Law Commons^™

The Intersection Of The Bankruptcy Courts And Ferc, Amanda Gazzo

Bankruptcy Research Library

(Excerpt)

In the past, the bankruptcy courts and the Federal Energy Regulatory Commission (“FERC”) have been involved in a power struggle with one another. Congress has granted bankruptcy courts exclusive authority to allow debtors to reject executory contracts in chapter 11 reorganization cases. Additionally, Congress has granted FERC authority to govern over utility entities’ filed-rates, which are sometimes contained in executory contracts. It is in this intersection, regarding executory contracts containing filed-rates, where the power struggle between the two exists.

An executory contract is a contract where both parties still have material obligations to perform under the contract. Filed-rates may …

Grid Reliability Through Clean Energy, Hannah Jacobs Wiseman, Alexandra Klass, Joshua Macey, Shelley Welton

Journal Articles

In the wake of recent high-profile power failures, policymakers and politicians have asserted that there is an inherent tension between the aims of clean energy and grid reliability. But continuing to rely on fossil fuels to avoid system outages will only exacerbate reliability challenges by contributing to increasingly extreme climate-related weather events. These extremes will disrupt the power supply, with impacts rippling far beyond the electricity sector.

This Article shows that much of the perceived tension between clean energy and reliability is a failure of law and governance resulting from the United States’ siloed approach to regulating the electric grid. …

Circuit Split As To Whether Rejection Of Power Purchasing Agreements Are Subject To Bankruptcy Court Or Ferc Jurisdiction, Gabriela Zapata

Bankruptcy Research Library

(Excerpt)

Chapter 11 of title 11 of the United States Code (the “Bankruptcy Code”) enables troubled enterprises to be restructured, so that they can operate successfully in the future. Under section 365 of the Bankruptcy Code, a debtor in possession may reject a contract subject to bankruptcy court approval. The Federal Energy Regulatory Commission (“FERC”), however, has “exclusive jurisdiction” over the transmission of electric energy in interstate commerce, including power purchase agreements (“PPAs”). Accordingly, there is a dispute as to whether the rejection of a PPA is subject to bankruptcy court or FERC approval.

This memorandum addresses how courts have …

The New(Clear?) Electricity Federalism: Federal Preemption Of States’ “Zero Emissions Credit” Programs, Joel Eisen

Law Faculty Publications

This Article proposes and applies a “conscious disregard” test for resolving the upcoming appellate litigation that involves the conflict between federal authority over the electric grid and state laws providing subsidies to nuclear power plants in the form of “zero emissions credits” (ZECs). This test draws upon principles of conflict preemption, as elaborated in three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid under the Federal Power Act. It provides that if a state law explicitly aims to directly affect wholesale electricity market prices, terms or conditions, its subsidy program is impermissible …

Administrative Dissents, Sharon B. Jacobs

Publications

Commissioners, like judges, dissent. They do so at length, with vigor, and with persistence. Yet while separate judicial decisions are the subject of a rich literature, their administrative counterparts have long languished in obscurity. A closer look is warranted, however, because studying administrative dissent can enhance our understanding of internal agency operations as well as the relationships between agencies and other actors. This Article presents the results of an original review of separate statements at the Federal Energy Regulatory Commission and the Nuclear Regulatory Commission dating back four decades. It uses these findings to move beyond two common generalizations about …

The Brave New Path Of Energy Federalism, Jim Rossi

Vanderbilt Law School Faculty Publications

For much of the past 80 years courts have fixated on dual sovereignty as the organizing federalism paradigm under New Deal era energy statutes. Dual sovereignty’s reign emphasized a jurisdictional “bright line,” with a fixed, legalistic boundary between federal and state regulators. This Article explores how recent Supreme Court decisions limit dual sovereignty’s role as the organizing federalism principle under energy statutes.

These recent decisions do not approach federal-state jurisdiction as either/or proposition, but instead recognize it is concurrent in certain contexts. Concurrent jurisdiction opens up a brave new path of possibilities for energy federalism but also has been target …

Energy Deference, Sharon B. Jacobs

Publications

Electricity law is complex, and the Supreme Court knows it. Lawyers are familiar with the adage that generalist courts tend to defer to agency decisions where the subject matter is complex or technical. But what features of a case make the Court more or less likely to defer to the agency's judgment? And how exactly do deference regimes work in the presence of complexity? This essay offers insights gleaned from Court's opinion in Federal Energy Regulatory Commission v. Electric Power Supply Ass’n (“EPSA”). It explains, first, that Courts are highly deferential in energy cases due to both the complexity of …

Slides: Klamath Basin Agreements: Largest River Restoration Project In American History, Amy Cordalis

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Amy Cordalis, Staff Attorney, Yurok Tribe

34 slides

Slides: Moffat Collection System Project, Travis Bray

Innovations in Managing Western Water: New Approaches for Balancing Environmental, Social and Economic Outcomes (Martz Summer Conference, June 11-12)

