Energy re-investment

Hari M Osofsky, Jacqueline Peel, Brett H. McDonnell, Anita Foerster

Research output: Contribution to journalArticlepeer-review

3 Scopus citations


Despite worsening climate change threats, investment in energy - in the United States and globally - is dominated by fossil fuels. This Article provides a novel analysis of two pathways in corporate and securities law that together have the potential to shift patterns of energy investment. The first pathway targets current investments and corporate decision-making. It includes efforts to influence investors to divest from owning shares in fossil fuel companies and to influence companies to address climate change risks in their internal decision-making processes. This pathway has received increasing attention, especially in light of the Paris Agreement and the Trump Administration's decision to withdraw from it. But, alone, it will not be enough to foster transition to a cleaner mix of energy sources. Key to achieving this goal of energy reinvestment is a second pathway focused on fostering investments in new companies innovating in clean energy. This pathway - which has received far less attention - uses emerging legal mechanisms to support greater investment in entrepreneurial clean energy ventures. The Article's analysis of this pathway looks beyond the well-established ways in which subsidies support fossil fuels and renewable energy. It instead examines the significance for energy reinvestment of changes in U.S. securities regulation permitting greater crowdsourcing of investment and in state laws allowing for new types of corporations. This Article is the first to examine how these two pathways can synergistically promote energy reinvestment. The first pathway moves money away from fossil fuels, while the second helps to spur needed reinvestment. The Article proposes strategies for deploying the tools in the two pathways together, taking into account the motivations and constraints of diverse investors and corporations.

Original languageEnglish (US)
Pages (from-to)595-652
Number of pages58
JournalIndiana Law Journal
Issue number2
StatePublished - 2019

Bibliographical note

Funding Information:
*. Dean, Penn State Law and School of International Affairs; Distinguished Professor of Law, Professor of International Affairs, Professor of Geography, The Pennsylvania State University. This Article has been significantly improved by feedback from a presentation at the University of Minnesota. This Article was conceptualized when I was a professor at the University of Minnesota and Thomas Burman, Sarah Schenck, Nicholas Boyd-Caine, and Justin Moor provided invaluable research assistance while I was there. The Law Library at the University of Minnesota Law School, and particularly Suzanne Thorpe, was extremely helpful. As always, I am grateful for the love, support, and patience of Josh, Oz, and Scarlet Gitelson. This research received funding support from the Australian Research Council pursuant to a Discovery Project grant on “Devising a Legal Blueprint for Corporate Energy Transition” (2016–2019). **. Professor, University of Melbourne, School of Law, Australia; Associate Director of the Centre for Resources, Energy and Environmental Law, Melbourne Law School. ***. Professor and Dorsey & Whitney Chair, University of Minnesota Law School; Director, Institute for Law and Economics, University of Minnesota Law School. ****. Senior Research Fellow at the Melbourne Law School, University of Melbourne.

Publisher Copyright:
© 2019 The Trustees of Indiana University. All rights reserved.


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