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Adapting human rights.


      A. Distinguishing Positive Rights from Negative Rights
      B. The Characteristics of Public Utilities
      C. Applying Positive Rights to Public Utilities
      A. Positive Rights to Public Utilities and Enforceability
      B. Positive Rights to Public Utilities and Sustainability
      C. Positive Rights to Public Utilities and Transparency
      A. Specialized Tribunals for Public Utilities Cases
      B. Block Tariffs and Direct Subsidies in Public Utilities
      C. Effective Concession Contracts for Public Utilities


By 2030, population growth, economic development, and global climate change will increase demand for food, water, and energy by fifty percent. (1) In response to these pressures, and growing concerns for wealth inequities, many scholars, activists, and government officials have advocated for, or enacted, a human right to food, water, sanitation, and energy. (2) These human rights are typically formulated as positive rights, an affirmative obligation of the state to provide a minimum quantity and quality of these goods and services to all citizens. (3) The rationale behind a positive right is that it guarantees the provision of goods and services essential to basic human welfare, in effect, advancing the achievement of an equitable and free society. (4) Public utilities provide these kinds of essential goods and services, including sanitation, water, and energy. But how such a right should be implemented depends on the unique characteristics of the goods or services the right guarantees. For example, applying a positive rights approach to public utilities can potentially be perversely counterproductive. (5)

Recent events in the City of Detroit provide an example of why a positive right connected to public utilities is problematic. In 2013, Detroit declared bankruptcy in the wake of mounting debt and declining revenues. (6) The declining revenues were attributable in part to the difficult financial situations faced by many citizens of Detroit. (7) Both the city and its citizens were impacted in particular in water services, with many delinquent accounts costing the city millions of dollars. (8) Detroit began shutting off water services to these delinquent accounts, resulting in city-wide protests. (9) The city noted that cost recovery improved as consumers paid overdue bills or entered into a repayment program after being shut off. (10) Nevertheless, the city ceased cutting off water services after the judge in Detroit's bankruptcy proceedings, as well as the United Nations, protestors, and commentators raised concerns that cutting off water violates a fundamental human right. (11) Similar large protests erupted in late 2014 in response to Ireland's imposition of new water fees as part of its austerity program, with opponents arguing that the water fees violate human rights. (12)

Does the protection of human rights mean that the City of Detroit is prohibited from cutting off consumers who do not pay their water bills, or that Detroit is required to provide a certain amount of drinking water for free, or far below cost? The design, development, construction, and maintenance of traditional water treatment and distribution systems are expensive, and the energy demands and costs for water treatment and transportation are high. (13) How can an insolvent Detroit afford to provide free or cheap water without ultimately sacrificing the integrity of the system, the quality of the water, and the financial health of the city?

The problem of higher consumption of cheap water is all the more difficult where water is scarce. The challenge of not recovering costs for supplying water faced by places like Detroit and Ireland is then aggravated by a low water supply-in that case, the city risks running out of money and also running out of water. For example, the City of San Bernardino, located in drought-stricken California, recently declared bankruptcy like Detroit. (14) Around the same time, California's "Human Right to Water Bill" came into effect. (15) That bill recognizes that "every human being has the right to safe, clean, affordable, and accessible water." (16) Does such a right require free or low-priced water, and if so, how much water and for whom? If consumers do not internalize the costs of consumption associated with a positive right to water, then they will have little incentive to conserve. (17) How could San Bernardino meet the requirements of California's human right to water without aggravating or prolonging both money and water scarcity?

