Amicus Curiae Brief of the Guarini Center on Environmental, Energy and Land Use Law at New York University School of Law in Support of Petitioners (Federal Energy Regulatory Commission v. Electric Power Supply Association, Supreme Court of the United States)

39 Pages Posted: 4 Aug 2015 Last revised: 5 Aug 2015

See all articles by Richard B. Stewart

Richard B. Stewart

New York University School of Law

Katrina Wyman

New York University School of Law

Danielle Spiegel-Feld

New York University School of Law, Guarini Center on Environmental, Energy & Land Use Law

Date Written: August 2015

Abstract

NYU Law’s Guarini Center submitted this amicus brief to the Supreme Court supporting the US government’s position in the case Federal Energy Regulatory Commission v. Electric Power Supply Association.

The outcome of the case will determine the extent to which the Federal Energy Regulatory Commission (FERC) can regulate and promote demand response programs in wholesale electricity markets. These programs pay consumers for reducing their electricity consumption when demand is high, such as on hot summer days.

The brief argues that the Court should reverse the D.C. Circuit’s holding below, which took a restrictive interpretation of FERC’s jurisdiction, and thereby preserve FERC’s authority over wholesale demand response programs. The brief emphasizes that these programs play a critical role in promoting the performance of the organized wholesale electricity markets that FERC regulates by enabling market operators to meet electricity needs through the lowest cost means available. Wholesale demand response programs benefit consumers by reducing the cost of electricity, and can confer environmental benefits, such as facilitating the incorporation of renewable energy sources in the electricity system.

For over fifteen years, FERC has worked step by step to incorporate demand response programs into the wholesale energy markets as the Commission has become increasingly convinced of the benefits such programs provide. The D.C. Circuit decision could undo this long and careful process. The brief accordingly urges the Supreme Court to reverse the Court of Appeals’ jurisdictional decision.

The brief was a collaborative effort of the Guarini Center’s Faculty Director Richard B. Stewart, Energy Program Director Katrina M. Wyman, and Executive Director Danielle Spiegel-Feld. Michael Lenoff, a member of the JD class of 2007, provided research assistance.

Keywords: energy, energy law, environmental law, Federal Power Act, FPA, Supreme Court, amicus curiae, Federal Energy Regulatory Commission, FERC, Electric Power Supply Association, EPSA, demand response, wholesale electricity markets, federal jurisdiction, state jurisdiction

Suggested Citation

Stewart, Richard B. and Wyman, Katrina and Spiegel-Feld, Danielle, Amicus Curiae Brief of the Guarini Center on Environmental, Energy and Land Use Law at New York University School of Law in Support of Petitioners (Federal Energy Regulatory Commission v. Electric Power Supply Association, Supreme Court of the United States) (August 2015). NYU Law and Economics Research Paper No. 15-12. Available at SSRN: https://ssrn.com/abstract=2639196 or http://dx.doi.org/10.2139/ssrn.2639196

Richard B. Stewart (Contact Author)

New York University School of Law ( email )

40 Washington Square South
Room 411F
New York, NY 10012-1099
United States
212-992-8165 (Phone)
212-995-4590 (Fax)

Katrina Wyman

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Danielle Spiegel-Feld

New York University School of Law, Guarini Center on Environmental, Energy & Land Use Law ( email )

40 Washington Square South
Rm. 411
New York, NY 10012
United States

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