About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

91 N.Y.U. L. Rev. Online 1 (2016)

handle is hein.journals/nyulro91 and id is 1 raw text is: COMMENT FPA PREEMPTION IN THE 21ST CENTURY MATTHEW R. CHRISTIANSEN* INTRODUCTION..................1.................................. I. FEDERAL PREEMPTION AND THE FPA .........................3 A. The Principles of Preemption ...........3........3 B. Federal Preemption and the FPA.......................5 1. The FPA's Division Between State and Federal Authority . .............................. ..... 5 2. Federal Preemption under the FPA ........ ... .................7 II. THE EVOLUTION OF THE ELECTRICITY SECTOR.................9 A. Federal Reforms .....................................9 B. State Reforms ....................................... 12 III. REVISITING FIELD PREEMPTION UNDER THE FPA....... .............13 A. The Preemption Inquiry Should Focus on Whether the State Regulation Targets FERC's Ability to Approve a Transaction as Just and Reasonable..........................14 1. FERC's Field of Exclusive Jurisdiction Is Narrow..........14 2. The Supreme Court's Cases Are Consistent with this Narrow Field ................................ 16 B. A Conflict-Preemption Framework Better Suits the Purposes and Policies Underlying the FPA....... ...........20 IV. THE ORDER IN HUGHES SHOULD NOT BE FIELD PREEMPTED...........24 A. The Contract for Differences .......................24 B. The Contract Does Not Target FERC's Ability to Review the Wholesale Rate ..............................24 CONCLUSION..........................................26 INTRODUCTION On February 24, the Supreme Court will hear oral argument in Hughes * Energy Law and Regulation Fellow, Frank J. Guarini Center on Environmental, Energy, and Land Use Law at New York University School of Law; J.D., Yale Law School, 2012. This Comment has benefited from the helpful suggestions of Kathryn Cahoy, Miles Fanner, Rich Miller, Ari Peskoe, Richard Stewart, Danielle Spiegel-Feld, and Katrina Wyman, whose views are their own and do not necessarily reflect those of their respective organizations. Thanks are also in order for the staff of the New York University Law Review for their many helpful comments and revisions. All errors are my own. 1

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most