Presenter: Travis Bray, Project Manager, Moffat Collection System Project, Denver Water

45 slides

Bypassing Federalism And The Administrative Law Of Negawatts, Sharon B. Jacobs

Publications

Presidential unilateralism has become a defining feature of the executive branch. But a related and equally important phenomenon has been largely ignored: federal agency efforts to circumvent statutory federalism boundaries. This move, which the Article calls "bypassing federalism, " involves using existing jurisdictional authority to work defacto, rather than dejure, reallocations of power. The Article explores agency bypassing through the lens of the Federal Energy Regulatory Commission's ("FERC's") promotion of demand response in electricity markets. Demand response refers to customer sales of negative watts, or "negawatts," back to the electrical grid. FERC, eager to promote demand-side management programs but stymied …

An Open Access Distribution Tariff: Removing Barriers To Innovation On The Smart Grid, Joel B. Eisen

Law Faculty Publications

This Article proposes that the Federal Energy Regulatory Commission (FERC) consider promulgating an Open Access Distribution Tariff (OADT) to open the nation's electric grid to new products and services at the consumer (distribution) level. Design of the OADT would be comparable to the Open Access Transmission Tariff that the FERC has used previously to open the nation's transmission wires. This Article argues that an OADT is necessary to create a smart electricity network that would be national, multimodal, and interactive. There is no smart electricity network at present, and there are numerous barriers to the development of open networking, such …

The Administrative State's Passive Virtues, Sharon B. Jacobs

Publications

Fifty years ago, Alexander Bickel famousy suggested that courts use tools like standing, ripeness, and the political question doctrine to avoid reaching the merits of difficult cases. Yet despite the increasingly central role of administrative agencies in government, there have been no efforts to date to apply Bickel's insights to the bureaucracy. This Article remedies that deficit. The Article provides a three-part taxonomy of administrative restraint and offers case studies from federal agencies such as the Federal Energy Regulatory Commission, the Environmental Protection Agency, and the Fish and Wildlife Service. It argues that agencies sometimes use restraint strategically for reasons …

Importing Energy, Exporting Regulation, James W. Coleman

Faculty Journal Articles and Book Chapters

This Article identifies and addresses a growing contradiction at the heart of United States energy policy. States are the traditional energy regulators and energy policy innovators — a role that has only grown more important without a settled federal climate policy. But federal regulators and market pressures are increasingly demanding integrated national and international energy markets. Deregulation, the rise of renewable energy, the shale revolution, and new sources of motor fuel precursors like crude and ethanol have all increased interstate energy trade.

The Article shows how integrated national energy markets are driving states to regulate imported fuel and electricity based …

Federal Energy Regulatory Commission, U.S., Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides a historical overview and contemporary analysis of the energy policymaking role played by the Energy Department's Federal Energy Regulatory Commission (FERC). FERC responsibilities include regulating the prices and interstate transmission of electricity, natural gas, and oil. Its responsibilities also include reviewing proposals to build and locate natural gas terminals, interstate natural gas pipelines, licensing hydropower projects, and regulating relevant mergers and securities acquisitions in these areas.

Smart Regulation And Federalism For The Smart Grid, Joel B. Eisen

Law Faculty Publications

This Article examines the “Smart Grid,” a set of concepts, technologies, and operating practices that may transform America’s electric grid as much as the Internet has done, redefining every aspect of electricity generation, distribution, and use. While the Smart Grid’s promise is great, this Article examines numerous key barriers to its development, including early stage resistance, a lack of incentives for consumers, and the adverse impacts of the federal-state tension in energy regulation. Overcoming these barriers requires both new technologies and transformative regulatory change, beginning with the development of a foundation of interoperability standards (rules of the road governing interactions …

Slides: Fuel Choice Determines Transmission, Doug Larson

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Doug Larson, Western Interstate Energy Board

26 slides

Justice Delayed: A Tribal Attorney’S Perspective On Elwha River Dam Removal And Ecosystem Restoration, Russell W. Busch

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Russell W. Busch, Attorney for the Lower Elwha Klallam Tribe

10 pages.

Slides: Lessons Learned From The Development And Implementation Of An Adaptive Management Plan At Three Hydropower Plants In Northeastern Washington State, Bob Dach

Best Management Practices and Adaptive Management in Oil and Gas Development (May 12-13)

Presenter: Bob Dach, Federal Activities Specialist, U.S. Fish and Wildlife Service, Mountain-Prairie Region, Lakewood, CO

11 slides

Protecting Biodiversity In The Relicensing Of Non-Federal Hydroelectric Projects In The United States: Consultation And Coordination Between Ferc And Fish, Wildlife And Water Quality Agencies And The Role Of The Endangered Species Act [Abstract], Michael Gheleta

Allocating and Managing Water for a Sustainable Future: Lessons from Around the World (Summer Conference, June 11-14)

2 pages.