Similar problems also arise in the case of energy utilities. Consumers obtaining cheap energy via a positive right will have little incentive to conserve. Furthermore, the provider will have trouble recovering costs. Combined, cheap energy under a positive right will degrade infrastructure (making it less efficient) and aggravate greenhouse gas emissions contributing to climate change. (18)

This article argues that the implementation of positive rights must be adapted to the unique policy environment in which such rights are implemented, so as to ensure that their provision is sustainable, transparent, and enforceable. These conditions are like air, light, and water to a living organism-without them, life cannot survive. And just as living organisms must adapt to their environment in order to thrive, so too must positive rights adapt to their unique policy environment. Just as birds adapt to life in mountains, islands, or deserts, so too must positive rights adapt to the different policy environments of health care, education, food, and water. To achieve the goals of transparency, enforceability, and sustainability, a positive right must be adapted to the unique characteristics of the good or service it guarantees. This Article uses the example of positive human rights to public utilities to illustrate the need for the adaptive implementation of such rights. (19)

The characteristics of public utilities like water treatment and distribution, wastewater collection and treatment, and the transmission of energy, create unique challenges to the implementation of positive rights. (20) Public utilities have high initial capital requirements that effectively bar competitors from entering the market. (21) This "natural monopoly" limits competition as a means for price control. (22) Without market forces to suppress prices, government regulators typically set rates on public utilities to avoid monopolistic pricing. (23) However, these rates must still be set high enough to recover the cost of service and provide a rate of return that will attract investment and the expertise necessary for public utilities management. (24) Furthermore, the rates must be set high enough to encourage conservation. (25) But a positive right to public utilities may drive rates too low, reducing necessary cost-recovery for providers and cost-internalization for consumers. (26) Furthermore, courts adjudicating a positive right to public utilities may lack the institutional competence to deal with the highly technical questions associated with rate-setting and natural resource management. (27) With these considerations in mind, the implementation of positive rights to food, education, or health care will require different adaptations, just as the policy environment of different positive rights will require different adaptations to achieve transparency, enforceability, and sustainability.

This Article proceeds in three parts. Part I describes positive rights and distinguishes them from negative rights, and explains how positive rights have been applied to public utilities. Part II explains how the characteristics of public utilities often make a positive rights approach unenforceable, inequitable, and/or unsustainable, and why they therefore require adaptive implementation. Part III proposes and evaluates three potential reforms that should be used to effectively adapt the implementation of a positive right to public utilities, and avoid or mitigate the problems associated with such rights.


People are rarely "against" sustainability, transparency, or human rights when they are considered separately or in the abstract. These elements should be the primary aims of any human right. However, when considered together, and in light of practical implementation, these elements can often form a combustible mixture. The viability of any positive right depends not only upon the policy arena in which the right will be applied, but also upon tailoring the implementation to that policy arena. (28) The tailoring of regulation and judicial oversight to the characteristics of the good or service guaranteed by a positive right is known as an adaptive implementation. A positive right to education or food should not be treated the same as the human right to public utilities, but positive rights laws should be implemented to the unique characteristics of the good or service guaranteed by the state.

This Part lays the foundation for understanding why the implementation of positive rights in public utilities often fail and how positive rights can be tailored to the public utilities arena by (A) explaining positive rights and distinguishing them from negative rights; (B) explaining public utilities and differentiating them from other policy arenas in which positive rights are implemented; and (C) explaining and evaluating how positive rights have been implemented in the public utilities context.

A. Distinguishing Positive Rights from Negative Rights

The term "right" is often applied to a policy aim without regard to its legal implications, simply being used as a moniker by policy entrepreneurs to indicate high importance. (29) Additionally, this term has obvious rhetorical value in public policy debates and meaning within the literature on natural rights. (30) For purposes of this article, however, a "right" is a legally established and enforceable obligation or restraint imposed on government and held by citizens, either individually or collectively. (31)

Rights are often divided into two categories--positive rights and negative rights. (32) The distinction is, superficially, intuitive and straightforward. Negative rights forbid the government from engaging in certain actions such as interfering with speech or discriminating on the basis of race. (33) Positive rights require the government to engage in certain actions, as with the provision of health care or education. (34) On closer examination, however, the distinction is problematic. (35) For example, the enforcement and enjoyment of any negative right requires a minimum level of health, education, civic participation opportunities, judicial process, and security. (36) Yet arguably, that minimum level of government provision of goods and services would not be achieved without restrictions on government interference with speech, assembly, liberty, and property. (37) Additionally, any legal right, whether positive or negative, requires the government to provide something. (38) Even an ostensibly negative right like freedom of speech arguably requires the state provide a forum in which that right can be delineated, adjudicated, and enforced. (39) In a sense, therefore, a right is like a magnet, having both a positive and negative pole.

