* Managing Editor, Boston College Environmental Affairs Law Review, 200001. 1See generally P. Barker, Who Pays? An Analysis of the Allocation of the Costs of Canceled Nuclear Plants After Duquesne Light Co. v. Barasch, 50 Ohio L.J. 999 (1989) (describing how a nuclear utility covers its operating expenses). The costs of construction, maintenance and decommissioning are incorporated into a utilitys base rate and are amortized over a period of time. As long as the rate is reasonable and fair, a utility consumer must pay it. See Duquesne Light Co. v. Barasch, 488 U.S. 299, 310 (1988); Federal Power Co. v. Hope, 320 U.S. 591, 602 (1944) (holding that a rate must be just and reasonable); Smyth v. Ames, 169 U.S. 466, 546 (1898). Additional evidence indicates that courts will only interfere if the rate order does not compensate a utility. See Barker, supra at 1012. 2 Twenty-four states have deregulation laws on the books. Legislative Affairs (visited Nov. 19, 1999) <http://www.nado.org/legaffair/utility> [hereinafter www.nado.org]. 3 H.R. 1828, 106th Cong. (1999). The Comprehensive Electricity Competition Act, H.R. 1828, was introduced to the House on May 17, 1999 and is currently in committees. 4SeegenerallySafe Energy Communication Council, The Great Ratepayer Robbery: How Electric Utilities Are Making Out Like Bandits (1998) (describing how utilities are taking advantage or ratepayers) [hereinafter The Great Ratepayer Robbery]. Ever since deregulation has been discussed as a real possibility, consumers have begun to question the legitimacy of the regulation requiring ratepayers to pay for certain costs. 5Seeid. 6SeeEnergy Issues/News: Historical Background (visited Dec. 15, 1999) <http://www.eei. org/issues/history.htm> [hereinafter eei history]. In 1898, it was proposed to the National Electric Light Association that electric companies be regulated. See id. By 1916, 33 states had regulatory agencies. See id. 7SeeElectric Power: Deregulation and the Public Interest 4 (John C. Moorhouse ed. 1986). 8SeeElectric Power, supra note 7, at 4; Margaret Jess, Restructuring Energy Industries: Lessons from Natural Gas (visited Dec. 15, 1999) <ftp.eia.doe.gov/pub/oil_gas>. 9See Jess, supra note 8. 10SeeElectric Power, supra note 7, at 4. 11Deregulation (visited Dec. 15, 1999) <http://www.energyland.net/deregulation/ intro.as> [hereinafter Deregulation]. 12See eei history, supra note 6. 13See id. Companies used different equipment, voltages and frequencies. Seeid. 14See Deregulation,supra note 11. 15SeeElectric Power, supra note 7, at 43. Some people doubt whether the electric utilities were ever a natural monopoly. See id. 16 Adam D. Thierer, Electricity Deregulation: Separating Fact From Fiction in the Debate Over Stranded Cost Recovery (visited Dec. 15, 1999) <http://www.heritage.org/library/ categories/regulation>. 17SeeCharles F. Phillips Jr., The Regulation of Public Utilities: Theory and Practice 10910 (1988). 18See id. at 110. 19See id. at 111. 20See id. 21Seeid. 22SeePhillips, supra note 17, at 110. 23See id. at 10910. 24See id. at 110. 25See id. 26See id. 27See Thierer, supra note 16. 28SeePhillips, supra note 17, at 110. 29SeeSteven Mark Cohn, Too Cheap to Meter: An Economic and Philosophical Analysis of the Nuclear Dream 17 (Roger S. Gottlieb ed. 1997). 30See id. at 17. 31See id. 32See id. 33See id. at 69. 34 SeeCohn, supra note 29, at 17. 35Id. at 1718. 36Id. at 18. In 1964, only 22% of those surveyed agreed with the statement, You cannot trust government to do right most of the time. Id. 37Id. 38See id. 39SeeCohn, supra note 29, at 18. Students for a Democratic Society declared, Our monster cities, based historically on the need for mass labor, might now be humanized . . . by nuclear energy . . . . Id. 40See id. at 18. 41See id. 42See id. at 69. Some believed the demand for electricity was expected to increase by approximately seven percent annually for the foreseeable future. See Richard J. Pierce, Regulatory Treatment of Mistakes in Retrospect: Canceled Plants and Excess Capacity, 132 U. Pa. L. Rev. 497, 500 (1984). Others believed that electricity sales would continue to double every decade. See Richard Goldsmith, Utility Rates and Takings, 10 Energy L.J. 241, 241 (1989). 