08/12/2022 - Comment Filed - Electricity Law Initiative

Electricity Law Initiative Director Authors Brief for 26 Law Professors

by Ari Peskoe

Electricity Law Initiative Director Ari Peskoe filed an amicus brief in the US Third Circuit Court of Appeals that was signed by 26 energy law professors. Co-written with University of Richmond professor Joel Eisen, the brief supports the Federal Energy Regulatory Commission (FERC) in a case about market rules that facilitate the deployment of clean energy.

The amicus brief responds to an argument filed by electric generation companies about the phrase “unduly discriminatory” in the Federal Power Act. They claim Congress used the word discriminatory to connect the law to Constitutional rules known as the dormant Commerce Clause doctrine in order to obligate FERC to police the spillover effects of state policies.

The amicus brief rebuts this theory. It provides the Court with a historical account of the word discrimination in laws regulating common carriers and utilities. Discrimination in these laws refers to similarly situated customers receiving unequal service from a utility provider. The brief shows that prohibiting discrimination is a standard feature of such laws. Tracing the prohibition to the common law, the brief shows that States began codifying anti-discrimination rules by the mid-nineteenth century and Congress followed in 1887 with the Interstate Commerce Act. The brief explains that the FPA is a direct descendant of these earlier laws. The dormant Commerce Clause simply has no role in this history.

Finally, the brief also responds to generators’ claims about the dormant Commerce Clause. It shows that Petitioners overextend the rarely invoked extraterritoriality prong of the dormant Commerce Clause.