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Nov 13, 2016
John Bullock is a J.D. Candidate at Harvard Law School. This post is part of the Environmental Law Review Syndicate (ELRS).
As the public has become more aware of the intense connection between the practices of electric utilities and greenhouse gas emissions, interested groups have shone a brighter spotlight on the regulation of utilities in the United States. Some have called on the Federal Energy Regulatory Commission (“FERC”) to take on a more environmentally conscious role when exercising their authority to set wholesale rates. While FERC still hasn’t explicitly taken environmental considerations into wholesale rate setting, it has taken steps to continue to ensure reliability as the nation’s energy portfolio composition shifts.
Generally, under the Federal Power Act, FERC has jurisdiction over sales of electricity for resale in interstate commerce (wholesale sales), electricity transmission, and practices “affecting” rates. The Supreme Court recently authorized a construction of FERC’s jurisdiction in FERC v. Electric Power Supply Association (“EPSA”) to include practices that “directly affect” wholesale rates. This decision was seen as good for clean energy, as it removed barriers for demand response resources to compete in the wholesale market in the short-term, while allowing FERC to have more regulatory flexibility in the long-term.
At the state level, legislators and regulatory bodies generally retain the authority to set retail rates, maintain and site local facilities, and to establish resource portfolios. There are a wide range of potential policies that can be used to foster clean energy, including feed-in tariffs, renewable portfolio standards, rebates for renewables, a carbon tax, a ban on carbon imports and new coal plant construction, and net-metering policies. A majority of states in the country have passed some form of a renewable portfolio standard mandating a certain percentage of the state’s electricity come from renewable resources. These policies can originate in the state legislature or can come from the state utility regulator directly. These state policies use several different regulatory tools, from market-based incentives like renewable energy credits to other state law mechanisms such as long-term power purchase agreements or mandated utility-owned renewable generation.
Some of these state clean energy policies have recently been challenged or are currently being challenged in the federal courts on preemption and dormant commerce clause grounds. Challenges to these policies typically allege that the state programs are either preempted by the Federal Power Act, or are an impermissible intrusion into Congress’s exclusive power to regulate interstate commerce.
The Court, by authorizing an expansion of FERC’s jurisdiction in EPSA, and by failing to clarify the preemption analysis under the Federal Power Act in another recent case, Hughes v. Talen Energy Marketing LLC, may have inadvertently created considerable uncertainty about the extent of federal and state authority—or at least failed to remedy existing uncertainty. More thorough discussions on the shifting approach to the division of state and federal authority in energy law can be found elsewhere. This Article will instead offer some speculation about the impacts of EPSA and Hughes on state policymaking.
In Federal Energy Regulatory Commission v. Electric Power Supply Ass’n, the Supreme Court upheld FERC’s assertion of jurisdiction by allowing it to regulate practices that “directly affect” wholesale rates. At issue in EPSA was whether FERC had authority to regulate demand response transactions (where a provider contracts with consumers to reduce energy consumption), or whether those transactions should be classified as “retail sales.” The Federal Power Act grants FERC jurisdiction over practices affecting rates, and in EPSA, the Court adopted a D.C. Circuit test that cabined that authority to practices “directly affecting” rates. After adopting the directly affecting test, the Court found that FERC had jurisdiction over demand response practices, that the rule did not impermissibly tread into authority reserved to the states, and that FERC did not act arbitrarily and capriciously in its decision to compensate electricity users at the same rates as electricity generators.
Whereas EPSA dealt primarily with the extent of FERC’s jurisdiction under the Federal Power Act, Hughes v. Talen Energy tackled the separate but related issue of whether a state program was preempted under the Federal Power Act. The case was on review from the Fourth Circuit, where the appellate court found that a Maryland program was preempted both as a matter of field preemption (because FERC “occupies the field” of setting wholesale rates), and also as a matter of conflict preemption (because rates under Maryland’s program conflicted with FERC approved rates). On review, the Supreme Court affirmed the lower court’s ruling, albeit on narrow grounds, finding that the Maryland program “impermissibly intrude[d] upon the wholesale electricity market, a domain Congress reserved to FERC alone.”
