About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


45 Ecology L. Currents 132 (2018-2019)

handle is hein.journals/ecolwcur45 and id is 1 raw text is: THE ELECTRIC GRID CONFRONTS THE DORMANT COMMERCE CLAUSE by Sam Kalen & Steven Weissman Many modern energy dialogues gravitate toward a conversation about the present status of the jurisdictional divide between state and federal authority over the regulation of wholesale sales of energy. A March 3, 2017 Bureau of National Affairs (BNA) article began by observing how the utility industry believes the biggest challenges for the Federal Energy Regulatory Commission (FERC) will involve U]urisdictional battles between state and federal control in the energy markets. And last fall, a joint report by centers at Duke University, University of North Carolina, and Harvard observed how [t]he line between federal and state jurisdiction over the electricity sector is shifting. FERC once played a limited role in sector oversight, but regionalization of the electric grid and development of interstate markets for electricity, electric capacity, and transmission development have expanded its responsibilities. A similar theme echoed in the Obama Administration Department of Energy (DOE) Quadrennial Energy Report. This jurisdictional conundrum primarily has played out on two fronts: first, whether state-related energy programs are preempted by the Federal Power Act (FPA), and second, whether such state programs run afoul of the dormant Commerce Clause. As the electric grid began expanding across state boundaries in the first quarter of the twentieth century, a similar question surfaced about which entities-whether states, the federal government, or regional agencies- ought to regulate sales and transmission of electric energy. Indeed, Justice Frankfurter and James Landis published a landmark 1925 article on the potential use of interstate compacts for promoting regional electric superpowers, an idea supported by such notables as Herbert Hoover. 1 The Federal Power Commission (FPC), which at the time only enjoyed jurisdiction over hydroelectric facilities, Copyright © 2018 by Sam Kalen & Steven Weissman 1. Felix Frankfurter & James Landis, The Compact Clause of the Constitution: A Study in Interstate Adjustments, 34 YALE L. J. 685 (1925). 132