NRG Power Marketing v. Maine Public Utilities Commission

Disclosure: Akin Gump represented a party to the settlement agreement in the proceedings before FERC, but was not involved in the proceedings in either the D.C. Circuit or the Supreme Court. An attorney from Howe & Russell also filed an amicus brief on behalf of the respondents in the case.

Holding: The Supreme Court has previously held that the Federal Energy Regulatory Commission (FERC) is required to presume that electricity prices set out in a freely negotiated wholesale-energy contract are just and reasonable the standard for lawful prices under Federal Power Act unless FERC concludes that the prices seriously harm the public interest. The Court held that this rule applies whether the challenge is brought by a party to the contract, or by a third-party (in this case, customers and state consumer protection agencies).

Judgment: Affirmed, 8-1, in an opinion by Justice Ruth Bader Ginsburg on January 13, 2010. Justice Stevens dissented.

Briefs and Documents

Merits Briefs

• Brief for Petitioner NRG Power Marketing, LLC, et al.
• Brief for the Federal Energy Regulatory Commission
• Brief for Respondent Maine Public Utilities Commission, et al.,
• Reply Brief for the Federal Energy Regulatory Commission
• Reply Brief for Petitioner NRG Power Parketing, LLC, et al.

Amicus Briefs

• Brief for Morgan Stanley Capital Group Inc., the International Swaps and Derivatives Association, Inc., and the Financial Institutions Energy Group in Support of Petitioner
• Brief for Colin C. Blaydon, Charles J. Cicchetti, Jeffrey A. Dubin, A.J. Goulding, William W. Hogan, Joseph P. Kalt, Paul R. Kleindorfer, Robert J. Michaels, Craig Pirrong, Vernon L. Smith, James L. Sweeney and Robert D. Willig in Support of Petitioner
• Brief for the Electric Power Supply Association, Colorado Independent Energy Association, the Electric Power Generation Association, the Independent Energy Producers Association, the Independent Petroleum Association of America, Independent Power Producers of New York, Interstate Natural Gas Association of America, the Natural Gas Supply Association, New England Power Generators Association, Inc., the Northeast Energy and Commerce Association, the Northwest & Intermountain Power Producers Coalition, PJM Power Providers Group, and the Western Power Trading Forum in Support of Petitioner
• Brief for the Public Utilities Commission of the State of California in Support of Respondent
• Brief for the American Public Power Association and the National Rural Electric Cooperative Association in Support of Respondent
• Brief for Public Citizen, Inc., and AARP in Support of Respondent

Certiorari-stage documents

• Opinion Below (D.C. Circuit)
• Petition for certiorari
• Brief in opposition of Maine Public Utilities et al.
• Brief in opposition of the Federal Energy Regulatory Commission
• Petitioners' reply
• Amicus brief of the Electric Power Supply Association, et al. (in support of petitioners)
• Amicus brief of the American Public Power Association and National Rural Electric Cooperative (in support of respondents)