43SeeGregory B. Enholm & J. Robert Malko, Electric Utilities Moving into the 21st Century 15 (1994). This projected growth was never realized. In fact, sales for electricity fell from six to eight percent to two percent. SeeCohn, supra note 29, at 15. Another result of the forecasted increase in electric sales was that the nations electric utilities began an ambitious program of expansion. See Goldsmith, supra note 42, at 241. In 1967, the Atomic Energy Commission (AEC) foresaw 1000 nuclear plants on line in the United States by the year 2000. SeeCohn, supra note 29, at 127. 44See infra notes 4546 and accompanying text describing nuclear power as a panacea. 45 Leigh A. Riddick, Upside Down: Who Should Bear the Unanticipated Costs of Nuclear Decommissioning?, 132 No. 8 Fortnightly 31. 46SeeCohn, supra note 29, at 19. While there was opposition to nuclear power, [t]hese countercurrents were submerged as nuclear promoters assembled a critical mass of social support for nuclear technology and subsequently constructed assessment centers in industry, the National Laboratories, and nuclear engineering departments that were dominated by technological aesthetics congenial with nuclear power expansion. Id. at 20. 47See id. at 63. 48See id. at 6383. 49See id. at 63 (1990 dollars). 50See id. While government aid influenced utilities to construct nuclear power plants, the decision to build a plant was up to the utility. See Pierce, supra note 42, at 508. Furthermore, the utilities had a strong economic incentive to construct nuclear power plants. SeeThe Great Ratepayer Robbery, supra note 4, at 19. In some instances, utilities litigated to force regulatory agencies to allow them to build plants. Id. 51SeeCohn, supra note 29, at 75. This government cost reduction kept people from realizing the full cost of nuclear power. See id. 52See id. 53SeeEnholm & Malko, supra note 43, at 236. 54See Thierer, supra note 16. 55SeeCohn, supra note 29, at 69. 56See id. at 127. 57SeeEnholm & Malko, supra note 43, at 13. 58See id. at 1315. 59See Michael R. Lettrich, Popowsky v. Pennsylvania Public Utility Commission: The Supreme Court Holds That the Costs of Decommissioning TMI-2 may be Classified as Operating Expenses Properly Chargeable Consumers, 5 Widener J. Pub. L. 865, 865 (1996). 60 SeeEnholm & Malko, supra note 43, at 16. 61See id. at 15. By the mid-1980s, forecasted growth had declined from six to eight percent to around two percent. See Pierce, supra note 42, at 503. 62See Duquesne, 488 U.S. at 30203; Pierce, supra note 42, at 502. Many utilities claim that the decision to build a nuclear plant was reasonable and prudent. 63 See Duquesne, 488 U.S. at 303. This is the argument made by most utilities. 64See id. at 30203. 65See id. at 302. 66See id. at 303. 67See id. 68SeeCohn, supra note 29, at 143. Steven Mark Cohn, author of Too Cheap to Meter, disagrees with this superficial analysis of the decline of nuclear power. See id. 69Id. at 143. 70See id. 71See id. at 2223. 72See id. at 17, 54. 73SeeCohn, supra note 29, at 143; see also supra notes 59-64 and accompanying text. 74See Cohn at 22. Coal reserves in the U.S. are ample for centuries. Id. 75See id. 76Id. 77See id. 78See supra notes 7477 and accompanying text. 79SeeCohn, supra note 29, at 24. 80See id. at 25. 81See id. at 23. 82See id. at 17. 83Id. at 2324. 84SeeCohn, supra note 29, at 53. 85See id. 86Id. 87See id. 88 Plant construction, maintenance, and decommissioning are a few examples of expenses. 89See Barker, supra note 1, at 9991000. Technically, amortization is the process in which capital outlay is recovered in installments by converting the depreciation in value of a capital asset into a current expense, with the entire amount being recouped by the end of the amortization period. Id. at 1001. 90See id. at 1001. 91See id. at 1000. 92SeeDuquesne, 488 U.S. at 61314. In this case there was a question as to whether certain operating expenses have been prudently incurred. See id. 93See Barker, supra note 1, at 1001. 94See id. 95See id. 96See id. 97See id. at 1003. 98See Barker, supra note 1, at 1001. 99Id. The used and useful rule is a bedrock principle of public utility rate regulation. It requires that costs associated with electric power plants be paid by the ratepayers who benefit from the plant. See Lettrich, supra note 59, at 868. Whether a cost is used or useful has been the topic of much litigation but is outside the scope of this article. 100See The Decommissioning Crunch (visited Nov. 11, 1999) <http://www.bwgi.com/ energyarticle.html> [hereinafter The Decommissioning Crunch]. 