January 01, 2018

Chair’s Column

By Peter V. Lacouture

This issue of Infrastructure contains yet another in the series of essays from our committees marking the 100th anniversary of the Section. The essay by Casey Wren, Chair of the Electricity Committee, Mark Strain, and Everett Britt is an in-depth review of the history of the electric industry since its beginning in the late 19th century.

Several recent news articles remind us once again of the fragility of the infrastructure both here and abroad and the threats to it posed by climate change. Recent accounts report that Cape Town, South Africa, will exhaust its reservoir of potable drinking water sometime in the next few months. Although there has been a brief reprieve, the prospect of a large city losing its drinking water supply is frightening.

Two recent accidents involving Amtrak passenger trains resulted in the loss of life. Although it will take many months for the National Transportation Safety Board (NTSB) to complete its investigation and finally determine the causes of the accidents, early reports suggest that both were the result of human error aggravated by the delay in implementing Positive Train Control (PTC). My wife and I took a transcontinental trip on Amtrak several years ago and found it to be a very civilized means of traveling without the hassles and insults of 21st century air travel. However, the (unfair) perception that it is not a safe means of travel may offset Amtrak marketing efforts. Although there are many important issues facing our nation, we must deal with the twin threats of climate change and our crumbling infrastructure.

The administration has recently issued its long-awaited infrastructure plan and, much to the chagrin of state and local governments, the proposal is dependent on those governments providing much of the funding for infrastructure improvements. It is to be seen whether this or any other infrastructure program is enacted during what promises to be a contentious political year.

Last fall, as we prepared to celebrate the Section’s 100th anniversary in 2017–18, I looked back through old issues of the Section’s Annual Reports (now Recent Developments) and reviewed the predictions made by the Section Chairs in their reports. As one might expect, there has been a certain consistency in the predictions. In 1986, Chair Jim DeBois commented on the “fast-changing world,” a theme which was expressed repeatedly through the subsequent 30 years, including Dynda Thomas’s comment in 2016 that, “as technologies that drive our industries continue to evolve, regulation struggles to keep up with those changes.” And John Beardsworth in 2017, “Industries that did not exist 100 years ago are now critical to our everyday lives and are considered essential infrastructure.”

Competition and deregulation were commented on by Mr. DeBois in 1986, Doug Dunn in 1998, Kathy Edwards in 2000, and Dave Poe in 2004. Mr. Poe noted that “upwardly spiraling oil and gas prices” started a renewed debate on national energy policy, including serious discussion of the future of nuclear power. In 2006, Gerry Connell noted the sea change that the telephone industry had experienced, which he said was sending ripples and waves though our economy.

Mike Payne (2009) and Linda Randell (2010) wrote about efforts to reduce greenhouse gas emissions and Ms. Randell noted the theme of infrastructure security, which permeated the committee reports that year. Tom Gadsden commented again on the broad reach of the Section and its industries in 2011: “It is not hyperbole to suggest that the entities with which we work broadly define the quality of life that we enjoy.”

The next year (2012), Rob Brubaker wrote about restructuring in both gas and electricity markets and convergence in net neutrality and data services, a theme that was repeated in subsequent years.

In 2013, Patty Dondanville wrote about the Section’s early involvement with the ABA’s cybersecurity task force and new technologies that had the promise of bringing new, high-paying jobs to the Rust Belt and providing energy independence for the United States.

Bob Pringle mused in his 2014 report on the scope of the industries that the Section covers and on the developments over the previous two decades: “Just 20 years ago, who would think that we would be reporting on the law related to something called ‘the internet’ and nettlesome issues such as ‘net neutrality.’”

And in his Chair’s report in 2015, Steve Brose explained the evolution of the Section’s name from the Section of Public Utility, Communications and Transportation Law (PUCAT) to Infrastructure and Regulated Industries Section as follows:

“We were originally chartered as the Section of Public Utility Law and we adopted our current name in 1991. As reported at that time by our then Chair, William E. (‘Dub’) Graham Jr., ‘the change was a result of the deregulation and diversification of some of our industries’ and the evolution of ‘many of their characteristics. . . . In those early days, the communications and electricity industries were in their infancy, motor carriers and oil pipelines were of little if any significance. Cable television and atomic power were not even the subject of the wildest fantasies. Today [that is, in 1991 as Mr. Graham wrote], these industries are of tremendous public importance.’”

Many of these common themes remain the subject of reports by our industry and practice committees in the 2017 edition of Recent Developments, which I commend to you.

By Peter V. Lacouture