About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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 nearly 3,000 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 with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most