Teaching Public Utility Performance

          Each fall at Georgetown University Law Center I teach a course on public utilities.  To attract modern students to a class on century-old principles, I title the course Renewable Energy, Internet, Uber: Bringing Competition to Historically Monopolistic Industries.

          Contradictory trends:  We learn that today’s utility industries display contradictory trends. Long monopolistic, they now host ambitious entrants: in electricity, providers of renewable energy, storage, modular nuclear plants, and energy efficiency services; in telecommunications, sellers of cellular phones, broadband access, content and more.  But juxtaposed with this energetic activity is a three-decade parade of mergers and acquisitions, by which the original monopolists consolidate and complicate their industries and markets.  A student’s local electric company, for decades an independent, widows-and-orphans investment, now likely sits underneath a multi-layer, multi-utility, multi-state, even multi-industry and multi-national holding company.  AT&T’s original, vertically-integrated monopoly, broken up by a 1984 antitrust settlement, has now reintegrated, while major communications incumbents are merging with major content providers.  We contrast Madison Gas & Electric, a small company whose entire focus is one city, with Baltimore Gas & Electric, a minor member of Exelon’s six-utility, 20-affiliate, multi-layer sprawl of nuclear, coal, gas and merchant (some bankrupt) businesses.

          The basics and the struggles:  We cover the basics—the six features of the state-granted monopoly franchise (exclusivity, consent to regulation, obligation to serve, quality of service, power of eminent domain, limitations on negligence liability); the difference between rhetorical competition and real competition, between authorizing competition and making competition effective; cost-based ratemaking and market-based rates; the four key doctrines—undue discrimination, filed rate doctrine, prohibition against retroactivity and Mobile-Sierra; corporate structure, mergers and acquisitions; and the federal-state jurisdictional relationship—constitutionally framed in 1789, statutorily designed in 1935, awkwardly applied in 2018.

          Those are only the basics.  Students soon grasp that the euphemistic “transition” from monopoly to competition is a struggle.  Utility incumbents are uniquely advantaged by their long history of government protection from competition. From that perch they disparage, then defeat or acquire, new entrants seeking to inject diversity, innovation and competition. . . . 


Testimony, Papers, and Presentations

The testimony relates to AltaGas’s proposed acquisition of WGL Holdings, Inc. and Washington Gas Light Company.
The testimony addresses the following: the effect of the transaction on consumers, including: (1) reasonableness of the purchase price, including whether the purchase price was reasonable in light of the savings that can be demonstrated from the merger and whether the purchase price is within a reasonable range; (2) whether ratepayer benefits . . .
Testimony addresses the issues of whether the proposed transaction affects the interests of ratepayers; the ability of JCP&L and MAIT to provide safe, adequate, and proper utility service at just and reasonable rates; and whether the proposed transaction is in the public interest.
This expert report was submitted to a federal trial court in May 2016 on behalf of City of Jacksonville, Florida. The litigation, and report, involve a 1943 disaffiliation of a gas corporation from its holding company, as mandated by the Public Utility Holding Company Act of 1935. The report explains why the disaffiliation did not prevent liability for the costs of environmental cleanup, if such liability exists under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, from passing to the new corporation.

Books by Hempling

Regulating Public Utility Performance

“[A] comprehensive regulatory treatise …. In all respects, it merits comparison with Kahn and Phillips."

Regulating Public Utility Performance:  The Law of Market Structure, Pricing and Jurisdiction

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Preside or Lead

Preside or Lead?
The Attributes and Actions of Effective Regulators

Now Available on Kindle

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Hempling Appearances

Energy Bar Association
Panel on Practice Principles for New Regulatory Lawyers

UDC Law School Panel
Is the Exelon Takeover of Pepco in the Public Interest?

Nigeria Electricity Regulatory Commission
3rd Judges’ Seminar

Telecom Forum
Asamblea Plenaria REGULATEL

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Electricity Jurisdiction


Working with Scott Hempling is both a pleasure and an honor. Ethical, fair-minded, and dedicated—these are a few of the attributes that Scott brings to his work and his clients. His pursuit of justice is to ensure that a practical outcome will ensue. Scott recognizes the significance of every issue and its implications for any person involved either directly or indirectly. His wide-angle lens encompasses a broad and deep technical legal knowledge that allows him to decipher and give insight into every challenge.
— Elise Herzig, President and CEO, Ontario Energy Association