Brooklyn Law Review


During the year following the EPA’s proposed Clean Power Plan to regulate CO2 emissions in the power sector, the largest investor-owned electric utilities engaged in a curious triplespeak. Employing the moral language of political conservatives, the utilities focused on whether and how the EPA had transgressed its “traditional” regulatory role, thus altering the “structure” of energy federalism and potentially “degrading” orderly power supplies. In disclosure filings with the Securities and Exchange Commission, the utilities used the moral language of political libertarians, focusing on the “financial risks” that federal government “intervention” poses to efficient power “markets” and to the “freedom” of utilities to match energy supplies and customer demand. Meanwhile, in their Corporate Social Responsibility reports, the utilities used the moral language of political progressives. In many instances the same utility company took all of these seemingly inconsistent stances at about the same time. In some respects this triplespeak is unremarkable. Investors tend to believe in free markets and are more libertarian; regulators tend to believe in the status quo and are more conservative; and the socially-responsible public is more concerned about consumer welfare and environmental damage and is more progressive. But these explanations are incomplete. This essay suggests an answer: the utilities engaged in triplespeak as an adaptive measure. Faced with unprecedented business, regulatory, and technological change—not to mention the changes to climate wrought by carbon-generated electricity—the utilities used triplespeak as a way to begin a process of self-transformation. The utilities’ different moral takes on the EPA proposal—each a moral mutation—prepare the industry to respond to an uncertain, volatile future. Whether the power sector’s future is market-based, regulation-dependent, or ecology-driven (or even, and more likely, a combination of these forces), the large utilities responded to the EPA’s proposal by honing their vocabulary to explain their moral choices—whatever they might be.