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45 Ecology L. Currents 132 (2018-2019)

handle is hein.journals/ecolwcur45 and id is 1 raw text is: 










  THE ELECTRIC GRID CONFRONTS

        THE DORMANT COMMERCE

                            CLAUSE


                                   by


                      Sam Kalen & Steven Weissman


     Many modern  energy dialogues gravitate toward a conversation about the
present status of the jurisdictional divide between state and federal authority over
the regulation of wholesale sales of energy. A March 3, 2017 Bureau of National
Affairs (BNA) article began by observing how the utility industry believes the
biggest challenges for the Federal Energy Regulatory Commission (FERC) will
involve U]urisdictional battles between state and federal control in the energy
markets. And last fall, a joint report by centers at Duke University, University
of North Carolina, and Harvard observed how [t]he line between federal and
state jurisdiction over the electricity sector is shifting. FERC once played a
limited role in sector oversight, but regionalization of the electric grid and
development  of  interstate markets for electricity, electric capacity, and
transmission development have expanded its responsibilities. A similar theme
echoed in the Obama Administration Department of Energy (DOE) Quadrennial
Energy Report.
     This jurisdictional conundrum primarily has played out on two fronts: first,
whether state-related energy programs are preempted by the Federal Power Act
(FPA), and  second, whether such state programs run afoul of the dormant
Commerce  Clause. As the electric grid began expanding across state boundaries
in the first quarter of the twentieth century, a similar question surfaced about
which entities-whether states, the federal government, or regional agencies-
ought to regulate sales and transmission of electric energy. Indeed, Justice
Frankfurter and James Landis published a landmark 1925 article on the potential
use of interstate compacts for promoting regional electric superpowers, an idea
supported by such notables as Herbert Hoover. 1 The Federal Power Commission
(FPC), which at the time only enjoyed jurisdiction over hydroelectric facilities,


Copyright © 2018 by Sam Kalen & Steven Weissman
    1. Felix Frankfurter & James Landis, The Compact Clause of the Constitution: A Study in
Interstate Adjustments, 34 YALE L. J. 685 (1925).


132

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