Prevailing in two recent US Court of Appeals’ cases, the states of Illinois and New York have successfully navigated the narrow path of protecting critical power generation resources while working within the cooperative federalism structure established by the Federal Power Act (FPA). In Electric Power Supply Association v. Star, 904 F.3d 518 (7th Cir. 2018) (Easterbrook, J.) (Star), the Seventh Circuit affirmed Illinois’ statutory scheme to support its nuclear power generators, holding it was not preempted by the FPA. Two weeks later, the Second Circuit affirmed a similar regulatory regime in New York as likewise not preempted by FPA. See Coalition for Competitive Electricity, Dynergy, Inc. v. Zibelman, 906 F.3d 41 (2d Cir. 2018) (Zibelman).
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