Despite this "rights polarity," the distinction between positive and negative rights remains useful. (40) In international law, the distinction is often drawn between "civil and political rights" (roughly the corollary of negative rights) and "economic, social, and cultural rights" (roughly the corollary of positive rights). (41) Civil and political rights in international law have proven relatively uncontroversial and effectively enforceable, with an existing protocol for bringing claims of rights violations to international tribunals. (42) Economic, social, and cultural rights, on the other hand, lack a binding protocol for adjudicating claims, and require states only to progressively realize these rights subject to available resources. (43) International human rights law illustrates that, while the conceptual distinction between positive and negative rights is difficult to draw, practical differences in enforceability and the political viability of implementation make the distinction relevant. (44) The question still remains how to draw the practical distinction. (45)

The distinction I propose is based on the aim of the right. Where the aim of a right is the provision of a primary good, it is a positive right; otherwise, it is a negative right. For purposes of distinguishing positive and negative rights, primary goods are the minimum amount of those goods and services necessary for basic human welfare and opportunity for civic engagement--a minimum quantity and quality of water, food, shelter [including light and heat], health care, and education. (46)

The aim of positive rights is to make primary goods, those goods and services essential for basic human dignity, affordable and accessible to all. (47) It is an approach intended to "put first things first" --to provide a baseline level of health and security, without which any other right would be meaningless. (48) It is born of the intuition that the state cannot approach someone dying of thirst or freezing to death and say, "[a]t least you still have the writ of habeas corpus." The intent of distinguishing positive and negative rights in this paper is not to advocate for or against positive rights. Instead, it is to define the positive rights approach in order to understand why it is problematic when applied to public utilities, and whether such problems are surmountable.

B. The Characteristics of Public Utilities

To understand why the application of a positive right to public utilities is problematic, and to evaluate how those problems might be addressed, it is necessary to understand the nature of public utilities. For the purpose of this article, public utilities are natural monopolies directly dependent upon exhaustible natural resources. (49) This definition includes, in particular, water treatment and distribution, wastewater collection, treatment and disposal, and energy transmission.

A natural monopoly occurs when (1) there are significant barriers to entry into the market, particularly due to large initial capital requirements that effectively bar potential competitors; and (2) large economies of scale, such that there are very low marginal costs, allowing the natural monopoly to serve additional consumers more efficiently than any potential competitor. (50) Water, sanitation, and electrical transmission are examples of natural monopolies. The high initial capital requirements effectively bar competitors from the market, and large economies of scale allow providers to serve additional customers at low marginal costs. (51) It is difficult for a newcomer to compete with a system where the costly plants, pipes, and lines have already been laid, and when it is so much cheaper to simply extend the existing system to serve one more customer than to attempt to compete from scratch. (52)

These natural monopolies create challenges with respect to pricing, particularly where they involve private property that has become "affected with a public interest," or private property that the general public must be able to access. (53) In such cases, consumers have no choice but to buy from the monopoly. (54) Without traditional market forces to restrain pricing, natural monopolies are typically subject to rate-setting by the state to curb monopolistic pricing. (55) Where the natural monopoly is not a state agency, but is instead a regulated private entity, it has a quid pro quo relationship with the state--the state grants a monopoly to provide a certain service to a certain geographic area over a specified period of time (often through a "concession contract") in exchange for the utility company assuming certain affirmative duties. (56) These common law duties can largely be summed up as obligations to fairly and equitably serve all similarly situated customers upon reasonable terms, with contract terms related to service construed strictly in favor of the public. (57) The state typically determines the reasonableness of prices and the scope of the monopoly, either through the regulatory process, the concession contract, or some combination of the two. (58)

