Striking the Balance Between Competition and Fairness : Sherman Act Section Two and Utility Monopolies in Renewable Energy

The rapidly advancing renewable energy market will result in new, complex legal questions, and the legal field must be willing to revive old antitrust doctrines if it wishes to continue to protect competition and consumers. The monopoly leveraging doctrine should be made useful again under Sherman Act Section 2 to ensure that nonrenewable energy utility monopolies cannot completely foreclose the renewable energy market and forbid new market players from entry. Under Section 2, vertical integration and tying arrangement claims are relevant, permissible claims that could be brought against a utility monopolist. However, the claims alone are not enough to provide adequate protection, and thus a monopoly leveraging claim must be possible. To achieve a goal of a permissible monopoly leveraging claim, courts should implement a balancing test that considers, in light of the totality of the circumstances, the relevant market, the degree of competitiveness in the relevant renewable energy market, the utility monopoly’s impact on the relevant renewable energy market, and whether the utility monopoly engaged in defensive leveraging conduct. Courts have been hesitant in recent years to utilize the monopoly leveraging doctrine. Implementing a balancing test would allow courts to address previous concerns with this doctrine while also responding to modern legal demands