101See 10 C.F.R. § 50.2 (2000); see also Staff Responses to Frequently Asked Questions on Decommissioning Nuclear Power Reactors (visited Nov. 12, 1999) <http://www.nrc.gov/NRC/ NUREGS/SR1628/part06.html> [hereinafter Staff Responses]. 102See Staff Responses, supra note 101. 103See The Decommissioning Crunch, supra note 100. 104See id. 105See Decommisioning (visited Nov. 11, 1999) <http://www.greenpeace.org/_commons /no.nukes/decommi.html> [hereinafter Decommissioning]. Decommissioning costs are highly speculative because the detail and sophistication employed in developing an estimate varies greatly and a lack of standardization makes comparison difficult. 106See id. 107 Bruce Biewald & David White, Stranded Nuclear Waste: Implications of Electric Industry Deregulation for Nuclear Plant Retirements and Funding Decommissioning and Spent Fuel (visited Nov. 19, 1999) <http://www.citact.org/nucrep.html>. Many plants close prematurely due to their bad financial state, resulting from poor management decisions. SeeThe Great Ratepayer Robbery, supra note 4, at 1. 108See Gary M. Becker, Surviving Nuclear Decommissioning, 136 No. 13 Pub. Util. Fort. 22, 22 (1998); U.S. NRC Information Digest, app. B at 10304 [hereinafter NRC Information Digest]. 109SeeNRC Information Digest, supra note 108, app. B at 10304. Many plants close down before the expiration of their license because of poor management. See id. 110See Biewald & White, supra note 107. 111See 10 C.F.R. pt. 30 (1975); 10 C.F.R. pt. 50 (1963). 112See Biewald & White, supra note 107. 113See Regulatory Analysis on Decommissioning Financial Assurance Implementation Requirement for Nuclear Power Reactors, 10 C.F.R. § 3.2.2. 114See Biewald & White, supra note 107. 115 The used and useful rule is a bedrock principle of public utility rate regulation. It requires that costs associated with electric power plants be paid by the ratepayers who benefit from the plant. See Lettrich, supra note 59, at 868. 116 If a ratepayer is required to pay after a plant is canceled, then they are not paying for services received. Some argue that it is fair to require ratepayers to continue to pay after a utility shuts down because they are essentially still paying for a servicethe safe closure of the plant. This argument misses the mark. Ratepayers have already been paying for the service of decommissioning through their prior rates. It is no fault of the ratepayer that a utility makes the decision to shutdown prematurely and causes it to lose its security. If the utility makes the unilateral decision to prematurely shutdown, its investors should bear the burden of that decision. Furthermore, it can be argued that ratepayers have already paid their share of the utilitys costs. For those nuclear plants that cost several billion dollars to construct, it is not accurate to say that consumers bearing the brunt of those construction costs are benefiting as a result of receiving the excessively high priced electricity from the facility. See Biewald & White, supra note 107; Pierce, supra note 42, at 50406. After all, nuclear power, which was once believed to be less expensive than conventional power, is typically more expensive. See Riddick, supra note 45, at 1. 117See Stop the Bailout Coalition Statement/Participants, Stop the Bailout!: Dont Charge Consumers for Utilities Past Mistakes (visited Dec. 15, 1999) <http://www.local.org/ stopbail.htm> [hereinafter Stop the Bailout!]. 118 Pierce, supra note 42, at 508. 119See id. at 510. 120See id. at 498. 121See Barker, supra note 1, at 999. Additionally, each abandoned project costs $50 million. 122See id. The author believes that utilities should be allowed to recover all costs of canceled plants. However, ratepayer organizations contest this view. See generallyStop the Bailout!, supra note 117. 123See Pierce, supra note 42, at 511. 124See id. at 51112. 125See id. at 512. 126See id. A plant that was canceled before it went on line cannot be seen as used and useful since it never produced a service. 127See Pierce, supra note 42, at 51112. 128See id. at 512. The belief that the decision to build new plants was reasonable supports the notion that ratepayers should compensate the utilities for their investment decisions. This notion, analyzed in Section V of this article, has been challenged by Steven Mark Cohn. See supra notes 71-89. 129See Barker, supra note 1, at 1002. Courts have found the decision to build a nuclear plant was reasonable and prudent based on the popular misconception that electric sales were going to increase. SeeDuquesne, 488 U.S. at 30304. However, even at that time, this popular belief may not have been reasonable. See supra notes 62-68. 