Today, CPR Member Scholars, with a larger group of law professors, submitted an amicus brief to the Supreme Court in the case of Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association.
The professors submitted the brief because, "they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that the Federal Energy Regulatory Commission (FERC) lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which mandates that FERC must remedy 'practices . . . affecting' wholesale electricity rates to ensure such rates are just and reasonable. Moreover, it ignores FERC’s reasonable interpretation of its statutory authority."
They argue that, "FERC reasonably determined it had jurisdiction to remedy wholesale market dysfunctions with respect to demand response pricing."
The brief also notes, “In addition to ignoring the case law that supports FERC jurisdiction over DR, the D.C. Circuit used a flawed interpretation of FERC’s authority, based on what it deemed 'direct regulation of the retail market—a matter exclusively within state control.' 753 F.3d at 224. In taking this unprecedented step, the D.C. Circuit announced a novel interpretation of § 201(a). That section states that FERC’s reach 'extends only to those matters which are not subject to regulation by the States.' 16 U.S.C. § 824(a). If allowed to stand, the D.C. Circuit’s effort to rewrite the FPA to contain an exclusive jurisdictional sphere for any activity a state regulates will threaten established FERC market initiatives far beyond DR.”
And that, “The D.C. Circuit’s erroneous reading of FERC’s remedial authority, premised on its faulty construction of § 201(a), would create a glaring gap in jurisdiction to regulate wholesale markets.”
To read the entire brief, click here.
The brief was filed by Richard Pierce, Emily Hammond, Joel Eisen and Jim Rossi. The full list of amici includes Todd Aagaard, Sara Bronin, William Boyd, Ann Carlson, David Dana, Seth Davis, Timothy Duane, Michael Dworkin, Joshua Fershee, Sam Kalen, Alexandra Klass, Felix Mormann, Hari Osofsky, Uma Outka, Alan Palmiter, Melissa Powers, Miriam Seifter, David Spence, Amy Stein, Joseph Tomain, Hannah Wisemann, and Steven Weissman.
Showing 2,914 results
Erin Kesler | July 16, 2015
Today, CPR Member Scholars, with a larger group of law professors, submitted an amicus brief to the Supreme Court in the case of Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association. The professors submitted the brief because, “they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that […]
James Goodwin | July 15, 2015
“I’m Republican, and I want to do regulatory reform.” Whether they’ve uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at some point—if not on a near-daily basis—during the last few years. Who could blame them? The unshakable conviction that our regulatory system is […]
Matt Shudtz | July 14, 2015
Public Citizen to host discussion of CPR Member Scholar Rena Steinzor’s new book, “Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.” On Monday, July 20, 2015 Public Citizen, the Center for Progressive Reform and the Bauman Foundation will lead a discussion focused on CPR’s immediate past president and University of Maryland Law School […]
Amy Sinden | July 13, 2015
In Michigan v. EPA, handed down two weeks ago, the Supreme Court waded into the decades-long debate over the use of cost-benefit analysis (CBA) in agency rulemaking. The decision struck down EPA’s limits on mercury emissions from power plants for the agency’s failure to consider costs, and so appears, superficially at least, like a win […]
Erin Kesler | July 9, 2015
House GOP’s “Negative Earmarks” in Appropriations Bill Would Undercut Key Protections and Cost Thousands of Lives Today, the Center for Progressive Reform released a new Issue Alert, “Earmarking Away the Public Interest: How Congressional Republicans Use Antiregulatory Appropriations Riders to Benefit Powerful Polluting Industries.” The report, by CPR Member Scholars Thomas O. McGarity of the […]
Katie Tracy | July 7, 2015
The Supreme Court’s decision on June 26 recognizing same-sex couples’ fundamental right to marry is a significant, albeit long overdue, civil rights victory for the LGBT community and for our nation. You don’t have to look any further than the long list of benefits available only to married couples to see how denying same-sex couples […]
Dave Owen | July 7, 2015
In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL. This is an interesting and important case, and it will take a while to digest. But just based on a preliminary read, a few issues seem particularly interesting […]
Rena Steinzor | July 6, 2015
The Third Circuit’s decision today is a tremendous victory for the elusive goal of restoring the Chesapeake Bay to the point that it is ecologically healthy. As the Third Circuit made clear, the Farm Bureau’s relentless and self-serving opposition to EPA’s leadership in this area misreads the law. Strong federal pollution controls are the last […]
Robert L. Glicksman | July 6, 2015
The following post is based on an article by Professor Glicksman on the George Washington Law Review website.1 In Michigan v. Environmental Protection Agency,2 Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)’s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants […]