to begin.” Our hope was that the ELC’s participants would (unlike so many tragic Greek actors) be willing to acknowledge the realities of the ongoing environmental crises (and our own roles in it), and then to think creatively, strategically, and even optimistically about how we might chart a different course and defy the fates. Although the world looks especially bleak today, this creative, strategic, and optimistic vision has motivated the ELC for nearly 15 years.

The Environmental Law Collaborative (ELC) comprises a rotating group of law professors who assemble every other year to think, talk, and write about an important and intriguing theme in environmental law. The goals of this meeting are both scholarly and practical, as ELC seeks to bring together scholars with disparate areas of experience and expertise to collectively engage the complex and potentially existential environmental challenges that define our time, with the ultimate goal of contributing to positive change in our shared world. That same vision led us into our 2025 meeting. 

We began planning the event well before the November 2024 election—when it was easier for most of us to imagine a future of blue skies and environmental progress—but we wanted to keep the focus as much as possible on pathways towards progress. We divided the discussion into six sessions. We hoped that the first, our “Red Sky Rant”—in which participants were invited to discuss their greatest worries about the current state of politics and the planet—would act as a sort of catharsis. The following four sessions explored different questions about and strategies towards a more sustainable future. Should we double-down on existing laws and practices or chart wholly new directions? Do sub-federal and international laws provide solutions that U.S. federal law no longer does? Is the “abundance movement” the solution we’ve been waiting for, or should societies embrace degrowth? And, above all, how can we regain some of the momentum towards justice and democracy during this fraught time of authoritarianism, violent rhetoric and violent deeds, and marginalization of many members of society?

The discussions were enlightening, sobering, energizing, inspiring, and sometimes very funny. The event closed with the “Blue Sky Brainstorm,” where participants reflected on the ideas that resonated most with them. Many of the blogs in this series touch on the range of subjects we covered, including the MAHA (make America Healthy Again) movement, monopoly control, the power of local governments, reviving international law, encouraging belonging, and reconceiving our roles as educators and communicators.

At the end of our gathering, we discussed whether the “Red Sky/Blue Sky” theme accurately described our work. While some participants believed it did, others were unsure about the theme’s meaning. Was it a reference to wildfires, the burning planet, environmental degradation? (To a large degree, yes, yes, and yes.) Did it refer more figuratively to the turmoil, violence, and disruption communities throughout the globe are experiencing? (Again, yes) Or was it a reference to U.S. political divisions and the current red/blue divide. (Actually, no.) Our overarching goal was to find hope and pathways forward amidst this moment of deep worry and despair. For some of us, that means resisting the actions, the actors, and the systems that have left so many of us feeling hopeless as we watch our world in turmoil, our neighbors suffer, and our planet destroyed. For some of us, hope comes from engaging in acts of restoration—rebuilding our communities, our societies, our institutions, and even those foundational constitutional principles that we want to believe serve as constants in governmental decisionmaking. For others, finding hope and ways forward means not just resisting and restoring (although both are essential), but also re-imagining what a just and healthy society might look like and contemplating how this moment of crisis might actually give us the impetus to think more boldly and creatively about not just how to sustain, but how to flourish as a society. 

That does not mean the blogs in this series are necessarily all optimistic, however. If we have learned anything from Greek tragedies, the first lesson is to be honest about the risks we face, whether they arise in populism, politics, economics, or science. The second is to recognize that the solutions are rarely simple, followed closely by the third lesson, which is that we need to retrain ourselves to recognize that problems are often opportunities. Only by directly engaging the complex contours of our reality can we move forward—through resistance, restoration, and reimagining—with our individual and collective efforts to turn the dauntingly red skies of today’s burning world into the hopeful blue skies of the future.