130See Thierer, supra note 16. Stranded costs actually include the costs of decommissioning canceled plants, and any other expenditures or investments of the utility that will not be recoverable when the plant lowers its rates in a competitive market. 131See id. 132See www.nado.org, supra note 2. 133See Thierer, supra note 16. 134See id. 135See generally Energy Issues/News, Recovering Transition Costs: Key to Advancing Electricity Competition (visited Dec. 15, 1999) <http://www.eei.org/issues/comp_reg/power6.htm> [hereinafter eei recovery]. 136See id. 137See id. 138See id. 139Seeid. 140See eei recovery, supra note 135. This assertion is contested. Some sources claim that the other industries did not recover transition costs. See Stop the Bailout!, supra note 117. 141See eei recovery, supra note 135. 142See id. Existing utilities argue that they will be at a disadvantage because of their former status as regulated utilities. See id. Conversely, new firms contend that they will be disadvantaged because the cost of capital (or the cost of raising or borrowing money for firms) would likely be artificially lower for firms enjoying generous stranded cost recovery, which would mean new rivals would have a more difficult time raising the money needed to compete with the incumbent utilities. See Thierer, supra note 16. Thus, regardless of the view, a difference in financial status between new and previously regulated utilities will exist. 143See Thierer, supra note 16. 144See eei recovery, supra note 135. 145Id. 146See supra notes 16-28; see infra notes 149-153 and accompanying text. 147See eei recovery, supra note 135. 148See Thierer, supra note 16. A recent poll conducted by Research/Strategy/ Management Inc. for the Sustainable Energy Coalition shows that seventy percent of the respondents believe that utilities should be responsible for their own inefficient past investments. See id. 149See id. 150Id. 151Seeid. 152 Thierer, supra note 16. Because regulatory commissions across the United States gradually came to the unstated conclusion that it was more important to protect the health of the companies they regulated than the interests of customers, an entitlement mentality was born and nurtured among the utilities . . . many utilities have come to believe they have a right to be compensated for all their inefficient or unprofitable investments. Id. 153See id. Because so many commissions have allowed utilities to amortize their expenses by raising prices on their captive customer base at will, many utilities have come to believe they have a right to be compensated for all their inefficient or unprofitable investments. Id. 154See id. 155Id. This test was approved by Dr. Jake Haulk, Research Director for Allegheny Institute for Public Policy. See id. 156See id. 157See Thierer, supra note 16. 158See id. 159See id. The new utilities will be more fiscally sound because they will not be relying on the false security created by regulation. See supra notes 47-55 and accompanying text. 160See Thierer, supra note 16. 161See eei recovery, supra note 136. 162See Electric Power Deregulation (visited Dec. 15, 1999) <http://www.pitneysoft.com/ products/SWdereg.html> [hereinafter pitneysoft]. 163See id. 164See Comprehensive Electricity Competition Plan (visited Dec. 15, 1999) <http:// www.home.doe.gov/policy/ceca.htm> [hereinafter Plan]. 165See Electricity Deregulation, a Current Event (visited Nov. 19, 1999) <http://www. About.com> [hereinafter Current Event]. 166See Plan, supra note 164. 167See id. 168See Current Event, supra note 165. 169SeePowering a Generation: Understanding Deregulation #1: Restructuring or Deregulation? (visited Nov. 21, 1999) <http://www.si.edu/nmah/csr/powering/dereg 1.html> [hereinafter Powering a Generation]. 170See Powering a Generation, supra note 169. QFs are independent power producers under PUPRA. See Thierer, supra note 16. 171See Current Event, supra note 165. 172See id. 173 See www.nado.org, supra note 2. 174See Powering a Generation, supra note 169. 175See id. 176See id. 177See id. 178 42 U.S.C. § 13201; 16 U.S.C. § 797; 25 U.S.C. § 3505. 179See www.nado.org, supra note 2. 180Seeid. 181See id. 182 That is the end result of requiring utilities to open their transmission lines to other producers. 183See www.nado.org, supra note 2. 184See id. at 6. 185See Plan, supra note 164. 