Christiansen – The FPA and the Private Right to Preempt

Matthew R. Christiansen · September 2016
84 Geo. Wash. L. Rev. Arguendo 129

The boundary between state and federal authority over the electricity sector is in flux. A host of new technologies is rapidly changing how electricity is generated and consumed. At the same time, state and federal regulators are adopting novel laws and regulations to cope with these changes and to address other priorities, such as reducing carbon pollution from the electricity sector. Together, these technological and regulatory changes have called into question the basic division between state and federal jurisdiction over the electricity sector that has persisted since Congress passed the Federal Power Act (“FPA”) in 1935. As a result, in cases across the country, courts are wrestling with the question of whether the FPA preempts many of these novel state regulations. Continue reading.

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