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Risa Goluboff: In the middle of the 20th century certifying natural gas pipelines inspired huge political fights. Today, those pipelines are mostly rubber-stamped. What changed? We'll be talking in this episode with UVA law professor Alison Gocke, to learn more about the evolution of an important federal agency and what it can mean for the nature of regulation itself.
Alison Gocke: They reiterate that they're doing this balancing, they list the same factors that they consider and then at the end of the day, they come to the same decision every time.
Risa Goluboff: Welcome back to Common Law, a podcast of the University of Virginia School of Law. I'm Risa Goluboff, the dean, and I'm so delighted to have Danielle Citron back in the co-host seat.
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Danielle Citron: Thank you so much for having me back.
Risa Goluboff: Oh, it's great. So, Danielle, our guest today is an expert on energy law and its regulation, which has some crossover with your work on law and technology and also I think the two of you may share a certain wariness of monopolies and hard-to-surmount market forces as well.
Danielle Citron: Yes, we are both thinking about how to regulate these powerful economic forces, and in Alison's case, the energy industry, and in mine, I guess it's everything from social media companies to everyday companies that benefit from the amassing and sale of personal data.
Risa Goluboff: Well, this is going to be a great conversation. So tell us more about Alison and why you invited her.
Danielle Citron: Alison joined our faculty this summer after serving as a Bigelow Fellow at the University of Chicago. She also directed the Environmental Protection Clinic at Yale Law School, and before that, served as a legal fellow with the National Resources Defense Council. And Risa, like you, she's a former clerk for Judge Guido Calabresi on the Second Circuit Court of Appeals.
Risa Goluboff: I'll also tell you, Danielle, another thing that we have in common is that when Alison was a student, an undergraduate history student at Princeton, she was my research assistant and she helped me access archives at Princeton that I was trying to get my hands on. So, Alison and I go way back.
Danielle Citron: Yeah. those roots are deep. And also, Alison and I had a meeting of the minds recently when we wrote an op-ed together for Slate, in which we sort of pitched the idea that we can have federal comprehensive data protection, privacy legislation, and have a sidebar of California's special sauce or or more protective legislation — and I got the idea from Alison. We were having lunch, and I was describing her our struggles with. getting the passage of this comprehensive data protection law, which was like kind of a first in a long time, and she said, “I have an idea for you! We can borrow from environmental law.” So I feel so lucky to have Alison as my colleague, co-author, and of course guest on the podcast.
Risa Goluboff: What will we be talking about with Alison today?
Danielle Citron: Today we're going to be talking about her paper "Pipelines and Politics," which is coming out in the Harvard Environmental Law Review.
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Risa Goluboff: I can't wait to see what she has to say, and we will be right back with Alison Gocke.
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Risa Goluboff: Alison, thank you so much for being with us today. It's such a pleasure to have you on our podcast.
Risa Goluboff: I remember sitting in the Ford station wagon on our day waiting, waiting with the wood panels.
Danielle Citron: Right? Yes!
Risa Goluboff: Oh yeah.
Danielle Citron: Oh my golly. And the, like, the nylon seats and you're like scrunching and it's hot out and your parent wakes you up at 6:00 AM to say, ‘Come sit with me in line.’ Right. Okay. Sorry. So we're having this like vivid …
Risa Goluboff: I’m with you.
Danielle Citron: Yeah, we're having a visceral moment on the like, market explanation for why, you know, the deregulatory moves is cause we needed gas. Right. So, what's interesting you say is that, all right, we've had some, like, failures to challenge — like, they put out this policy statement, they're saying we're going to be balancing, right? And then in the last 20 years you find that, well, they're basically just looking at whether there is a market need and ability to fill it. Why aren't institutions up to the challenge of holding FERC to the fire? Like why are we failing to push them on their own policy statements? Why is it that the different levers that could press them for accountability aren't working?
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Risa Goluboff: So Danielle, I thought that was just a fascinating conversation and really at the intersection of both of many of our interests and for me, thinking historically, she's going to the origins of this agency and really trying to identify what they understood to be within the realm of consideration, within the realm of operations and how they understood themselves to go about their business and what changed over time. I wrote a book called “The Lost Promise of Civil Rights,” so I'm interested in what do we lose from history, and I think she really does that in this paper. She's not only looking at today currently and what's happening, but how that compares to what happened before and asking, you know, is this how it has to be and what does it mean that we did this a different way in the past?
Danielle Citron: Those choices that we made, were they good ones? You know, we made this choice to go the public utility route. We have folks starting, and even lawmakers too, looking at public utilities as like the answer to big tech. And I think we have to be careful for what we wish for, and particularly in light of Alison's insights of what it could do if we ...
Risa Goluboff: Right. What are the consequences?
Danielle Citron: Yes. Like if we start saying, “Hey, big social media companies, Amazon, Meta, you are a public utility,” that has all types of consequences that I think we haven't really thought through. And you have some lawmakers taking up the call and saying, “Okay, these social media companies have to carry – like a public utility – all comers.” There are negative externalities that are in full view already – hate speech, spam, stalking, threats.
Risa Goluboff: Sexual violence.
Danielle Citron: Yes. Like we see it. So, in many ways, we're not learning any lesson in the tech field at all from the public utility model and the pitfalls. And I do love how Alison says let's reconsider this model. Because at the beginning, we thought of it as something else. We may want to honor those early choices. In some ways her work is going to help, especially in my field, caution us before we rush into anything. It was fun to read the paper and think about all of our fields and how they sort of teach us something about kind of the beginnings and how we stray away from those beginnings and maybe those beginnings are wrong. You know, who's to say, at least in my world, what happened then was a choice of no regulation in many respects.
Risa Goluboff: I do think it's so eye-opening and possibility-creating and empowering for students and lawyers to not think that what exists was inevitable. What exists is how it has to be, right? When you look at the past and show there were choices made and the choices had consequences and they were constrained choices. Not that they were, you know, unlimited in, in, there are reasons why the choices got made as they did, but that there are contingencies and then there are consequences. And looking back really enables you to open up and say, “Hey, hey, this isn't the only way. It doesn't have to be the way, and let's really think about whether it is the right way or not.”
Danielle Citron: Yes. We need that kind of deep thinking, lest we make really serious mistakes, bad choices, right? I hope we don't make those mistakes.
Risa Goluboff: Me too.
Danielle Citron: For tools that are so important for democracy and speech and all of our life opportunities and of course for Alison, the environment. You know, the world that we inhabit. I want it to still be, you know, for our families and for the next generations to come.
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Risa Goluboff: It's very exciting and I think Alison's work is so important.
Danielle Citron: Yeah, it's fantastic.
Risa Goluboff: Danielle, as always, it has been a pleasure to co-host this episode with you.
Danielle Citron: I'm so with you. Thank you so much, Risa.
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Danielle Citron: That wraps up this episode of Common Law. If you want to find out more about Alison Gocke's work, visit our website CommonLawPodcast.com. There you'll also find all of our previous episodes and more.
Risa Goluboff: We hope you'll join us next time and throughout the season with our Co-Counsel hosts for more explorations of how law shapes our lives. I'm Risa Goluboff.
Danielle Citron: And I'm Danielle Citron. Thank you for listening.
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Credits: Do you enjoy Common Law? If so, please leave us a review on Apple Podcasts, Stitcher, or wherever you listen to the show. That helps other listeners find us. Common Law is a production of the University of Virginia School of Law and is produced by Emily Richardson-Lorente and Mary Wood.
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