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Amicus Curiae Brief of Interested Energy Law Scholars in Support of the Petitioners (FERC v. Electric Power Supply Association, U.S. Supreme Court)

29 Pages Posted: 18 Jul 2015 Last revised: 24 Nov 2015

Richard J. Pierce Jr.

George Washington University Law School

Joel B. Eisen

University of Richmond - School of Law

Emily Hammond

George Washington University - Law School

Jim Rossi

Vanderbilt University - Law School

Date Written: July 16, 2015

Abstract

This amicus brief was filed in the Federal Energy Regulatory Commission v. Electric Power Supply Association energy law demand response case (and companion case brought by EnerNOC and others), which the U.S. Supreme Court will hear in fall 2015. It was co-authored by Joel Eisen (University of Richmond School of Law), Emily Hammond (The George Washington University Law School), Richard Pierce (Counsel of Record; The George Washington University Law School), and Jim Rossi (Vanderbilt University Law School). Amici curiae are 26 law professors who have significant research and teaching experience in the field of energy law, with a particular focus on electric power markets.

The brief was filed in support of petitioners (FERC and demand response firms), and raises two different arguments in support of reversing the decision of the District of Columbia Circuit Court of Appeals (Electric Power Supply Ass’n v. FERC, 753 F.3d 216 (D.C. Cir. 2014)). Both arguments are based on what Amici believe are fundamental misinterpretations of the Federal Power Act and applicable precedents.

Amici believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that FERC lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which mandates that FERC must remedy “practices . . . affecting” wholesale electricity rates to ensure such rates are just and reasonable. Moreover, it ignores FERC’s reasonable interpretation of its statutory authority. Amici direct their arguments to the jurisdictional issue only, and take no position on the second issue for which the Supreme Court has granted certiorari.

Keywords: energy, energy law, Federal Power Act, Supreme Court, amicus curiae, just and reasonable, statute, statutory, jurisdiction, FERC, Federal Energy Regulatory Commission, EPSA, Electric Power Supply Association, demand response, wholesale markets, electricity, practices

JEL Classification: K00, K10, K20, K23, K32

Suggested Citation

Pierce, Richard J. and Eisen, Joel B. and Hammond, Emily and Rossi, Jim, Amicus Curiae Brief of Interested Energy Law Scholars in Support of the Petitioners (FERC v. Electric Power Supply Association, U.S. Supreme Court) (July 16, 2015). Vanderbilt Public Law Research Paper No. 15-32. Available at SSRN: https://ssrn.com/abstract=2631599 or http://dx.doi.org/10.2139/ssrn.2631599

Richard J. Pierce Jr.

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-1549 (Phone)
202-994-5157 (Fax)

Joel B. Eisen (Contact Author)

University of Richmond - School of Law ( email )

28 Westhampton Way
Richmond, VA 23173
United States
804-287-6511 (Phone)
804-289-8683 (Fax)

Emily Hammond

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Jim Rossi

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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