Judge Cudahy and the Deference Tension in United States Energy Law

Abstract

Among the judges on the U.S. courts of appeals, Judge Richard Cudahy stands out for his experience in and writings on energy law. In this Essay, we argue that Judge Cudahy's energy opinions elaborate on two recurring themes in US. energy law: judicial humility and deference for subnational innovation. At the same time, these themes present a deference tension: where federal regulators disapprove of state regulatory policies, courts may confront a conflict between deferring to federal regulators and encouraging subnational energy policy innovations. We argue that in such cases, Judge Cudahy 's decisions point towards a principle of favoring the outcome that best supports the system-wide welfare of the electric grid. This principle has important implications for contemporary energy issues in the United States, especially for renewable and clean energy policy.