EnerNOC, Inc. v. Electric Power Supply Association

EnerNOC, Inc. v. Electric Power Supply Association

Argument preview: Justices to hear oral argument on additional time for sex offenders who violate terms of supervised release – Amy Howe

Argument analysis: Meandering argument suggests justices likely to narrow bankrupts’ power to rescind licenses in bankruptcy – Ronald Mann

Opinion analysis: A win for one taxpayer, but not many more – Daniel Hemel

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Orders

RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)

Opinions

Conference

Orders

MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

UNITED STATES V. HAYMOND (17-1672)

MONT V. UNITED STATES (17-8995)

THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

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Federal Energy Regulatory Commission v. Electric Power Supply Association

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
14-841	D.C. Cir.	Oct 14, 2015 Tr.Aud.	Jan 25, 2016	6-2	Kagan	OT 2015

Holding: The Federal Power Act authorizes the Federal Energy Regulatory Commission to regulate “ the sale of electric energy at wholesale in interstate commerce,” including both wholesale electricity rates and any rule or practice “affecting” such rates, but it leaves the regulation of “any other sale” of electricity to the states. The FPA provides FERC with the authority to regulate wholesale market operators' compensation of demand response bids because the practices at issue directly affect wholesale rates, FERC has not regulated retail sales, and the contrary view would conflict with the FPA's core purposes. Moreover, FERC's decision to compensate demand response providers at the locational marginal price, which is the same price paid to generators, instead of at the locational marginal price less the retail rate for electricity, is not arbitrary and capricious when FERC provided a detailed explanation for that decision and responded at length to contrary views.

Judgment: Reversed and remanded, 6-2, in an opinion by Justice Kagan on January 25, 2016. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined. Justice Alito took no part in the consideration or decision of the cases.

Opinion analysis: Court blesses lower wholesale power rates (Lyle Denniston)
Breyer stays on FERC case after stock sale (Lyle Denniston)
Argument analysis: When an empty chair may count the most (Lyle Denniston)
Argument preview: Evening out supply and demand (Lyle Denniston)
Court enlists U.S. views on Colorado marijuana case (Lyle Denniston)
Petitions of the day (Maureen Johnston)

