Drs. Kolbe and Tye demonstrate that modern utility regulatory systems expose investors to significant risks with no compensating upside opportunities. While this is not a particularly new insight, the situation is obviously exacerbated when regulators, either by decisional or legislative changes, switch in midstream from one mode of regulation to another or impose new, previously unanticipated restrictions on rate recovery. In this respect, Duquesne serves as a satisfactory takeoff point, although not one necessary for the underlying problem discussed by Kolbe and Tye. Whether or not Duquesne changed the law in any material respect, or, more precisely, authorized Pennsylvania to change the law, is not quite the issue. The inherent regulatory bias plainly exists and whether it is a result of "new rules" or has been there for a long time does not seem critical.
Alan P. Buchmann,
The Duquesne Opinion: A Practitioner's Comment,
Yale J. on Reg.
Available at: http://digitalcommons.law.yale.edu/yjreg/vol8/iss1/5