FERC v. EPSA: Functionalism and the Electricity Industry of the Future

Abstract

This Essay addresses the Supreme Court’s recent decision in Federal Energy Regulatory Commission v. Electric Power Supply Association. The decision has received a level of popular attention that is almost unprecedented for a case involving electricity regulation. Nevertheless, one of the decision’s most jurisprudentially significant aspects has gone largely unnoticed. In ruling for FERC, the Court adopted a deeply functionalist approach to the Federal Power Act’s division of jurisdiction between state and federal regulators. In so doing, the Court cited with approval a number of pragmatic steps that FERC took to manage the jurisdictional challenges posed by new technologies for generating and consuming electricity. This is a laudable development. As the Essay explains, this functionalist approach will empower FERC to adapt the FPA to meet these new challenges while nevertheless remaining consistent with the FPA’s overarching purpose.