One could argue that the Supreme Court narrowed the scope of the Fourth Circuit holding. For example, the Court distinguished between contracts-for-differences (which was the regulatory mechanism that Maryland deployed to encourage new natural gas plant development) and other more traditional long-term power purchase agreements. However, in other ways, the Court’s opinion is actually more ambiguous—the Court does not clarify whether the correct analytical approach here should be conflict, field, or another form of preemption analysis, and two Justices wrote concurring opinions to advocate for their distinct approaches.
Because the opinion only addressed a narrow set of situations, the court did little if anything to address whether any other state regulatory mechanisms designed to encourage renewable deployment would be preempted under the Federal Power Act, and specifically limited their holding to Maryland’s program. The decision provides no guidance on how to analyze these state law regulatory programs unless they contain contracts-for-differences that are pegged to a FERC-approved wholesale price, as Maryland’s program did. Therefore, the case is unlikely to act as a prophylactic to the litigation that is ongoing in the lower courts. It makes one wonder why the Supreme Court took the case in the first place—there was no circuit split after the Fourth Circuit’s decision, and the Court failed to use the case as an opportunity to instruct the lower courts.
Combining the holding from EPSA with Hughes along with some of the more archaic language in previous energy preemption cases provide ample fuel for challenges to state renewable energy policies. Simply, if the Federal Power Act draws a jurisdictional “bright-line,” or if “[i]t is common ground that if FERC has jurisdiction over a subject, then the States cannot have jurisdiction over the same subject,” then any practice that “directly affects” wholesale rates should be exclusively within FERC’s jurisdiction. This could result in effectively shrinking state regulatory authority after EPSA and Hughes.
Still, the extent of practices that come within FERC’s “affecting” jurisdiction is unknown, and it may be that FERC must first exercise this jurisdiction over a particular practice before it has a preemptive effect. However, this doesn’t prevent litigants from making those arguments in the lower courts to invalidate clean energy programs, and Hughes may stand as a missed opportunity to clarify the scope of preemption under the Federal Power Act.
In fact, litigants are already citing Hughes and EPSA to challenge state clean energy programs. On October 2016, the Coalition for Competitive Energy filed a challenge to the New York Public Service Commission’s Clean Energy Standard in the Southern District of New York. The Clean Energy Standard was issued in August, and set a target for New York to obtain fifty percent of their electricity from renewable resources by 2030. In addition to continuing New York’s renewable energy credit program, the Clean Energy Standard included a requirement that load-serving entities purchase Zero-Energy Credits that correlate with electricity generated by nuclear facilities. Coalition for Competitive Energy is challenging this specific program (the zero-emissions credits) in their complaint, alleging that it “operates within the area of FERC’s exclusive jurisdiction” and should therefore be preempted. The petition cites EPSA to argue that “[s]tate actions that ‘directly affect the wholesale rate’” are invalid.
Additionally, the Second Circuit recently granted Allco’s request for an injunction to prevent state officials from conducting a clean energy request for purchase (“RFP”) in Connecticut. The decision did not enjoin state officials in Massachusetts and Rhode Island who are also participating in the RFP. While the Second Circuit did not disclose their reasoning when it granted the injunction, Allco’s petition for injunction pointed to Hughes when arguing that the program was preempted under the Federal Power Act.
While it may seem that uncertainty in the preemption context is a net loss for individuals concerned about an accelerated transition to clean energy, climate advocates may also weaponize Hughes in other contexts to argue that other state polices that prop up coal and natural gas plants are preempted by the Federal Power Act. For example, the Ohio Public Utilities Commission recently attempted to use power-purchase agreements—which can sometimes be a tool to generate procure renewables—to subsidize coal plants in the state. The proposal was blocked by FERC before it could take effect, but the program could have been challenged under Hughes if it remained in place.
Both examples citing to Hughes show challenges to state energy programs that operate outside of FERC-approved markets, unlike the Maryland program at issue in Hughes where the parties adjusted the FERC-approved rate. Perhaps the biggest challenge going forward for clean energy advocates will be how to distinguish state programs that do not advance climate goals (like the Maryland program at issue in Hughes) from those that do (such as the program at issue in Allco), when both often use the exact same regulatory tools.
