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April 24, 2019 Columns

Chair’s Column

By Mark C. Darrell

The winter issue of Infrastructure illustrates the value of your membership in the Infrastructure and Regulated Industries Section. The issues discussed in Tim Strafford’s article on the history of the law and regulation of railroads and Debra Aron’s article comparing and contrasting the paths of deregulation taken by the airline and the telecommunications industries are exactly the types of discussions that are occurring in our space every day.

One of the reasons that I became involved in the Section many years ago was for the opportunity to discuss with other lawyers representing various infrastructure industries the similarities and differences in the regulatory schemes of those industries. I have spent almost my entire legal career representing natural gas local distribution companies, so I am intimately familiar with regulation of the midstream and downstream sectors of the natural gas industry at the federal and state levels. I have no experience with other infrastructure industries, so articles such as Tim Strafford’s and Debra Aron’s enable me to look at how regulation has evolved in other industries and determine whether parallels can be drawn between what occurred in those industries and has been occurring with the regulation of natural gas.

Tim Strafford discusses the journey of the regulation of railroads from the enactment of the Interstate Commerce Act of 1887 all the way through the partial nationalization of railroads through the creation of the National Railroad Passenger Corporation (“Amtrak”) in 1970 and the Consolidated Rail Corporation (“Conrail”) in 1973. Congress enacted such legislation in direct response to the overall decline in rail traffic and in the profitability of railroad companies in the preceding years. The natural gas industry has never experienced this type of overall decline in throughput or profitability, so the sort of nationalization that occurred in the railroad industry has not occurred in natural gas.

In a recent article posted on, authors Naureen S. Malik, Jim Efstathiou Jr., and Vanessa Dezem, citing a recent decision by Consolidated Edison Company of New York to place a moratorium on new residential hook-ups in Westchester County, New York, stated,

Long heralded as an ideal transition from heating oil, natural gas is now being pushed out of homes and getting shoved aside as a fossil-fuel relic. The shift underscores the existential crisis gas producers may confront as governments battle climate change and wind and solar costs plunge.


While current reports of the death of the natural gas industry may be greatly exaggerated, if natural gas indeed is negatively impacted by government response to climate change, are there lessons government policy makers could learn from the government’s response, or lack of effective response, to the demise of the railroad industry?

The programming offered by the Section will help you think about cutting-edge trends in the regulation of infrastructure industries and how they apply to your practice. During my tenure as Chair, the Section has sponsored the following webinars:

  • October 18, 2018, “Blockchain and the Energy Sector: Applications and Implications”;
  • December 7, 2018, “Electric Transmission FERC Ratemaking: Formula Rates, Protocols, Return on Equity and Incentives”; and
  • February 13, 2019, “Electric Vehicles and Utilities: Recent Regulatory Developments and Utility Engagement.”

These webinars are available for rebroadcast on the ABA website. I would encourage you to enhance your expertise by participating in the Section’s activities and I ask that you also encourage your colleagues to do the same.

I would like to thank Bill Drexel, the editor of Infrastructure, for presenting yet another fine set of articles that address the intersection of government policy and infrastructure industry development. inf

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By Mark C. Darrell