New York v. Federal Energy Regulatory Commission

535 U.S. 1, 122 S. Ct. 1012, 152 L. Ed. 2d 47, 2002 U.S. LEXIS 1380
CourtSupreme Court of the United States
DecidedMarch 4, 2002
Docket00-568
StatusPublished
Cited by236 cases

This text of 535 U.S. 1 (New York v. Federal Energy Regulatory Commission) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York v. Federal Energy Regulatory Commission, 535 U.S. 1, 122 S. Ct. 1012, 152 L. Ed. 2d 47, 2002 U.S. LEXIS 1380 (2002).

Opinions

Justice Stevens

delivered the opinion of the Court.

These cases raise two important questions concerning the jurisdiction of the Federal Energy Regulatory Commission (FERC or Commission) over the transmission of electricity. First, if a public utility “unbundles” — i. e., separates — the cost of transmission from the cost of electrical energy when billing its retail customers, may FERC require the utility to transmit competitors’ electricity over its lines on the same terms that the utility applies to its own energy transmis[5]*5sions? Second, must FERC impose that requirement on utilities that continue to offer only “bundled” retail sales?

In Order No. 888, issued in 1996 with the stated purpose of “Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities,”1 FERC answered yes to the first question and no to the second. It based its answers on provisions of the Federal Power Act (FPA), as added by §213, 49 Stat. 847, and as amended, 16 U. S. C. §824 et seq., enacted in 1935. Whether or not the 1935 Congress foresaw the dramatic changes in the power industry that have occurred in recent decades, we are persuaded, as was the Court of Appeals, that FERC properly construed its statutory authority.

I

In 1935, when the FPA became law, most electricity was sold by vertically integrated utilities that had constructed their own power plants, transmission lines, and local delivery systems. Although there were some interconnections among utilities, most operated as separate, local monopolies subject to state or local regulation. Their sales were “bundled,” meaning that consumers paid a single charge that included both the cost of the electric energy and the cost of its delivery. Competition among utilities was not prevalent.

Prior to 1935, the States possessed broad authority to regulate public utilities, but this power was limited by our cases holding that the negative impact of the Commerce Clause prohibits state regulation that directly burdens interstate commerce.2 When confronted with an attempt by Rhode Is[6]*6land to regulate the rates charged by a Rhode Island plant selling electricity to a Massachusetts company, which resold the electricity to the city of Attleboro, Massachusetts, we invalidated the regulation because it imposed a “direct burden upon interstate commerce.” Public Util. Comm’n of R. I. v. Attleboro Steam & Elec. Co., 273 U. S. 83, 89 (1927). Creating what has become known as the “Attleboro gap,” we held that this interstate transaction was not subject to regulation by either Rhode Island or Massachusetts, but only “by the exercise of the power vested in Congress.” Id., at 90.

When it enacted the FPA in 1935,3 Congress authorized federal regulation of electricity in areas beyond the reach of state power, such as the gap identified in Attleboro, but it also extended federal coverage to some areas that previously had been state regulated, see, e. g., id., at 87-88 (explaining, prior to the FPA’s enactment, that state regulations affecting interstate utility transactions were permissible if they did not directly burden interstate commerce). The FPA charged the Federal Power Commission (FPC), the predecessor of FERC, “to provide effective federal regulation of the expanding business of transmitting and selling electric power in interstate commerce.” Gulf States Util. Co. v. FPC, 411 U. S. 747, 758 (1973). Specifically, in § 201(b) of the FPA, Congress recognized the FPC’s jurisdiction as including “the transmission of electric energy in interstate commerce” and “the sale of electric energy at wholesale in inter[7]*7state commerce.” 16 U. S. C. § 824(b). Furthermore, §205 of the FPA prohibited, among other things, unreasonable rates and undue discrimination “with respect to any transmission or sale subject to the jurisdiction of the Commission,” 16 U. S. C. §§824d(a)-(b), and §206 gave the FPC the power to correct such unlawful practices, 16 U. S. C. § 824e(a).

Since 1935, and especially beginning in the 1970’s and 1980’s, the number of electricity suppliers has increased dramatically. Technological advances have made it possible to generate electricity efficiently in different ways and in smaller plants.4 In addition, unlike the local power networks of the past, electricity is now delivered over three major networks, or “grids,” in the continental United States. Two of these grids — the “Eastern Interconnect” and the “Western Interconnect” — are connected to each other. It is only in Hawaii and Alaska and on the “Texas Interconnect”— which covers most of that State — that electricity is distributed entirely within a single State. In the rest of the country, any electricity that enters the grid immediately becomes a part of a vast pool of energy that is constantly moving in interstate commerce.5 As a result, it is now possible for [8]*8power companies to transmit electric energy over long distances at a low cost. As FERC has explained, “the nature and magnitude of coordination transactions” have enabled utilities to operate more efficiently by transferring substantial amounts of electricity not only from plant to plant in one area, but also from region to region, as market conditions fluctuate. Order No. 888, at 31,641.

Despite these advances in technology that have increased the number of electricity providers and have made it possible for a “customer in Vermont [to] purchase electricity from an environmentally friendly power producer in California or a cogeneration facility in Oklahoma,” Transmission Access Policy Study Group v. FERC, 225 F. 3d 667, 681 (CADC 2000) (case below), public utilities retain ownership of the transmission lines that must be used by their competitors to deliver electric energy to wholesale and retail customers. The utilities’ control of transmission facilities gives them the power either to refuse to deliver energy produced by competitors or to deliver competitors’ power on terms and condi[9]*9tions less favorable than those they apply to their own transmissions. E. g., Order No. 888, at 31,643-31,644.6

Congress has addressed these evolving conditions in the electricity market on two primary occasions since 1935. First, Congress enacted the Public Utility Regulatory Policies Act of 1978 (PURPA), 92 Stat. 3117, 16 U. S. C. §2601 et seq., to promote the development of new generating facilities and to conserve the use of fossil fuels.

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Bluebook (online)
535 U.S. 1, 122 S. Ct. 1012, 152 L. Ed. 2d 47, 2002 U.S. LEXIS 1380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-v-federal-energy-regulatory-commission-scotus-2002.