November 01, 2016

The Supreme Court’s Platonic Energy Policy

Scott B. Grover

With more than a decade having passed since New York v. FERC, 535 U.S. 1 (2002), the U.S. Supreme Court recently returned to the boundaries of federal and state authority over national energy policy. Across three factually unrelated cases, decisions for which issued during a 12-month span bridging the 2014 and 2015 terms, the Court considered and determined the extent to which state action (in two cases) and federal action (in the other) constituted permissible or impermissible exercise of power under the provisions of the closely related Federal Power Act (FPA) and Natural Gas Act (NGA). And while it might be tempting to conclude that federal authority took the prize, a collective analysis of the three decisions supports the view that the states made out well for themselves. In what is arguably to the states’ benefit, the bright line between federal and state authority that many wanted is not going to be drawn by the Court any time soon.

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