Universal Service In Competitive Retail Electric Power Markets: Whither The Duty To Serve?, Jim Rossi

Vanderbilt Law School Faculty Publications

This article addresses whether traditional service obligations can coexist with retail competition. A rationale often given for universal service obligations in the telecommunications industry is that universal service, by promoting interconnectivity, enhances network system benefits for all customers. While the network economies argument may have worked to sustain universal service in the face of telecommunications deregulation, it is tenuous when applied to the natural gas and electricity industries. Many reformers look askance at the duty to serve in competitive retail utility service markets, often pointing to conflict between retail competition in electricity and the duty to serve. This article argues, …

Life Begins At 50: Ferc Relicensing Under The Federal Power Act, Thomas N. Russo

Dams: Water and Power in the New West (Summer Conference, June 2-4)

5 pages.

Environmental Benefits Of Reoperation, Relicensing, Decommissioning And Recapture, Richard Roos-Collins

Dams: Water and Power in the New West (Summer Conference, June 2-4)

35 pages.

Contains footnotes.

Dams: Their Costs And Benefits, Daniel F. Luecke

Dams: Water and Power in the New West (Summer Conference, June 2-4)

13 pages (includes illustrations).

Contains 3 pages of references.

The Attraction And Limits Of Textualism: The Supreme Court Decision In Pud No. 1 Of Jefferson County V. Washington Dep't Of Ecology, Michael P. Healy

Law Faculty Scholarly Articles

During its 1993 Term, the Supreme Court had the opportunity to consider the interaction between two federal statutory schemes: the Federal Power Act (FPA), which provides that the Federal Energy Regulatory Commission (FERC) has the authority to regulate and license hydropower projects, and the Clean Water Act (CWA), which provides that states have the authority to adopt water quality standards and that federal law will impose and enforce those standards in regulating emissions into, and the quality of, waters of the United States. The tension created by these two statutes lies not only between federal agencies, but more importantly, between …

New Legislative Approaches, Laird Noh

Water Organizations in a Changing West (Summer Conference, June 14-16)

7 pages.

Agenda: Moving The West's Water To New Uses: Winners And Losers, University Of Colorado Boulder. Natural Resources Law Center

Moving the West's Water to New Uses: Winners and Losers (Summer Conference, June 6-8)

Conference organizers and/or faculty included University of Colorado Law School professors Lawrence J. MacDonnell and Mark Squillace.

Moving the West's Water to New Uses: Winners and Losers will be the theme for this year's water conference, June 6-8 at the Law School in Boulder. The conference will consider the changing demands for water in the West and the need to reallocate a portion of the existing uses of water to new uses.

The first day will provide the background by looking at the most likely sources of water to meet these demands, including agriculture, federal water projects, interstate transfers, and …

San Luis Rey Indian Water Rights Settlement Act Of 1988, United States 100th Congress

Native American Water Rights Settlement Project

Federal Legislation: San Luis Rey Indian Water Rights Settlement Act of 1988, PL 100-675, 102 Stat. 4000 (Nov. 17, 1988). Parties: La Jolla Band of Luiseno Indians, Pala Band of Luiseno Mission Indians, Pauma Band of Luiseno Mission Indians, Rincon Band of Luiseno Mission Indians, San Pasqual Band of Diegueno Mission Indians, located in San Diego County, CA, US, CA, Escondido Mutual Water Company and Vista Irrigation District. The federal legislation was passed before the settlement agreement was developed. The purpose of the Act is to develop a reliable source of water for the Bands and to resolve their federal …

Opportunities For Improving The Ways We Use Water, Thomas M. Stetson

Western Water: Expanding Uses/Finite Supplies (Summer Conference, June 2-4)

40 pages.

Contains references.

The Federal Power Act's Controversial Municipal Preference: The Merwin Dam Dispute And Legislative Proposals To Amend Federal Hydro-Licensing Procedures, Daniel H. Cole

Articles by Maurer Faculty

For more than a half-century, the Federal Energy Regulatory Commission (FERC or Commission) and its predecessor, the Federal Power Commission (FPC), regulated hydroelectric development of the nation's rivers under the Federal Power Act (FPA) with little interference by Congress.' However, increasing criticism of the FERC has reawakened congressional interest in hydropower regulation.2 Congress recently considered a number of proposals to amend the FPA.8 Of these, seven related directly to a controversy born in the 1970s between public and private power:4 the issue of preference in competitive FERC relicensing proceedings.

Section 7(a) of the Federal Power Act directs the FERC to …

Agenda: The Federal Impact On State Water Rights, University Of Colorado Boulder. Natural Resources Law Center

The Federal Impact on State Water Rights (Summer Conference, June 11-13)

Conference organizers and/or speakers included University of Colorado School of Law professors James N. Corbridge, Jr., David H. Getches, Lawrence J. MacDonnell and Richard B. Collins.

In general, water rights are a matter of state law. However, the availability and development of water are affected by important federal rights, policies and programs. In this conference, an outstanding group of private practitioners, government representatives and academics consider this important topic.