While there are many approaches to rate setting, the process typically involves setting tariffs to allow the utility to recover the cost of service and provide a rate of return for the utility company on its large initial fixed-cost capital investment (called the rate base) to satisfy investors and creditors. (59) The rate of return must be sufficient to ensure institutional confidence in the financial integrity of the utility company. (60) Therefore, the object of price regulation is to achieve a balance of production and profit for the utility company while ensuring that prices charged to consumers are reasonable. (61)

Other types of infrastructure, which have been historically regulated like public utilities, such as transportation or telecommunications systems, are excluded from "public utilities" for the purpose of this paper. These enterprises do not raise similar concerns of sustainability, either because they do not directly depend on exhaustible natural resources or because market forces create efficient and effective pricing mechanisms for cost-internalization and conservation incentives. Additionally, there has been far less advocacy for, and attempts to implement, a positive rights approach to these types of regulated industries as compared to water, sanitation, and energy. However, as all infrastructures depend at least indirectly on exhaustible natural resources, and as some have begun calling for a human right to the internet, this paper's evaluation of the positive right to public utilities and its prescriptions for implementing that right may become relevant in other fields of infrastructure development and regulation. (62)

C. Applying Positive Rights to Public Utilities

Public utilities are important to human welfare by their very nature. A normal enterprise becomes a regulated public utility because it is "affected with the public interest." (63) It is because these enterprises are so essential to the public interest that they are often considered good candidates for the positive right status. (64) Indeed, in some sense, the common law duty of public utilities to serve constitutes a positive right. (65) According to this view, the theory behind this duty is that because these services are essential, and because consumers have no choice but to seek these services from the natural monopoly, the natural monopoly therefore has an affirmative duty to provide those services at a reasonable price. (66) The same rationale arguably supports a positive right to public utilities. (67)

In an attempt to encourage equitable provision of public utility services, many have argued in favor of a positive rights approach. (68) Like the duty to serve, a positive right to public utilities would provide a bulwark against inequity. (69) Without a positive right to public utilities, some fear that a utility company's profit motive will result in unaffordable monopolistic rates for the poor. (70) A positive right to public utilities would, in theory, at least guarantee a minimum quantity and quality of energy, drinking water, and sanitation for all. (71) Also, like the duty to serve, a positive right would provide a mechanism to hold government regulators and utility companies accountable for the management of resources and infrastructure affecting the public interest. (72)

Unlike the duty to serve, however, the positive rights approach has particular value to policy entrepreneurs looking to raise the profile of global problems like energy services, sanitation, and the inequitable distribution of adequate drinking water. (73) The rationale is that primary goods such as these should have a higher priority, and thinking in terms of rights raises the profile of those primary goods. (74) By using positive rights rhetoric in advocating for the equitable provision of public utility services, policy entrepreneurs are attempting to put first things first. (75)

Relying on these rationales, the positive rights approach has been advocated or applied in the drinking water, sanitation, and energy sectors. (76) Energy, sanitation and water are linked in public policy debates because each is embedded in the other. (77) As water is required to produce virtually all goods, the costs associated with water development are embedded in all goods, a concept called "virtual water." (78) The same is certainly true of "virtual energy." (79) In particular, energy and water have virtual versions of the other embedded in their production, as water treatment and transportation is highly energy intensive, and the energy industry is one of the largest water consumers in the world. (80) Sanitation is also extremely energy and water intensive, and thus has a high amount of both energy and water embedded in collection, treatment, and disposal. (81) Energy, sanitation, and water services have also become interrelated as important markers of economic development. (82) The interdependent nature of energy, sanitation and water make the promotion of any one as a human right effectively the promotion of all three as human rights.

