Electric Power Supply Association v. Federal Energy Regulatory Commission, et al.

The Federal Power Act, 16 U.S.C. § 824 et seq, establishes the framework for federal regulation of the electric power industry. Its fundamental premise is that, in exchange for enormously costly infrastructure investments to supply a public good, public utilities like generators retain the right to set their rates in the first instance, subject to reversal by the Federal Energy Regulatory Commission (FERC) only where those rates are unjust, unreasonable, or unduly discriminatory. Since the advent of regulatory reforms in the late 1990s and early 2000s, much of the electric grid in this country is now governed by sub-regulatory Regional Transmission Organizations and Independent System Operators, which—with oversight from FERC— largely set prices for wholesale electricity products via auctions. The question presented is whether a public utility supplier’s offer into such an auction structure, whereby it offers to provide a given electricity product at or above a specified price, is a “rate[] * * * demanded” under Section 205 of the Federal Power Act (16 U.S.C. § 824d(a)), and therefore may be set aside only by FERC (and not dictated by non-governmental third parties), and then only upon a finding that it is unjust, unreasonable, or unduly discriminatory.