Joshua C. Macey & Matthew R. Christiansen
This Article interprets a trio of recent Supreme Court cases that addressed jurisdictional disputes in energy markets to identify which policies respect the Federal Power Act’s (FPA) allocation of jurisdiction and which do not. While judges and scholars have considered how these cases implicate various jurisdictional disputes, they have so far failed to articulate a coherent framework for understanding when state or federal policies violate the FPA’s jurisdictional silos.
This Article provides that framework. It argues that the Supreme Court’s energy law trio lays the foundation for a doctrinally coherent and normatively compelling interpretation of the FPA. Specifically, these three cases do not, as scholars have maintained, reflect a doctrinal shift away from the venerable “bright line” jurisdictional division that has characterized the FPA since 1935. Those cases instead apply this bright line to the twenty-first-century electricity sector, which has been transformed by technological innovations and by regulatory attempts to introduce competitive forces. The FPA continues to prohibit state and federal energy regulators from interfering with matters reserved to the other’s exclusive jurisdiction. The Court has simply clarified how the FPA applies in light of technological and economic developments that have created situations that implicate the responsibilities of state and federal regulators simultaneously. Rather than create regulatory gaps that would prevent energy regulators from supervising transactions over which the FPA expressly grants those regulators jurisdiction, the Court has prohibited only those unusual policies that (a) expressly decide an issue that the FPA leaves to the other regulator to resolve (for example, setting a rate in a market that is outside of the regulator’s sphere of jurisdiction), (b) “aim at” or “target” matters that the FPA reserves to the other regulator, or (c) render it impossible for FERC to control matters within its regulatory domain. Recognizing that the bright line is alive and well resolves the doctrinal confusion that has plagued courts and clarifies which energy policies are permissible and which are not.