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Federal Energy Regulatory Commission v. Electric Power Supply Association

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Docket No. Op. Below Argument Opinion Vote Author Term
14-840 D.C. Cir. Oct 14, 2015 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.

SCOTUSblog Coverage

DateProceedings and Orders (key to color coding)
Dec 5 2014Application (14A596) 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 2014Application (14A596) granted by The Chief Justice extending the time to file until January 15, 2015.
Jan 15 2015Petition for a writ of certiorari filed. (Response due February 17, 2015)
Jan 15 2015Appendix of Federal Energy Regulatory Commission filed.
Feb 11 2015Order extending time to file response to petition to and including March 19, 2015, for all respondents.
Feb 11 2015Consent 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 2015Brief of respondent California Independent System Operator in support filed. VIDED.
Feb 17 2015Motion for leave to file amicus brief filed by NRG Energy, Inc. VIDED.
Feb 17 2015Brief amici curiae of Fourteen Utilities Including Consolidated Edison Co. of New York and Affiliates, et al. filed. VIDED.
Feb 17 2015Brief of respondents California Public Utilities Commission, et al. in support filed. VIDED.
Feb 17 2015Brief amici curiae of Delaware Division of the Public Advocate. et al. filed. VIDED.
Feb 18 2015Brief amici curiae of Electricity Consumers and Demand Response Providers filed. VIDED.
Mar 19 2015Brief of respondents Electric Power Supply Association, et al. in opposition filed. VIDED.
Apr 7 2015Reply of petitioners EnerNOC, Inc., et al. filed. (Distributed)
Apr 8 2015DISTRIBUTED for Conference of April 24, 2015.
Apr 8 2015Reply of petitioner Federal Energy Regulatory Commission filed. (Distributed)
Apr 27 2015DISTRIBUTED for Conference of May 1, 2015.
May 4 2015Motion 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 2015Petition GRANTED The petition for a writ of certiorari in 14-841 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. VIDED. Justice Alito took no part in the consideration or decision of this petition.
May 27 2015The time to file the joint appendix and petitioners' briefs on the merits is extended to and including July 9, 2015. VIDED
May 27 2015The time to file respondents' briefs on the merits is extended to and including August 31, 2015. VIDED
Jun 2 2015Consent to the filing of amicus curiae briefs, in support of either party or neither party, received from counsel for the petitioner EnerNOC. VIDED.
Jun 22 2015Letter of amendment to financial disclosure statement received from counsel for respondents Electric Power Supply Association, et al. VIDED
Jun 22 2015Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for Electric Power Supply Association, et al. VIDED.
Jun 29 2015Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for petitioners Energy Connect, Inc., Coalition of MISO Transmission Customers, and the PJM Industrial Coalition, and Viridity Energy, Inc. VIDED.
Jul 8 2015Letter 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 2015Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for PJM Interconnection, LLC. VIDED.
Jul 9 2015Joint appendix filed. (Two Volumes) VIDED. (Statement of costs filed.)
Jul 9 2015Brief of petitioners EnerNOC, Inc., et al. (Private Petitioners) filed. VIDED.
Jul 9 2015Brief of petitioner Federal Energy Regulatory Commission filed.
Jul 9 2015Brief of respondent California Public Utilities Commission in support filed. VIDED.
Jul 9 2015Brief of respondents Joint States in support filed. VIDED.
Jul 9 2015Brief of respondent PJM Interconnection, LLC in support filed. VIDED.
Jul 10 2015Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from the Federal petitioner in No.14-840. VIDED.
Jul 16 2015Brief amici curiae of Grid Engineers and Experts in support of neither party filed. VIDED.
Jul 16 2015Brief amicus curiae of NRG Energy, Inc. in support of neither party filed. VIDED.
Jul 16 2015Brief amici curiae of Electricity Consumers and Demand Response Providers filed. VIDED.
Jul 16 2015Brief amicus curiae of Charles J. Cicchetti filed. VIDED.
Jul 16 2015Brief amicus curiae of Energy Law Scholars filed. VIDED.
Jul 16 2015Brief amicus curiae of Microgrid Resources Coalition filed. VIDED.
Jul 16 2015Brief amicus curiae of Stanford Economics Professor Charles D. Kolstad filed. VIDED.
Jul 16 2015Brief amici curiae of Illinois, et al. filed. VIDED.
Jul 16 2015Brief amicus curiae of The Guarini Center on Environmental, Energy and Land Use Law at New York University School of Law filed. VIDED.
Jul 16 2015Brief amici curiae of Conservation Law Foundation, et al. filed. VIDED.
Jul 29 2015SET FOR ARGUMENT on Wednesday, October 14, 2015. VIDED
Jul 31 2015CIRCULATED.
Aug 12 2015Record requested from U.S.C.A. District of Columbia Circuit.
Aug 26 2015Record 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 2015Brief of respondents Midwest Load-Serving Entities filed. VIDED. (Distributed)
Aug 31 2015Brief of respondents Electric Power Supply Association, et al. filed. VIDED. (Distributed)
Sep 1 2015Brief amici curiae of CES and Dr. Silkman filed. VIDED. (Distributed)
Sep 4 2015Record 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 2015Motion for divided argument filed by the Solicitor General. VIDED.
Sep 4 2015Brief amici curiae of North Carolina Utilities Commission, et al. filed. VIDED. (Distributed)
Sep 8 2015Brief amici curiae of Robert L. Borlick, et al. filed. VIDED. (Distributed)
Sep 8 2015Brief amici curiae of Indiana, et al. filed. VIDED. (Distributed)
Sep 8 2015Brief amicus curiae of Public Utility Law Project of New York filed. VIDED. (Distributed)
Sep 8 2015Brief amicus curiae of Southern Company Services, Inc. filed. VIDED. (Distributed)
Sep 8 2015Brief amici curiae of Nuclear Energy Institute and America's Natural Gas Alliance filed. VIDED. (Distributed)
Sep 8 2015Brief amicus curiae of Public Service Commission of the State of New York filed. VIDED. (Distributed)
Sep 24 2015Reply of petitioners EnerNOC, Inc., et al. (Private Petitioners) filed. VIDED. (Distributed)
Sep 25 2015Reply of respondent California Public Utilities Commission filed. VIDED. (Distributed)
Sep 28 2015Motion 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 2015Reply of respondents Joint States filed. VIDED. (Distributed)
Sep 30 2015Reply of petitioner Federal Energy Regulatory Commission filed. (Distributed)
Oct 13 2015Letter from the Solicitor General filed. (Distributed)
Oct 14 2015Argued. 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 2015Letter from Clerk of Court to counsel of record for the parties in No. 14-840 & No. 14-841.
Jan 25 2016Judgment 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
Feb 26 2016Judgment Issued