186See id. 187See H.R. 1828, 106th Cong. (1999). 188See Plan, supra note 164. 189Id. 190See id. 191See id. 192Id. 193See Jess, supra note 8. FERC has ruled that electric utilities should recover 100% of their legitimate and verifiable stranded wholesale costs. Id. 194See Plan, supra note 165. 195See id. 196See generally Status of State Electric Industry Restructuring Activity as of Dec. 1, 1999 (visited Dec. 15, 1999) <http://www.eia.doe.gov/cneaf/electricty/chg__str/regmap> [hereinafter Status of State]. 197Seegenerally Plan, supra note 165. 198See www.nado.org, supra note 2. 199SeeStatus of State,supra note 197. 200See id. 201See id. Alabama, Texas and Massachusetts allow for 100% of stranded cost recovery. See id. 202See id. Alabama is an example of this. See id. The Michigan proposal allows for full recovery of stranded costs using exit fees through 2007. See id. 203See Thierer, supra note 16. Securitization is the process by which a utility is allowed to sell bonds to cover stranded costs. Connecticut requires securitization. See Status of State,supra note 196. 204See Status of State,supra note 196. Maine is an example. See id. 205See id. Montana and Ohio are examples of this. See id. Rhode Island permits a customer transition charge of 2.8 cents per kilowatt-hour. See id. 206See id. Illinois uses such a formula. See id. 207 These cases are characterized as traditional since these cases establish rate regulation jurisprudence. There is a distinction between these cases and Eastern Enterprises, which is not a rate regulation case. 208See generally Duquesne Light Co. v. Barasch, 488 U.S. 299 (1988) (holding rate regulation is constitutional if the total effect of the rate order cannot be said to be unreasonable); Federal Power Co. v. Hope, 320 U.S. 591 (1944) (holding rate regulation is constitutional if the total effect of the rate order cannot be said to be unreasonable); Smyth v. Ames, 169 U.S. 466 (1898) (holding rate regulation is constitutional if the utility receives a fair return on the value of that which it employs for public convenience). 209 169 U.S. 466 (1898); see Goldsmith, supra note 42, at 243. 210Smyth, 169 U.S. at 523. 211See id. 212Id. at 546. 213See id. at 545. 214Id. The Courts acknowledgement of the ratepayers interest is routinely repeated throughout the traditional cases. While the quoted material appears to create a basis for ratepayers to construct an argument, the ratepayers interest has always been ignored. See Drobak, From Turnpike to Nuclear Power: The Constitutional Limits on Utility Rate Regulation, 65 B.U. L. Rev. 65, 67 (1985). While Supreme Court cases have established in dicta protection of the public interest, the prevailing analysis has focused on only the part of the doctrine that protects investors. See id. 215 320 U.S. 591. 216Id. at 602. 217See id. 218Id. 219See id. at 603. 220Hope, 320 U.S. at 602. 221Id. at 602; see Goldsmith,supra note 42, at 249. Although a balance between investors and consumers was required, most jurisprudence focused only on the part of the doctrine that protects investors. See Drobak, supra note 214, at 67. 222See Barker, supra note 1, at 1006. 223See id. at 100607. 224See id. 225See Drobak, supra note 214, at 116. 226 Dayton Power & Light Co. v. Public Util. Commn, 447 N.E.2d 733, 740 (1989). 227 488 U.S. 299 (1989). 228 488 U.S. at 310. 229 66 Pa. Cons. Stat. § 1315 (Supp. 1988). 230 488 U.S. at 305. 231See Barker, supra note 1, at 1011. Fair and reasonable for whom? The jurisprudence assumes that the question of reasonableness is phrased to protect the utility. 232 524 U.S. 498. 233See id. at 52223. 234See id. at 504. 235See id. 236See id. at 50415. 237See Eastern Enterprises, 524 U.S. at 504. 238See id. at 510. 239See id. 240See id. at 51416. 241See id. at 516. 242See Eastern Enterprises, 524 U.S. at 516. 243See id. 244See id. 245See id. 246See id. 247See Eastern Enterprises, 524 U.S. at 516. 248See id. at 517. 249See id. 250See id. 251See id. 252See Eastern Enterprises, 524 U.S. at 517. 253See id. at 538. 254See id. at 549. 255See id. at 52223. 256See id. 257 Eastern Enterprises, 524 U.S. at 52223 (quoting Kaiser Aetna v. United States, 444 U.S. 164, 175 (1979)). 