Notice & Comment

More on FERC and Demand Response

As Andy Hessick noted a few posts back, the Supreme Court recently granted cert in an important energy law case. FERC v. Electric Power Supply Association deals with FERC’s attempt to create a demand response program at the wholesale level. This is an issue that I’ve blogged about before; other scholars have written some great posts about the case here and here. For the moment, though, I only wanted to note that I’ve recently posted on SSRN a short essay, published recently by the Iowa Law Review Bulletin, written in reply to a nice article by Sharon Jacobs. Jacobs’ take is intriguing. She argues that in structuring its demand response program, FERC “bypassed” federalism by avoiding a direct confrontation with the states or Congress and instead using an area of relatively clear jurisdictional authority to work a de facto shift in the state/federal balance. Of course, the Supreme Court will tell us this fall or winter just how sound was FERC’s reasoning. Meanwhile, sit back, relax, and enjoy your moderately priced electricity.