Speculative Undertakings: Rate Regulation as a Branch of Corporate Finance

The law of regulated industries, particularly the legislative command that the government ensure “just and reasonable rates” for regulated services, is a highly specialized application of financial economics. Ratemaking, to put it bluntly, represents a regulatory exercise in capital asset pricing. As a matter of economics, this article describes ratemaking as a variation on the theme of uncertainty in mathematical finance. As a matter of law, this article describes legal principles guiding the determination of the rate of return on property dedicated to public use. It closely analyzes two regulatory valuation methods derived from the 1923 Bluefield Water Works decision (“attracting capital” and “comparable earnings”), as well as a third approach based on the capital asset pricing model. Discretionary elements in rate regulation make it impossible to wholly alleviate uncertainty in the pricing of utility infrastructure. Utility rate regulation therefore constitutes a speculative undertaking in its own right.