CPR Scholars Submit Amicus Brief in Supreme Court Case FERC v. Electric Power Supply Association

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 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.

 

 

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