FERC Federalism: Blurred Lines After DC Circ. Decisions

Law360, New York (August 14, 2014, 11:06 AM EDT) -- On July 8, 2014, the D.C. Circuit denied the petition for review filed by New England Power Generators Association Inc. and other market participants' regarding four Federal Energy Regulatory Commission orders related to the Independent System Operator-New England Inc.'s Forward Capacity Market.[1] The circuit court held that the orders on review fell within FERC's statutory ratemaking authority conferred by the Federal Power Act because the commission's ratemaking authority extends to parameters of the relevant capacity markets related to the price of capacity.[2] Additionally, the court deferred to FERC's effort to craft mitigation measures responsive to the needs of the ISO-NE FCM because the commission properly balanced competing interests and based its decision on substantial evidence.[3] This decision and others scrutinizing FERC's jurisdiction demonstrate a willingness by the D.C. Circuit to delve into the murky limits of FERC jurisdiction and FERC versus state authority to regulate energy markets, albeit not always consistently....

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