The FPA and the Private Right to Preempt
84 The George Washington Law Review Arguendo (2016 Forthcoming)
22 Pages Posted: 27 Mar 2016 Last revised: 1 Oct 2016
Date Written: March 22, 2016
The boundary between state and federal authority over the electricity sector is in flux. A host of new technologies is rapidly changing how electricity is generated and consumed. At the same time, state and federal regulators are adopting novel laws and regulations to cope with these changes and to address other priorities, such as reducing carbon pollution from the electricity sector. Together, these technological and regulatory changes have called into question the basic division between state and federal jurisdiction over the electricity sector that has persisted since Congress passed the Federal Power Act (“FPA”) in 1935. As a result, in cases across the country, courts are wrestling with the question of whether the FPA preempts many of these novel state regulations.
This Essay examines whether those cases were properly brought in federal court in the first place. Last year, the Supreme Court concluded, for the first time, that the Constitution’s Supremacy Clause is not a private right of action. Instead, the Court held, a party may bring a preemption claim directly in federal court only when permitted to do so by the putatively preemptive federal statute. This Essay applies that holding to the FPA. In doing so, it provides the first serious attempt to examine whether a private party may bring an FPA preemption claim in federal court or is instead required to make its case first to the Federal Energy Regulatory Commission, the agency that administers the FPA.
Keywords: FPA, FERC, Supreme Court, Private Right of Action, Supremacy Clause, Preemption
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