Hunton Andrews Kurth LLP
  September 1, 2013 - D.C.

Walking the Fuzzy Bright Line
  by Linda L. Walsh and Noelle J. Coates

Since the 1990s, the Federal Energy Regulatory Commission (FERC) has undertaken several major efforts to restructure the electric industry to encourage development of competitive wholesale markets. Beginning with Order 8881 (open-access transmission), and most recently with Order 10002 (regional transmission planning, regional cost allocation, and competitive processes for grid build-outs), FERC has continually pushed the policy envelope, presuming that markets will foster consumer benefits. Achievement of FERC’s ends, however, has come at the cost of significant effects on areas previously considered to lie within the exclusive jurisdiction of the states. Creating competitive wholesale electricity markets has somewhat expanded FERC’s role in electricity regulation, shifting – to FERC’s benefit – the “bright line” that heretofore has separated state from federal authority. For the most part, FERC’s actions have been upheld by the federal courts when challenged by entities concerned with FERC’s encroachment on state jurisdiction. The Supreme Court’s last pronouncement on states’ rights regarding interstate transmission was in New York v. FERC, where the Court upheld FERC’s Order 888 actions in the open access transmission context as a necessary shifting of the line in light of the changing use of electricity in this country from local to regional.3 Indeed, some members of the court did not think FERC went far enough with Order 888.4 

Please click below to see the full article:

Walking the Fuzzy Bright Line (The Legality of State ROFR Laws Under FERC Order 1000), Public Utilities Fortnightly

Read full article at: http://www.hunton.com/files/Publication/27eb7751-6e4e-4822-bdc4-0dd7532ce57e/Presentation/PublicationAttachment/0fa35252-06e5-47eb-b663-2908f7d22fd7/Walking_the_Fuzzy_Bright_Line.pdf