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Who Controls Fracking?: Two Critical Court Decisions - Podcast

Environmental Law & Property Rights Practice Group Podcast
Eric R. Claeys, Hannah J. Wiseman May 24, 2016

Unconventional oil and gas production (or "fracking") has generated new wealth, new jobs, and new sources of energy for many Americans. But fracking has also generated local congestion and pollution problems, and some believe that it creates significant risks for state fresh water supplies or global climate change. In many states, localities opposed to fracking are trying to ban the practice or impose long moratoriums on it within municipal limits, notwithstanding statewide political support for fracking. The tensions between state-level energy policies and local restrictions raise legal questions about when statewide energy regulations should preempt local efforts to restrict fracking using local powers over land use. Earlier this month, the Colorado Supreme Court handed down two new and important preemption decisions, City of Fort Collins v. Colorado Oil & Gas Association, and Longmont v. Colorado Oil & Gas Association. Our experts discussed both cases, their significance in Colorado, and their implications for fracking and preemption law elsewhere in the United States.

Featuring:

  • Prof. Eric R. Claeys, Professor of Law, George Mason University School of Law
  • Prof. Hannah Wiseman, Attorneys' Title Professor, Florida State University College of Law

Hughes v. Talen Energy Marketing - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring James Coleman
James Coleman May 16, 2016

On April 19, 2016, the Supreme Court decided Hughes v. Talen Energy Marketing and several consolidated companion cases. The Court considered whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process. The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years. The questions before the Supreme Court were: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis. 

By a vote of 8-0, the Supreme Court affirmed the judgment of the Fourth Circuit. Justice Ginsburg delivered the opinion of the Court, holding that Maryland's regulatory program--which disregards an interstate wholesale rate set by FERC--is preempted by the Federal Power Act, which vests in FERC exclusive jurisdiction over interstate wholesale electricity rates. Justice Ginsburg’s opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan. Justice Sotomayor filed a concurring opinion. Justice Thomas filed an opinion concurring in part and concurring in the judgment. 

To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.

Hughes v. Talen Energy Marketing - Post-Argument SCOTUScast

SCOTUScast 3-7-16 featuring James Coleman
James Coleman March 07, 2016

On February 24, 2016, the Supreme Court heard oral argument in the consolidated cases Hughes v. Talen Energy Marketing and CPV Maryland, LLC v. Talen Energy Marketing.

In this case, the Supreme Court considers whether Maryland encroached on the Federal Energy Regulatory Commission’s (FERC) rate-setting power when directing its local electricity distribution companies, via a “Generation Order,” to enter into a fixed-rate contract with an energy provider selected through a bidding process.  The U.S. Court of Appeals for the Fourth Circuit held that Maryland’s Generation Order was preempted by federal law because it effectively set the rates the producer would receive for sales resulting from a regional auction overseen by FERC, and in effect also extended a three-year fixed price period set under the Federal Power Act to twenty years.

The questions before the Supreme Court are: (1) Whether, when a seller offers to build generation and sell wholesale power on a fixed-rate contract basis, the Federal Power Act field-preempts a state order directing retail utilities to enter into the contract; and (2) whether FERC’s acceptance of an annual regional capacity auction preempts states from requiring retail utilities to contract at fixed rates with sellers who are willing to commit to sell into the auction on a long-term basis. 

To discuss the case, we have James Coleman, who is Assistant Professor at University of Calgary Law School.
 

Federal Energy Regulatory Commission v. Electric Power Supply Association - Post-Decision SCOTUScast

SCOTUScast 2-17-16 featuring James Coleman
James Coleman February 17, 2016

On January 25, 2016, the Supreme Court decided several energy cases consolidated under the heading Federal Energy Regulatory Commission v. Electric Power Supply Association. These cases concern a practice called “demand re­sponse,” in which operators of wholesale markets pay electricity consumers for commitments not to use power at certain times. In the regulation challenged here, the Federal Energy Regulatory Commission (FERC) required those market operators, in specified circumstances, to compensate the two services equivalently—that is, to pay the same price to demand response providers for conserving energy as to generators for making more of it. The U.S. Court of Appeals for the D.C. Circuit vacated this regulation, however, holding it beyond the FERC’s authority under the Federal Power Act as well as arbitrary and capricious, for failure to justify adequately a potential windfall to demand response providers.

The Supreme Court granted certiorari on two questions: (1) Does the Federal Power Act permit FERC to regulate these demand response transactions at all, or does any such rule impinge on the States’ residual authority? (2) Even if FERC has the requisite statutory power, did FERC fail to justify adequately why demand response providers and electricity producers should receive the same compensation? 

By a vote of 6-2, the Court reversed the judgment of the D.C. Circuit and remanded the case, holding that (1) FERC did possess adequate regulatory authority under the Federal Power Act; and (2) FERC’s decision to compensate demand response providers at locational marginal price was not arbitrary and capricious. Justice Kagan delivered the opinion of the Court, in which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito was recused from this case.

To discuss the case, we have James Coleman, who is assistant professor at the University of Calgary, Faculty of Law and Haskayne School of Business.

Federalism, the Environment, Land Use, and Energy Independence - Event Audio/Video

2016 Annual Western Chapters Conference
Anthony L. François, Richard Frank, Donald J. Kochan, Justin Pidot, Milan D. Smith, Jennifer Perkins February 17, 2016

Some states have criticized Washington overreach on a number of energy and environmental issues, from fracking, the sale of public lands, utility regulation, and clean air and water regulation. Many state attorneys general have banded together to challenge alleged overreach in the environmental arena, including litigation against the EPA’s coal-fired power plant regulation plans. What are the proper federalism models for environmental regulation? What role should the courts and state attorneys general play? A panel of experts will discuss.

This panel was part of the 2016 Annual Western Chapters Conference at The Ronald Reagan Presidential Library in Simi Valley, CA on January 30, 2016.

Federalism, the Environment, Land Use, and Energy Independence

  • Mr. Anthony L. (Tony) François, Senior Staff Attorney, Pacific Legal Foundation
  • Prof. Richard Frank, Director, California Environmental Law and Policy Center, UC Davis School of Law
  • Prof. Donald J. Kochan, Associate Dean for Research and Faculty Development; Dale E. Fowler School of Law, Chapman University
  • Prof. Justin Pidot, Sturm College of Law, University of Denver
  • Moderator: Hon. Milan D. Smith, Jr., U.S. Court of Appeals, 9th  Circuit
  • Introduction: Ms. Jennifer Perkins, Assistant Solicitor General, AG Opinions and Ethics at Arizona Attorney General's Office

The Ronald Reagan Presidential Library
Simi Valley, CA