Until recently, the Supreme Court interpreted the Federal Power Act (FPA) to draw an impermeable boundary between the jurisdiction of the Federal Energy Regulatory Commission (FERC) and those of state public utility commissions. But the Court’s recent decisions in FERC v. Electric Power Supply Association (EPSA) and Hughes v. Talen Energy Marketing, LLC appear to relax the formalistic test traditionally used to resolve that boundary, upholding a “program of cooperative federalism” and creating a zone of concurrent jurisdiction.
Both cases vindicate federal authority against claims for state jurisdiction, but by acknowledging the degree to which the traditional domains of FERC and the states interweave and by endorsing cooperative federalism under the FPA, their combination also suggests an expanded zone of influence for the states. Hughes even ends with a direct invitation to the states to continue innovating. This invitation likely strikes a chord with states like New York and California, which have recently adopted among the most aggressive renewable energy mandates in the United States.
This Note examines, through the lens of state policymakers in New York and California, the extent to which the new jurisprudence will help states to reach their ambitious renewable energy goals in the absence of a comprehensive federal policy. Achieving these goals will likely require the use of programs that straddle the traditional federal–state jurisdictional divide. This Note analyzes four such policy tools: net metering, feed-in tariffs, mandatory bilateral contracting, and limitations on out-of-state power. It concludes that EPSA and Hughes give states that plan to enact these policies significant legal ground to stand on. But each of these tools will still require FERC’s support to be optimally successful. Without it, achieving states’ ambitious goals may remain just out of reach.