Date	Proceedings and Orders (key to color coding)
Dec 5 2014	Application (14A599) to extend the time to file a petition for a writ of certiorari from December 16, 2014 to January 15, 2015, submitted to The Chief Justice.
Dec 8 2014	Application (14A599) granted by The Chief Justice extending the time to file until January 15, 2015.
Jan 15 2015	Petition for a writ of certiorari filed. (Response due February 17, 2015)
Feb 11 2015	Order extending time to file response to petition to and including March 19, 2015, for all respondents.
Feb 11 2015	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for respondents Electric Power Supply Association, et al. VIDED.
Feb 17 2015	Brief of respondent California Independent System Operator in support filed. VIDED.
Feb 17 2015	Motion for leave to file amicus brief filed by NRG Energy, Inc. VIDED.
Feb 17 2015	Brief amici curiae of Fourteen Utilities Including Consolidated Edison Co. of New York and Affiliates, et al. filed. VIDED.
Feb 17 2015	Brief of respondents California Public Utilities Commission, et al. in support filed. VIDED.
Feb 17 2015	Brief amici curiae of Delaware Division of the Public Advocate, et al. filed. VIDED.
Feb 18 2015	Brief amici curiae of Electricity Consumers and Demand Response Providers filed. VIDED.
Mar 19 2015	Brief of respondents Electric Power Supply Association, et al. in opposition filed. VIDED.
Apr 7 2015	Reply of petitioners EnerNOC, Inc., et al. filed. VIDED. (Distributed)
Apr 8 2015	DISTRIBUTED for Conference of April 24, 2015.
Apr 27 2015	DISTRIBUTED for Conference of May 1, 2015.
May 4 2015	Motion for leave to file amicus brief filed by NRG Energy, Inc. GRANTED. Justice Alito took no part in the consideration or decision of this motion.
May 4 2015	Petition GRANTED The petition for a writ of certiorari in 14-840 is GRANTED. The cases are consolidated and a total of one hour is allotted for oral argument. The cases are granted limited to the following Questions: 1) Whether the Federal Energy Regulatory Commission reasonably concluded that it has authority under the Federal Power Act, 16 U. S. C. 791a et seq., to regulate the rules used by operators of wholesale electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. 2) Whether the Court of Appeals erred in holding that the rule issued by the Federal Energy Regulatory Commission is arbitrary and capricious. Justice Alito took no part in the consideration or decision of these petitions. VIDED.
May 13 2015	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioner EnerNOC.
May 27 2015	The time to file the joint appendix and petitioners' briefs on the merits is extended to and including July 9, 2015. VIDED
May 27 2015	The time to file respondents' briefs on the merits is extended to and including August 31, 2015. VIDED
Jun 22 2015	Letter of amendment to financial disclosure statement received from counsel for respondents Electric Power Supply Association, et al. VIDED
Jun 22 2015	Consent to the filing of amicus curiae briefs, In support of eithr party or of neither party, received from counsel for Electric Supply Association, et al. VIDED.
Jun 29 2015	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioners EnergyConnect, Inc., Coalition of MISO Transmission Customers, and PJM Industrial Coalition, and Viridity Energy, Inc. VIDED.
Jul 6 2015	Consent to the filing of amicus curie briefs, in support of either party or of neither party, received from counsel for PJM Interconnection LLC VIDED.
Jul 8 2015	Letter from counsel for respondent in support California Independent System Operator (CAISO) notifying Clerk that it will not be filing a brief on the merits in these proceedings. VIDED.
Jul 9 2015	Brief of petitioners EnerNOC, Inc., et al. (Private Petitioners) filed. VIDED.
Jul 9 2015	Joint appendix filed. (Two Volumes) VIDED. (Statement of costs filed.)
Jul 9 2015	Brief of respondent Joint States in support of FERC filed. VIDED.
Jul 9 2015	Brief of respondent California Public Utilities Commission in support of FERC filed. VIDED.
Jul 9 2015	Brief of respondent PJM Interconnection, LLC in support of FERC filed. VIDED.
Jul 10 2015	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioner in No. 14-840. VIDED
Jul 16 2015	Brief amicus curiae of NRG Energy, Inc. in support of neither party filed. VIDED.
Jul 16 2015	Brief amicus curiae of Electricity Consumers and Demand Response Providers filed. VIDED.
Jul 16 2015	Brief amicus curiae of Charles J. Cicchetti filed. VIDED.
Jul 16 2015	Brief amicus curiae of Energy Law Scholars filed. VIDED.
Jul 16 2015	Brief amicus curiae of Microgrid Resources Coalition filed. VIDED.
Jul 16 2015	Brief amicus curiae of Stanford Economics Professor Charles D. Kolstad filed. VIDED.
Jul 16 2015	Brief amici curiae of Grid Engineers and Experts in support of neither party filed. VIDED.
Jul 16 2015	Brief amici curiae of Illinois, et al filed. VIDED.
Jul 16 2015	Brief amicus curiae of The Guarini Center on Environmental, Energy and Land Use Law at New York University School of Law filed. VIDED.
Jul 16 2015	Brief amici curiae of Conservation Law Foundation, et al. filed. VIDED.
Jul 29 2015	SET FOR ARGUMENT on Wednesday, October 14, 2015. VIDED
Jul 31 2015	CIRCULATED
Aug 12 2015	Record requested from U.S.C.A. District of Columbia Circuit.
Aug 26 2015	Record received from U.S.C.A. District of Columbia Circuit is electronic and available on PACER. A copy of the transcript of oral arguments is available electronically.
Aug 31 2015	Brief of respondents Midwest Load-Serving Entities filed. VIDED. (Distributed)
Aug 31 2015	Brief of respondents Electric Power Supply Association, et al. filed. VIDED. (Distributed)
Sep 1 2015	Brief amici curiae of CES and Dr. Silkman filed. VIDED. (Distributed)
Sep 4 2015	Record from the Federal Energy Regulatory Commission, sent by the U.S. Dept. of Justice is electronic. The record can be accessed on the Federal Energy Regulatory Commission public eLibrary website.
Sep 4 2015	Motion for divided argument filed by the Solicitor General. VIDED.
Sep 4 2015	Brief amici curiae of North Carolina Utilities Commission, et al. filed. VIDED. (Distributed)
Sep 8 2015	Brief amici curiae of Robert L. Borlick, et al. filed. VIDED. (Distributed)
Sep 8 2015	Brief amici curiae of Indiana, et al. filed. VIDED. (Distributed)
Sep 8 2015	Brief amicus curiae of Public Utility Law Project of New York filed. VIDED. (Distributed)
Sep 8 2015	Brief amicus curiae of Southern Company Services, Inc. filed. VIDED. (Distributed)
Sep 8 2015	Brief amici curiae of Nuclear Energy Institute and America's Natural Gas Alliance filed. VIDED. (Distributed)
Sep 8 2015	Brief amicus curiae of Public Service Commission of New York filed. VIDED. (Distributed)
Sep 24 2015	Reply of petitioners EnerNOC, Inc., et al. (Private Petitioners) filed. VIDED. (Distributed)
Sep 25 2015	Reply of respondent California Public Utilities Commission filed. VIDED. (Distributed)
Sep 28 2015	Motion for divided argument filed by the Solicitor General GRANTED. Justice Alito took no part in the consideration or decision of this motion. VIDED
Sep 29 2015	Reply of respondents Joint States filed. VIDED. (Distributed)
Oct 14 2015	Argued. For federal petitioner: Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, D. C. For private petitioners: Carter G. Phillips, Washington, D. C. For respondents: Paul D. Clement, Washington, D. C. VIDED
Oct 15 2015	Letter from Clerk of Court to counsel of record for the parties in No. 14-840 & No. 14-841.
Jan 25 2016	Judgment REVERSED and case REMANDED. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined. Scalia, J. filed a dissenting opinion, in which Thomas, J., joined. Alito J., took no part in the consideration or decision of the cases. VIDED

