FERC v. EPSA and Adjacent State Regulation of Customer Energy Resources
This Essay explores the implications of the U.S. Supreme Court's decision in FERC .v. EPSA for state regulation of customer energy resource initiatives, such as net metering policies for rooftop solar and energy storage programs. Unlike many past judicial decision that fixate on a jurisdictional "bright line," EPSA does not define a turf for state policymaking as beyond FERC's reach but instead recognizes how state policies operate adjacent to FERC's regulation of practices affecting wholesale rates. As the first Supreme Court case to explicitly recognize cooperative federalism programs in the regulation of modern energy markets under the FPA, ESPA is also a victory for state policy flexibility. At the same time, its endorsement of expansive FERC authority to address discriminatory practices will only help to ensure that state clean energy policies complement - and do not work at odds with - competitive, efficient and reliable energy markets.