The Supreme Court may return to the question of the extent of federal and state authority under the Federal Power Act sometime within the next few years. It could reach one of several conclusions. It may reaffirm past language about the “bright-line” between federal and state regulatory authority—confirming that EPSA represented an expansion of FERC’s power and a simultaneous restriction on state authority. It may endorse some form of concurrent jurisdiction, as it did in the Natural Gas Act context in Oneok Inc. v. Learjet, Inc., and if it does, it may then decide how to restructure the preemption analysis under this concurrent jurisdictional model. It may establish some method of floor preemption, or alternatively, it may leave the preemption decision up to the federal agency, as it does in some other contexts. Also, the Court may simply leave the resolution of these issues up to the lower federal courts.
Regardless of the approach the court takes, the fact that all of these questions remain open and unresolved currently creates considerable legal uncertainty for state regulators that are trying to update and craft effective clean energy laws. States are already testing the boundaries of their authority in many instances, and many may continue to do so despite these new uncertainties. Further, it may be impossible to disaggregate the influence that legal uncertainty is having on state regulators from other influences such as political pressures. I would assume state legislators and regulators—some that are designing state laws to ensure their compliance with the Clean Power Plan—would likely prefer clarity on what regulatory mechanisms they are allowed to use without running afoul of the Supremacy Clause. Hughes thus represents a missed opportunity, and the recent power trio of Oneok, EPSA, and Hughes may shortly turn into a quartet.
* The author would like to thank Ari Peskoe, Senior Fellow in Electricity Law at the Harvard Environmental Law Program Policy Initiative, and Robin Smith and Nate Bishop for their help and advice. Any mistakes or omissions are the author’s own.
 See, e.g., Christopher Bateman and James T.B. Tripp, Towards Greener FERC Regulation of the Power Industry, 38 Harv. Envtl. L. Rev. 275 (2014) (arguing that consideration of environmental consequences by FERC is permissible under the Federal Power Act); Joel B. Eisen, FERC’s Expansive Authority to Transform the Electricity Grid, 49 U.C. Davis L. Rev. 1783, 1788 (2016) (arguing that under recent case law, FERC may now include environmental considerations into wholesale rates so long as those considerations “directly affect” those rates); Steven Weissman & Romany Webb, Berkeley Center for Law, Energy & the Environment, Addressing Climate Change Without Legislation: Volume 2, How the Federal Energy Regulatory Commission Can Use Its Existing Legal Authority to Reduce Greenhouse Gas Emissions and Increase Clean Energy Use (2014), https://perma.cc/JH8H-FLYT (arguing that FERC can add the cost of carbon when setting the prices in the wholesale market).
 Order No. 1000, Transmission Planning and Cost Allocation by Transmission Owning and Operating Public Utilities, 136 FERC ¶ 61,051, 76 Fed. Reg. 49841 (Aug. 11, 2011) (codified at 18 C.F.R. § 35) (requiring regional transmission planning to consider state and local public policy requirements); Order No. 745, Demand Response Compensation in Organized Wholesale Energy Markets, 134 FERC ¶ 61,187, 76 Fed. Reg. 16657 (Mar. 24, 2011) (codified at 18 C.F.R.§ 35.28(g)(1)(v)) (allowing demand response providers to bid into the wholesale market).
 New York v. FERC, 535 U.S. 1, 6–7 (1996).
 136 S. Ct. 760, 773 (2016).
 FERC defines demand response as “a reduction in the consumption of electric energy by customers from their expected consumption in response to an increase in the price of electric energy or to incentive payments designed to induce lower consumption of electric energy.” 18 C.F.R. § 35.28(b)(4) (2015).
 See Joel B. Eisen, FERC v. EPSA and the Path to a Cleaner Energy Sector: Introduction, 40 Harv. Envtl. L. Rev. Forum 1, 7–8 (2016) (“In the long run, this concise, broad jurisdictional standard gives FERC considerable flexibility to promote a cleaner, more efficient Smart Grid.”).
