University of San Diego

San Diego Journal of Climate & Energy Law

Library of Congress Authority File


Drawing on my experience as a Commissioner of the California Public Utilities Commission (CPUC) from January 2011 to January 2017, this Article explores the interdependence of the electricity sector and the open and neutral internet. Section II of this Article discusses the evolution of critical infrastructure laws and policies. Section III examines California’s energy loading order adopted in 2003 to increase energy reliability and protect the environment. Section IV analyzes the evolution of federal and state Smart Grid policies to infuse communications and information technologies including the internet into the energy ecosystem. Section V discusses FERC’s authorization of demand response−the reduction of energy consumption on call−as a resource eligible to bid in FERC wholesale energy markets. Section VI examines the internet’s role in electric grid reliability, public safety, and environmental protection as exemplified by California’s response to: the outage of the San Onofre Nuclear Power plant beginning in 2012, natural gas shortages in California during the Polar Vortex of 2014, and the methane leak at the Aliso Canyon Natural Gas Storage field in Los Angeles beginning in November 2015 that diminished fuel resources for gas-fired electric power plants. Section VII analyzes the FCC’s 2018 Internet Freedom Order. It argues that the FCC’s failure to consider critical infrastructure including energy in its net neutrality repeal order constitutes arbitrary and capricious decision- making under the APA. This section examines the potential harms of ISP paid priority deals for electric reliability, safety, rates, and the environment. It analyzes the limits of antitrust, unfair competition, consumer protection laws, and disclosure rules which provide no redress for harms to energy safety, reliability, costs, and the environment, in contrast to the FCC’s 2015 Open Internet Order. Section VIII recommends that the FCC’s Internet Freedom Order be vacated in light of its serious deficiencies under the APA. Identity thieves allegedly submitted millions of comments in the Internet Freedom Docket in other people’s names without their authorization; the FCC’s shockingly poor comment process flunks the APA. This Article argues that publicly traded companies should report the FCC’s Internet Freedom Order as a material and cybersecurity risk under Securities and Exchange Commission (SEC) Rules. It argues that states and state Public Utility Commissions (PUCs) and Public Service Commissions (PSCs) (collectively PUCs) should protect their residents through the exercise of the police power inherent in the states and PUC’s jurisdiction. This Article concludes in Section IX by urging the maintenance of legally enforceable net neutrality rules to protect critical infrastructure, energy reliability, the economy, national security, public safety, democracy, and the open Internet.