The positive right to water is a commonly-implemented positive right to goods and services provided by public utilities, (83) and thus provides a useful example of how that kind of right is typically formulated. Currently, forty-one nations have recognized the right to water within their national constitutions, or have otherwise referenced the right within national legislation. (84) For example, Article 43 of the Constitution of Kenya provides that "[e]very person has the Right ... to clean and safe water in adequate quantities." (85) Article 5 of Indonesia's Law on Water Resources (86) provides that the state guarantees individual access and availability of water for everyone residing within that nation. (87) Article 66(2) of the Constitution of Ecuador (88) recognizes the right to "clean water." (89) In each case, the right need only be progressively realized subject to available resources. (90) Some nations, such as Uganda and Zambia, frame the right simply as a "compelling interest" or a government "objective," subject to available resources. (91)

In other cases, nations may not have constitutionally or statutorily recognized the right, but have inferred it from other express rights on the grounds that the realization of any right depends on a minimum provision of primary goods. (92) For example, the Supreme Court of India inferred the right to water from other express constitutional rights. (93) A similar approach can be observed in Pakistan (94) and Bangladesh. (95) It is not difficult to imagine how similar inferences could be made about a right to sanitation or energy.

In the United States, California is the only state to explicitly adopt a human right to water, in addition to recognizing the right to sanitation as well. (96) Governor Jerry Brown signed Assembly Bill 685 into law in 2012, recognizing that "every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes." (97) The law requires state agencies to consider the human right to water when "revising, adopting, or establishing policies, regulations, and grant criteria." (98)

California is not the only jurisdiction to explicitly recognize a human right to sanitation. South Africa, Ecuador, and Uruguay have also recognized the right to sanitation in their respective constitutions. (99) Other countries, including Costa Rica, Bangladesh, and Sri Lanka, have referenced a human right to sanitation in national legislation. (100) South Africa has explicitly recognized the right to access to electricity. (101) The formulation of these rights has proven similar to that of the right to water--vague, largely aspirational, and requiring either consideration only or progressive realization based on available resources. (102) The way in which these rights are formulated, combined with the characteristics of public utilities, makes the application of a positive right to public utilities uniquely challenging.

South Africa provides a useful example for the challenges associated with a positive right to public utilities. In 1997, South Africa became one of the first nations to explicitly recognize a positive right to water in its Constitution. (103) Section 27 of the South African Constitution provides that everyone "has the right to have access to ... sufficient food and water." (104) In Phiri, a poor township of over one million residents in the city of Johannesburg, the city government attempted to comply with this right by charging a flat rate for water services to Phiri residents. (105) However, because of illegal connections, unpaid water bills, overconsumption, and leaky pipes, Johannesburg generated only one percent of its water revenue from deliveries to Phiri, despite the fact that Phiri received a third of the city's water. (106)

The flat rate approach thus proved financially and ecologically unsustainable in South Africa. (107) Too few were paying for water, and even those who paid the flat rate had no incentive to conserve water once they paid. (108) Without adequate revenue from water deliveries, infrastructure degraded (meaning more leaks and more nonrevenue water), water supplies diminished, and water could not be treated to a healthy level. (109) Johannesburg ultimately abandoned the flat rate approach, instead seeking an alternative strategy to satisfy the positive right to water without aggravating sustainability concerns. (110) The City, pursuant to national legislation, enacted ordinances to deliver "free basic water" (6 kiloliters per household per month) with any amount above that requiring pre-payment. (111) Citizens of Phiri successfully challenged the "free basic water" and pre-payment approach as a violation of their constitutional right to water at the trial and appellate court levels. (112) The trial court concluded that the constitutional right required delivery of 50 liters per person per day. (113) On appeal, the court ruled that the constitutional right required delivery of 42 liters per person per day. (114) Ultimately, the city prevailed on appeal to the Constitutional Court of South Africa, which deferred to the City's determination on how best to achieve sustainable resource and infrastructure management. (115)

