54:5 Regulating Reliability

Abstract

For too long, courts took a limited view of the dual jurisdiction between state and federal actors under the Federal Power Act. That changed when three new energy Supreme Court cases opened the door to a broader, and more functional interpretation of an eighty-year-old statute. This Article uses this analytical adjustment in energy federalism to explore its implications for authority over reliability of the electric system. The same statutory bright lines sharply divide authority over reliability between state and federal actors, but emerging energy initiatives surrounding distributed rooftop solar, carbon regulation, cybersecurity, and energy storage are placing pressure on federal actors to stretch beyond their jurisdictional sphere to address the impacts of these state-controlled activities on the federally-controlled grid.
This Article uses these jurisdictional crossovers to explore possible theoretical justifications for federal intervention deeper into the reliability of the entire system and possible legal avenues for this federal stretch. Reliability of the electric grid is a critical cornerstone of our economy. It is deserving of a new, more integrated framework that recognizes the interconnection of federal and state reliability efforts and treats reliability as an attribute of the grid that transcends artificial jurisdictional boundaries.