258See Hope, 320 U.S. at 602 (stating, if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry is at an end). The constitutional question relating to rate regulation focused primarily on the reasonableness of the rate as it affected the utility. While superficial attention was given to the interests of the ratepayer in the form of a balancing test, the consumers interest would be swiftly ignored if the result was a confiscatory rate. SeeDuquesne, 488 U.S. at 30708. Therefore, the courts started with the assumption that a rate must be paid, the only real question was how much. 259Duquesne, 488 U.S. at 30708. 260See Eastern Enterprises, 524 U.S. at 52223. 261See generallyEastern Enterprises, 524 U.S. 498 (1998) (Eastern Enterprises discusses the impact of economic regulation that effects a taking). 262See Smyth, 169 U.S. at 522. 263See Eastern Enterprises, 524 U.S. at 52223. Justice OConnors takings analysis, however, did not comprise a majority of the Court. Justice Kennedy, who concurred in the result but not in the reasoning, analyzed the issue under substantive due process. See id. Under Kennedys analysis, the Coal Act was unconstitutional because it was retroactive in nature. See id. at 548. 264Id. at 52223 (quoting United States v. Security Indus. Bank, 459 U.S. 70, 78 (1982)). 265Id. (citations omitted). 266See id. 267See Eastern Enterprises, 524 U.S. at 52223. 268See id. 269See id. 270Id. (quoting Kaiser Aetna, 444 U.S. at 175). 271See id. at 529. 272Eastern Enterprises, 524 U.S. at 52829. 273Id at 530. 274See The Decommissioning Crunch,supra note 100. 275 SeeStop the Bailout!, supra note 117. 276See Public Citizen, Study Shows Electricity Deregulation Could Cause Unfunded Nuclear Waste Liabilities That May Exceed $50 Billion (visited Dec. 15, 1999) <http://www.citizen. org/press/pr-elec3.htm> [hereinafter Public Citizen]. 277See Biewald and White, supra note 107. New nuclear plants did not lower costs as originally promised. Instead, the plants raised costs by 50 percent in some cases. See Pierce, supra note 42, at 505. 278SeeStop the Bailout!, supra note 117; Thierer, supra note 16. 279SeeEastern Enterprises, 524 U.S. at 53233. 280See id. 281See id. at 53536. 282 The utilities investment-backed expectations likewise support the conclusion that ratepayers should not have to pay transitional costs. Put simply, there is no reasonable basis on which utilities can rely to expect to recover stranded costs after deregulation. The regulatory bargain and compact, while a myth, will not even be arguably applicable after deregulation because deregulation will end the utilitys monopoly. This means that without captive ratepayers, no utility should expect to recover all costs. Another reason for supporting the theory that utilities have no investment backed expectations is that after Hope, the possibility of the public interest outweighing the investor interest was real. SeeHope, 320 U.S. at 603. Therefore, anyone investing in utilities after Hope either knew or should have known of the risk that profits would be withheld someday to further the pubic interest. See Drobak, supra note 214, at 106. Furthermore, requiring consumers to continue to pay an old source when it is receiving no benefit is patently unfair. Some may argue that the whole community benefits from the safe and responsible decommissioning of the plant, and thus, the old ratepayers are receiving a benefit from their rates. However, I argue that since the whole community is benefiting, the whole community, and not just old ratepayers, should pay for the cost of decommissioning. 283See Pierce, supra note 42, at 505. 284SeeEastern Enterprises, 524 U.S. at 537. 285Id. (emphasis added). 286See supra notes 155-186 and accompanying text. See generally Status of State,supra note 196; Plan, supra note 164. 287See Plan, supra note 164. If and when the Comprehensive Electricity Competition Act is passed in its original form, it will allow for stranded cost recovery. See id. 288See supra notes 192-200 and accompanying text. 289See Eastern Enterprises, 524 U.S. at 52324. Justice OConnors opinion speaks of the inquiry into the fairness of the government action in question. The inquiry into fairness require[s] that economic injuries caused by public action must be compensated by the government, rather than remain disproportionately concentrated on a few persons. Id. 290 This is unfair because a former consumer should not have to pay for future costs from which the consumer may not be benefiting if they change utilities. Moreover, it is discriminatory. [T]he decision to charge present ratepayers for [future costs] unjustly discriminates against present ratepayers by charging them for the cost associated with electricity provided to past consumers. Lettrich, supra note 59, at 877. 