The challenges South Africa faced in implementing a constitutional right to water in Phiri illustrate the difficulties likely facing any government implementing a positive right to a public utility. Indeed, South Africa's struggles to implement such a positive right are not atypical. In India, for instance, the Supreme Court inferred a positive right to water from the constitutional right to life under Article 21 of the Indian Constitution. (116) The Court stated that "the right to access to clean drinking water is fundamental to life and there is a duty on the state under Article 21 to provide clean drinking water to its citizens." (117) Despite this positive right, as of 2004, 17% of the population in India did not have access to tapped, treated water, including 38% percent of urban residents. (118) Eighty percent of children in India suffer from water-borne diseases, with a total of 44 million suffering from illnesses related to poor water quality. (119) India's recognition of the provisional right to water illustrates the larger reality--adopting a positive right to public utilities does not necessarily improve access to water, sanitation, and energy. (120) The mere recognition of a right in a judicial opinion or constitution is meaningless without effective regulation and institutional competency.


The positive right to public utilities is typically formulated in a way that leaves fundamental questions of price, quality, access, and sustainability unanswered. (121) The South African Constitution provides "the right to have access to ... sufficient food and water," but does not explain what would qualify as sufficient ... (122) In India, there is "a duty on the state ... to provide clean drinking water to its citizens," but the precise requirements of that duty are left to courts and agencies to determine with little guidance. (123) And while the right to water provides the most common example of attempts to implement a positive right to public utilities, similar ambiguity exists in providing the right to energy and sanitation as well. (124) This ambiguity often leaves courts, which typically lack the necessary expertise, to either make difficult decisions on resource sustainability and rate-setting, or else to defer to executive agencies or the legislature; thereby, weakening the role of the courts as mere arbiters of constitutionally guaranteed rights. (125)

The characteristics of public utilities do not lend themselves to the straightforward application of a vaguely worded, aspirational positive right. Public utilities are capital intensive. (126) Public utilities also uniquely and directly depend on exhaustible natural resources, and provide processed or treated versions of natural resources as their primary service. (127) Additionally, unlike other candidates for positive rights, distribution of resources by public utilities inherently involves natural monopolies. (128) Thus, the characteristics of public utilities are distinguishable from other positive rights in that there is often no competition to regulate prices, resulting in underpricing and little consumer incentive to conserve natural resources.

This Part provides three reasons why positive rights to public utilities require adaptive implementation: (A) tribunals adjudicating positive rights claims typically lack the necessary institutional competency to effectively decide cases involving complex issues of resource sustainability and rate-setting, particularly where the right is formulated in vague and aspirational terms; (B) the potential cost reduction impact of a positive right to water can make the right economically and ecologically unsustainable because providers fail to recover costs of service and consumers fail to internalize the cost of consumption; and (C) the positive right to water can eliminate incentives for public engagement and oversight, and tend to facilitate rent-seeking by utility companies and corruption by utility regulators.

A. Positive Rights to Public Utilities and Enforceability

As seen in the example of India above, and as borne out in empirical comparisons between countries recognizing a positive right to public utility services and those that do not, actual provision of an adequate public utility service does not necessarily follow from the legal recognition of a positive right. (129) One of the most common reasons positive rights in any policy arena fail is due to the lack of effective enforcement. (130) As the arbiter of rights, the judiciary may lack necessary institutional competency, as compared to other governmental entities, to effectively establish minimum quantities and qualities, and maximum and minimum prices, for services provided by public utilities. (131) In short, a positive right to public utilities implicates the "familiar difficulties with judicial enforcement of affirmative duties." (132)