 See 16 U.S.C. § 824 (a)–(b) (2016); New York, 535 U.S. at 19–25 (“FERC has recognized that the states retain significant control over local matters . . . [including] generation and transmission siting . . . [and] authority over utility generation and resource portfolios”) (citing Order No. 888, Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Services by Public Utilities, 75 FERC ¶ 61,080, 61 Fed. Reg. 21540, 21,626 n.543, n.544 (May 10, 1996) (codified at 18 C.F.R. § 35 and § 385)).
 See generally Toby Couture and Karlynn Cory, National Renewable Energy Laboratory, State Clean Energy Policies Analysis (SCEPA) Project: An Analysis of Renewable Energy Feed-in Tariffs in the United States (2009), https://perma.cc/G2MZ-AY7F.
 See generally David Hurlbut, National Renewable Energy Laboratory, State Clean Energy Practices: Renewable Portfolio Standards (2008), https://perma.cc/JWE4-J9BB.
 See generally Eric Lantz and Elizabeth Doris, National Renewable Energy Laboratory, State Clean Energy Practices: State Renewable Rebates (2009), https://perma.cc/HWE7-EBZM.
 The State of Washington considered a carbon tax in a 2016 ballot initiative. See, Initiative Measure No. 732 (filed March 29, 2016) https://perma.cc/26ZL-Z9D8.
 Minn. Stat. § 216H.03, subd. 3(2) and (3) (2007) (“no person shall . . . (2) import or commit to import from outside the state power from a new large energy facility that would contribute to statewide power sector carbon dioxide emissions; or (3) enter into a new long-term power purchase agreement that would increase statewide power sector carbon dioxide emissions.”)
 See generally Edison Electric Institute, Solar Energy and Net Metering (2016), https://perma.cc/Z3GU-5LKV.
 Jocelyn Durkay, “State Renewable Portfolio Standards and Goals,” National Conference of State Legislatures (July 27th, 2016) (reporting that “Twenty-nine states, Washington, D.C. and three territories have adopted an RPS, while eight [additional] states have set renewable energy goals”). https://perma.cc/DV9L-JRRL.
 See Public Service Commission of N.Y., Order Adopting a Clean Energy Standard (Aug. 1 2016). https://perma.cc/3GSF-Q36Z.
 See, e.g., North Dakota v. Heydinger, 825 F.3d 912 (8th Cir. 2016) (of three separate opinions, two held that Minnesota statute was preempted by the Federal Power Act); Rocky Mountain Farmers Union, et al., v. Richard W. Corey, 730 F.3d 1070 (9th Cir. 2013); Energy and Environmental Legal Institute v. Epel, 793 F.3d 1169 (10th Cir. 2015); Allco Finance Ltd. v. Klee, 805 F.3d 89, 95–96 (2d Cir. 2015) (rejecting plaintiff’s argument that solar contracts approved by the state regulator were preempted by the Public Utilities Regulatory Policies Act); see also Harvard Environmental Law and Policy Institute, State Power Project: Examining State Authority in Interstate Electricity Markets, https://statepowerproject.org (2016).
 Jim Rossi, The Brave New Path of Energy Federalism, 95 Tex. L. Rev. (forthcoming 2016).
 EPSA, 136 S.Ct. at 773.
 The D.C. Circuit found that FERC’s regulation of demand response transactions impermissibly intruded outside of FERC’s authorized jurisdiction under the Federal Power Act. EPSA v. FERC, 753 F.3d 216, 222 (D.C. Cir. 2014).
 EPSA, 136 S.Ct. at 774 (citing Calif. Independent System Operator v. FERC, 372 F.3d 395, 403 (D.C. Cir. 2004)).
 Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288 (2016).
 PPL Energy Plus, LLC v. Nazarian, 753 F.3d 467 (4th Cir. 2014).
 Hughes, 136 S. Ct. at 1292.
 Id. at 1299 (“But the contract at issue here differs from traditional bilateral contracts in this significant respect: The contract for differences does not transfer ownership of capacity from one party to another outside the auction.”).
 Id. at 1297 (“A state law is preempted where Congress has legislated comprehensively to occupy an entire field of regulation, leaving no room for the States to supplement federal law,” as well as “where, under the circumstances of a particular case, the challenged state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (citations omitted).
