Throwing Shade: The Case Against Judicial Interference With Solar Net Metering Policies

摘要

Electric utilities are increasingly invoking the takings clause, general notions of fairness, and fears of a "death spiral" in their attempts to erode the efficacy of net metering policies. This Article considers each of these arguments and concludes they are best addressed through the political process, as courts applying the takings clause are ill-equipped to address the minutiae of the ratemaking process. Threats of takings litigation only serve to push risk-averse regulators to create inefficient outcomes. Moreover, threats of heightened scrutiny under a deregulatory takings theory or the U.S. Supreme Court's recent Home decision are unlikely to be successful as a matter of law. Moreover, they are ill-advised and inappropriate as a matter of policy.