Featured Posts

Argument preview: Justices to hear oral argument on additional time for sex offenders who violate terms of supervised release – Amy Howe

Argument analysis: Meandering argument suggests justices likely to narrow bankrupts’ power to rescind licenses in bankruptcy – Ronald Mann

Opinion analysis: A win for one taxpayer, but not many more – Daniel Hemel
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The Supreme Court released orders from the February 15 conference on Tuesday; the justices added County of Maui, Hawaii v. Hawaii Wildlife Fund to next term's merits docket and summarily reversed in Moore v. Texas.
On Wednesday the justices released their opinions in Dawson v. Steager and Timbs v. Indiana.
On Tuesday, the justices heard oral argument in Return Mail Inc. v. United States Postal Service.
On Wednesday, the justices heard oral argument in Mission Product Holdings Inc. v. Tempnology, LLC.
On Friday, the justices will meet for their February 22 conference.
Major Cases
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- New York State Rifle & Pistol Association Inc. v. City of New York, New York
  Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Dawson v. Steager By taxing the federal pension benefits of U.S. Marshals Service retiree James Dawson, while exempting from taxation the pension benefits of certain state and local law enforcement officers, West Virginia unlawfully discriminates against Dawson as 4 U.S.C. §111 forbids.
- Timbs v. Indiana The Eighth Amendment’s excessive fines clause is an incorporated protection applicable to the states under the 14th Amendment’s due process clause.
- Moore v. Texas The Texas Court of Criminal Appeals’ redetermination that Bobby James Moore does not have an intellectual disability and is thus eligible for the death penalty is inconsistent with the Supreme Court's 2017 decision in Moore v. Texas.
see all this term’s cases »
Current Relists
- Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
- Baxter v. United States (1) Whether a conviction for robbery under Florida law qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably requires the use of “violent force” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
- Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
More Petitions »
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Summary reversals 3

Merits cases granted to date 74

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Justice Sotomayor at the Library of Congress

On February 14, Justice Sonia Sotomayor appeared at the Library of Congress with Chief Judge Robert Katzmann of the U.S. Court of Appeals for the 2nd Circuit and Professor Eloise Pasachoff of the Georgetown University Law Center for the Supreme Court Fellows Annual Lecture.

Peabody Award
Awarded the Peabody Award for excellence in electronic media.
Sigma Delta Chi
Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
National Press Club Award
Awarded the National Press Club's Breaking News Award for coverage of the Affordable Care Act decision.
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Awarded the Webby Award for excellence on the internet.

15
Conference

19
Orders
RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

20
MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)
Opinions

22
Conference

25
Orders
MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

26
UNITED STATES V. HAYMOND (17-1672)
MONT V. UNITED STATES (17-8995)

27
THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

Cases argued	45
Cases decided	13
Summary reversals	3
Merits cases granted to date	74