How the Filed Rate Doctrine Wreaks Havoc With Energy Market Development and Policy ... And What Courts Can Do About It

Abstract

The filed rate doctrine is a venerable doctrine of public utility regulation. When a court applies it - and courts frequently do - the doctrine serves as a litigation shield for regulated utilities. Federal courts invoking this shield refuse to exercise jurisdiction over an alleged violation of antitrust, tort or contract claim whose resolution would require a departure from a utility's filed rate. Like many venerable legal rules, the filed rate doctrine is rarely questioned. For over a century, it has served many important purposes. However, with deregulated wholesale electric power markets at the federal level and various degrees of deregulation across the states, both the doctrine's continued applicability and usefulness are suspect. Moreover, as recent examples in the industry suggest, presumptive application of the filed rate doctrine by both firms and courts can cause affirmative harm for energy market development and policy. For example, a recent U.S. District Court decision in Texas applied the filed rate doctrine in an astonishingly broad manner, precluding antitrust claims against energy suppliers in the deregulated Texas wholesale power market and leaving those harmed by market abuses without any legal or administrative remedy. The Essay draws on examples such as this to illustrate the serious need for reassessment of the doctrine by federal courts in the energy context. It is argued that both courts and litigators have at their disposal ways of lowering the filed tariff shield to allow more efficient energy markets to develop, better furthering the goals of energy policy.