291See supra notes 33-55. 292See supra notes 47-55 and accompanying text. Without the subsidies, favorable regulation, and money for research and developmentwhich cut the cost of nuclear generating costs by fifty percentsome utilities would not have been able to afford to build nuclear plants. SeeCohn, supra note 29, at 75. 293See Pierce, supra note 42, at 508. 294 The term corporate welfare is used by the Stop the Bailout Coalition to describe the stranded cost bailout. See Stop the Bailout!, supra note 117. 295 Even if one argues that nuclear power plants are a societal concern because their safe decommissioning is important to the welfare of all, the solution needs to include everyone, and not just those individuals who may or may not have received a service from the utility but are within the utilitys region. 296 Unquestionably, nuclear power plants are dangerous. There have been at least three major nuclear plant problems: (1) at Three-Mile Island; (2) at Chernobyl; and (3) in Japan. 297See Eastern Enterprises, 524 U.S. at 538. 298See id. at 54649. 299See id. The Due Process Clause forbids retroactive legislation. See id. 300See supra notes 284-285 and accompanying text. 301See supra notes 162-165 and accompanying text. 302See id. 303See id. 304See generallyThe Great Ratepayer Robbery, supra note 4 and accompanying text. 305SeeStop the Bailout!, supra note 117. 306SeeDuquesne, 488 U.S. at 30203; Pierce, supra note 42, at 502, 511; Barker, supra note 1, at 1005. 307 See Duquesne, 488 U.S. at 302. The CAPCO project involved four utilities that planned to construct seven large nuclear generating plants. See id. 308See id. 309See id. at 303. 310See id. 311See supra notes 35, 72 (discussing the focus on positive research only). 312SeeZygmunt J.B.Plater, Environmental Law and Policy: Nature, Law, and Society 89597 (2d ed. 1998) (citing United States v. Park, 421 U.S. 658 (1975)). In environmental tort cases, the defendant may not claim as a valid defense that he or she deliberately remained ignorant of disposal methods of hazardous waste. See Park, 421 U.S. at 67172. Park, the president of Acme Markets, Inc., was charged with violating the Federal Food, Drug & Cosmetic Act, 21 U.S.C.A. § 332. See id. Parks defense was that he had delegated the job of monitoring sanitary conditions to others. According to the court that, the defendant had, by reason of his position in the corporation, responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and that he failed to do so. Plater, supra at 895-97. 313See supra notes 49-55 and accompanying text (discussing federal funding for nuclear research). 314 Professor Drobaks article suggests the current interpretation of rate regulation cases is not the only interpretation. See alsoDuquesne, 488 U.S. at 30102; Federal Power Co. v. Hope, 320 U.S. 591, 602 (1944); Smyth v. Ames, 169 U.S. 466, 546 (1898). Their holdings only require that investors receive a reasonable return, not a full return. See id. 315 The characterization of a public utility as private property that is devoted to public use is misleading: the utility is not devoted to the public but rather is devoted to the idea of making a profit. 316 The decisions were those of the utilities and the regulatory commission. See Pierce, supra note 42, at 508. 317Smyth, 169 U.S. at 545. 318SeeHope, 320 U.S. at 603. Regulation does not ensure that a business shall produce net revenues. Id. 319The Great Ratepayer Robbery, supra note 4. 320See supra notes 53-55 and accompanying text. 321See Stop the Bailout!, supra note 117. 322See Thierer, supra note 16. 323See Drobak, supra note 214, at 123. 324Id. 325See Lettrich, supra note 59, at 87677. 326SeeCohn, supra note 29. 327See Pierce, supra note 42, at 505. 328See Lettrich, supra note 107, at 87677. 329See id. 330See Biewald & White, supra note 107. 331See Stop the Bailout!, supra note 117. In fact, some believe stranded cost recovery will stifle competition, not improve it. Id. 332See generally eei recovery, supra note 135. Stranded cost recovery is needed to keep utilities competitive in competitive market. Id. As a response to this claim, the FERC has ruled that electric utilities should recover 100% of legitimate and verifiable stranded costs. See Jess, supra note 8. 333 Many nuclear power plants are fiscally unsound. SeeThe Great Ratepayer Robbery, supra note 4. 334 Thierer, supra note 16. 335See id.