For more than a century, antitrust law in the United States has adapted to changing industries without abandoning its underlying principles. The latest test comes from the race to build enough energy infrastructure to power the expansion of artificial intelligence (AI) and the data centers driving it.
Electricity demand is rising faster than the planning, procurement and regulatory systems that were built for a steadier market. That mismatch is forcing companies that normally compete with one another to consider new forms of cooperation while remaining within the limits of antitrust law.
Ann O’Brien, partner and co-leader of the Antitrust and Competition practice group, and Ben Huffman, partner and co-leader of the Energy and Infrastructure industry team, both at Sheppard, told Competition Policy International (CPI), a PYMNTS company, in an interview that the legal framework remains capable of handling these new circumstances, provided courts and regulators recognize the commercial realities driving collaboration.
“The real beauty of antitrust law is that these are very old laws, and you’re constantly applying them to new factual scenarios,” O’Brien said. “We’ve been doing that since 1890.”
The surge in electricity demand created by AI represents another example of the legal system confronting technological change rather than requiring an entirely new body of law, O’Brien said.
“I’ve seen antitrust law as a real bellwether of our economic and consumer demands,” O’Brien said. “Right now, obviously, AI has put energy demand on steroids.”
Rather than rewriting the rules, the objective should be to apply longstanding antitrust principles to today’s market conditions while recognizing the legitimate need for companies to work together on projects that no single participant can complete alone, O’Brien said.
Demand Is Changing the Rules of the Market
From the energy industry’s perspective, the pressures are unlike anything utilities and infrastructure developers have experienced in decades, Huffman said.
For years, the electric grid expanded through deliberate planning processes that assumed relatively predictable growth. Those procedures emphasized careful regulatory review, broad stakeholder participation and long-term infrastructure planning.
That approach now faces extraordinary pressure.
“The flat demand with a little bit of growth that we’ve seen for decades is being upended by the data center demand, and data centers need power now,” Huffman said.
The result is growing pressure on developers, utilities, equipment suppliers and infrastructure companies to find new ways to assemble generation, transmission and construction resources quickly enough to satisfy demand.
“The market forces pushing for that demand story are upending the slow, methodical, thoughtful process for putting new energy generation and transmission in place,” Huffman said.
Companies are not joining forces to restrict output or reduce consumer choice. Instead, they are attempting to build enough capacity to satisfy demand that continues to outpace available infrastructure, Huffman said.
While the structure of collaborative projects matters, the greatest legal risk frequently arises from the information exchanged once competitors begin working together, O’Brien said.
Companies involved in joint infrastructure projects often need to share commercially sensitive information to complete a specific project. The difficulty comes when individuals participating in these collaborations also compete in other parts of the market.
Participants must continually distinguish between the role they are playing within the collaboration and their responsibilities outside it, O’Brien said.
The challenge extends beyond legal doctrine, Huffman said. The industry also faces an acute shortage of experienced personnel, making traditional compliance approaches harder to implement.
“There is a big demand for resources, and resources are stretched thin,” Huffman said.
That reality makes it difficult to separate personnel into independent teams responsible for different functions, increasing the importance of careful planning before collaborations begin.
Guardrails Must Reflect Commercial Reality
Compliance measures should be viewed as practical safeguards rather than procedural formalities, O’Brien and Huffman said.
“I don’t think guardrails are theater,” O’Brien said.
Instead, companies that establish clear protocols, involve antitrust counsel early and encourage employees to raise questions are generally demonstrating that compliance efforts are being taken seriously, O’Brien said.
Conversations frequently involve practical judgments about what information may be shared, which employees should participate in discussions and where competitive boundaries remain even within broader collaborations. Those questions should arise during project planning rather than after discussions have already occurred.
Looking ahead, O’Brien and Huffman said they don’t expect AI-driven electricity demand to produce an entirely new antitrust framework. Instead, they believe regulators and courts should apply familiar legal principles with greater attention to changing market conditions.
“I don’t think the framework needs to change,” O’Brien said. “But we need a realistic analysis.”
