Amicus Curiae Brief of Interested Energy Law Scholars in Support of the Petitioners (FERC v. Electric Power Supply Association, U.S. Supreme Court)

Abstract

This amicus brief was filed in the Federal Energy Regulatory Commission v. Electric Power Supply Association energy law demand response case (and companion case brought by EnerNOC and others), which the U.S. Supreme Court will hear in fall 2015. It was co-authored by Joel Eisen (University of Richmond School of Law), Emily Hammond (The George Washington University Law School), Richard Pierce (Counsel of Record; The George Washington University Law School), and Jim Rossi (Vanderbilt University Law School). Amici curiae are 26 law professors who have significant research and teaching experience in the field of energy law, with a particular focus on electric power markets. The brief was filed in support of petitioners (FERC and demand response firms), and raises two different arguments in support of reversing the decision of the District of Columbia Circuit Court of Appeals (Electric Power Supply Ass’n v. FERC, 753 F.3d 216 (D.C. Cir. 2014)). Both arguments are based on what Amici believe are fundamental misinterpretations of the Federal Power Act and applicable precedents. Amici believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that FERC lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which mandates that FERC must remedy “practices . . . affecting” wholesale electricity rates to ensure such rates are just and reasonable. Moreover, it ignores FERC’s reasonable interpretation of its statutory authority. Amici direct their arguments to the jurisdictional issue only, and take no position on the second issue for which the Supreme Court has granted certiorari.