that are designed to reduce power sector pollution. See State Net Metering Policies, Nat’l Conf. Net metering policies compensate homeowners for installing rooftop solar panels. See, e.g., AB 32 Global Warming Solutions Act of 2006, Cal. Cap-and-trade programs set an upward limit on emissions - often on emissions from industrial activity. Renewable portfolio standards require utilities to purchase a certain percentage of electricity from clean energy sources. Those plans build on a host of other measures, including renewable portfolio standards, 3 × 3. See Clean and Renewable Energy Standard (CARES), S. At least one other state is considering similar legislation. At least thirteen of those states and territories, including California and New York, have pledged to procure one hundred percent of their electricity from carbon-free sources by 2050 or earlier. Research/energy/renewable-portfolio-standards.aspx. § 48:3-87 (West 2020) Renewable Energy and Energy Efficiency Portfolio Standard, N.C. §§ 393.1020–.1030 (West 2020) Montana Renewable Power Production and Rural Economic Development Act, Mont. 1028 (2020) Renewable Energy Objectives, Minn. Renewable Energy and Energy Waste Reduction Act, Mich. Laws 4581–82 Alternative Energy Production Law, Iowa Code §§ 476.41–.45 (2020) Clean Energy Standard, 310 Mass. See, e.g., Renewable Energy Standard and Tariff, Ariz. As of August 2020, thirty states and seven territories had committed to procuring a certain percentage of their electricity from clean or renewable sources. In the past decade, state and federal regulators have taken ambitious steps to reshape the electricity sector. 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. 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. ![]() 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. The FPA continues to prohibit state and federal energy regulators from interfering with matters reserved to the other’s exclusive jurisdiction. ![]() ![]() 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. 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. It argues that the Supreme Court’s energy law trio lays the foundation for a doctrinally coherent and normatively compelling interpretation of the FPA. 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 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. The full text of this Article may be found by clicking on the PDF link to the left.
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