The Nickel Report

Fifty years ago, the Supreme Court held that in the Federal Power Act (FPA), Congress had drawn a “bright line, easily ascertained, between federal and state jurisdiction…by making [federal] jurisdiction plenary and extending it to all wholesale sales in interstate commerce except those which Congress has made explicitly subject to regulation by the States.” FPC v. Southern California Edison Co. (Colton), 376 U.S. 205, 206-07 (1964). Several recent federal court decisions, including two decisions addressing the implementation of Zero Emissions Credits (ZECs) by New York and Illinois, highlight just how blurred that “bright line” has become in an era where Federal Energy Regulatory Commission (FERC) regulation relies primarily on markets, rather than cost-of-service ratemaking, to ensure just, reasonable and not unduly discriminatory electricity prices. For good measure, these decisions also break new ground on the justiciability of FPA preemption claims brought by private parties in federal court.