 Id. at 1300 (Sotomayor, J., concurring) (clarifying that the purpose of the Federal Power Act should serve as the “ultimate touchstone” for the preemption analysis and the Court should resist “talismanic” preemption vocabulary); id. at 1301 (Thomas, J., concurring) (stating that he would not rest his holding on principles of implied-preemption).
 Id. at 1299 (“Our holding is limited: We reject Maryland's program only because it disregards an interstate wholesale rate required by FERC. We therefore need not and do not address the permissibility of various other measures States might employ to encourage development of new or clean generation, including tax incentives, land grants, direct subsidies, construction of state-owned generation facilities, or re-regulation of the energy sector. Nothing in this opinion should be read to foreclose Maryland and other States from encouraging production of new or clean generation through measures untethered to a generator's wholesale market participation.”).
 See supra note 16 and accompanying text.
 Federal Power Commission v. Southern Cal. Edison Co., 376 U.S. 205, 215–216 (1964) (“Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction. . .”). But see Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1601 (2015) (describing the clear division between federal and state authority in the Natural Gas Act context as a “Platonic ideal”); FERC v. EPSA, 136 S.Ct. 760, 780 (2016) (“The [Federal Power Act] makes federal and state authority complementary”); Hughes v. Talen Energy Marketing, LLC., 136 S.Ct. 1288 (2016) (Sotomayor, J., concurring) (“the Federal Power Act, like all collaborative federalism statutes, envisions a federal-state relationship marked by interdependence”).
 Mississippi Power & Light Co. v. Mississippi ex. rel. Moore, 487 U.S. 354, 377 (1984) (Scalia, J., concurring). The majority opinion also acknowledges “FERC has exclusive authority to determine the reasonableness of wholesale rates. . .” Id. at 355.
 Complaint, Coalition for Competitive Energy v. Zibelman (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-08164), https://perma.cc/U9Z9-2UR6.
 Public Service Commission of New York, Order Adopting a Clean Energy Standard (Aug. 1 2016), https://perma.cc/J82W-XSZP.
 Id. at 6.
 Id. at 38.
 Id. at 45.
 Complaint at 5, Coalition for Competitive Energy v. Zibelman, (S.D.N.Y. filed Oct. 19, 2016) (No. 1:16-cv-8164), https://perma.cc/U9Z9-2UR6.
 Id. at 11.
 Order Granting Preliminary Injunction, Allco Finance Ltd. v. Klee (2d. Cir. 2016) (No. 16-2946).
 See id.
 See id.
 Petition for Injunction at 2, Allco Finance Ltd. v. Klee, No. 16-2946 (2d. Cir. 2016) (No. 16-2946).
 Cf. American Council on Renewable Energy, Renewable Energy in Massachusetts (2014), https://perma.cc/V6GF-GEF8 (“In February 2014, the state approved 12 long-term power purchase agreements with four Massachusetts utilities for 409 MW of wind projects in Maine and New Hampshire”).
See In the Matter of the Application of Ohio Electric Company, Case No. 14-1297-EL-SSO (Pub. Util. Comm’n of Ohio 2016), https://perma.cc/T24L-6XCA.
 Gavin Bade, FERC Blocks Ohio Power Plant Subsidies for AEP and FirstEnergy, Utility Dive (Apr. 28, 2016), https://perma.cc/4ZCG-SPQT.
 Hughes v. Talen Energy Marketing LLC, 136 S. Ct. 1288, 1299 (2016).
 135 S. Ct. 1591, 1599 (instructing that for preemption under the Natural Gas Act, the appropriate inquiry is to examine the target at which state law “aims”).
 Jim Rossi and Thomas G. Hutton, Federal Preemption and Clean Energy Floors, 91 N.C. L. Rev. 1283 (2013).
 See Rossi, supra note 17 at 65 (stating that whether state programs are preempted may be left to FERC, as opposed to a case-by-case determination by the judiciary).
 See generally Brian Galle & Mark Seidenfeld, Administrative Law’s Federalism: Preemption, Delegation and Agencies at the Edge of Federal Power, 57 Duke L. J. 1933 (2008).
 See supra note 16 and accompanying text.