Furthermore, the nature of the judiciary also limits the enforceability of a positive right to public utilities because courts generally lack the necessary expertise to flesh out the precise duties prescribed by the right. The Constitutional Court in Mazibuko ultimately deferred to the City's established minimum amount and pre-payment requirement based on what the Court called "an understanding of the proper role of courts in our constitutional democracy." (133) The Constitutional Court stated that "[i]t is institutionally inappropriate for a court to determine precisely what the achievement of any particular social and economic right entails and what steps government should take to ensure the progressive realization of the right. This is a matter, in the first place, for the legislature and executive, the institutions of government best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights." (134)

Answering the fundamental questions underlying a positive right to public utilities is particularly complicated because the answer cannot simply be about the minimum quantity and quality for survival --everyone alive already has that minimum amount. (135) Instead, the answer depends on the highly technical determination of a minimum amount and quality for survival at a maximum price, and also about the nuanced issue of achieving a certain standard of living, which involves even more complex matters of culture, economics, sustainability, equity, and geography. (136)

Executive agencies and legislatures have taken two different approaches to the formulation and implementation of positive rights to public utilities, each problematic. (137) The first is to establish a broad, guiding principle in the formulation of the right (for example, a simple guarantee of "sufficient water"), allowing courts to enforce the principle on a case-by-case basis. (138) However, such ambiguity raises serious enforcement challenges. (139) Where courts lack information and expertise regarding state budgets and revenue, the enforcement of a positive right can create serious fiscal problems. (140) Where courts lack information and expertise regarding local conditions, including population density, consumption patterns, hydrology, climate, and ecology, judicial enforcement of positive rights may prove inadequate or overreaching. (141)

To avoid these problems, executive agencies and legislatures may take a second approach by quantifying the minimum quantity and quality of public utilities services required to meet a positive right. (142) This effectively helps to relieve ill-equipped courts from the burden of adjudicating complex ecologic and economic questions. (143) However, such rigid minimum standards may prove unworkable as conditions differ both temporally and spatially from case to case. For example, changes in climate and population can quickly make a minimum standard obsolete. (144) To the extent that courts meaningfully evaluate these minimum standards, they are left to make ad hoc determinations of the viability of these minimum standards under different localized conditions. (145) As with fleshing out vague and indeterminate guarantees of "sufficient" water, courts are often forced to make technical determinations for which they are ill-suited, even when a minimum standard is established. (146) The courts are then faced with the familiar challenge of determining the degree to which they should defer to standards established by executive agencies in implementing the legal right in question. (147)

The judicial application of what is termed the "Ben Avon doctrine" in the United States illustrates the challenges associated with judicial review of agency actions in the realm of public utilities. (148) Where a government agency sets a public utility's rate so low that it effectively requires the company to use its property for the public benefit without just compensation, the rate is confiscatory and constitutes an unlawful exercise of eminent domain power. (149) In Ben Avon, the U.S. Supreme Court held that courts review agency ratemaking decisions de novo where the utility company claims that the rate is confiscatory, because the question is one of a fundamental constitutional right. (150) The rationale behind the Ben Avon doctrine is that, courts should give greater scrutiny to agency determinations in questions of infringement of fundamental constitutional rights. (151) More recently, courts have moved away from the Ben Avon doctrine and have instead been highly deferential to agency ratemaking determinations for public utilities. (152) The rationale behind this move is that value of the judicial protection against agency overreach in ratemaking is outweighed by the court's relative lack of expertise and the costs of uncertainty associated with litigating rates de novo. (153)

This new, more deferential approach to ratemaking cases is instructive for implementing a positive right to public utilities. When courts cannot effectively review cases involving violations of positive rights because they lack institutional competence, the positive right is too weak to further interests in equity and sustainability. (154)
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Title Annotation:Introduction through II. Why Positive Rights to Public Utilities Require Adaptation A. Positive Rights to Public Utilities and Enforceability, p. 1-25
Author:Larson, Rhett B.
Publication:Duke Environmental Law & Policy Forum
Article Type:Author abstract
Date:Sep 22, 2015
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