Hughes v. Talen Energy Mktg., LLC, 578 U.S. ___ (2016)


Issues:

Concurrence (Thomas)

Contents

W. KEVIN HUGHES, CHAIRMAN, MARYLAND PUBLIC SERVICE COMMISSION, et?al., PETITIONERS

v.

TALEN ENERGY MARKETING, LLC, fka PPL ENERGYPLUS, LLC, et?al.

CPV MARYLAND, LLC, PETITIONER

v.

TALEN ENERGY MARKETING, LLC, fka PPL ENERGYPLUS, LLC, et?al.

on writs of certiorari to the united states court of appeals for the fourth circuit

[April 19, 2016]

Justice Thomas, concurring in part and concurring in the judgment.

The Court concludes that Maryland?s regulatory program invades the Federal Energy Regulatory Commission?s (FERC) exclusive jurisdiction over interstate wholesale sales of electric energy. Ante, at 12. I agree that the statutory text and framework compel that conclusion, and that Maryland?s program therefore cannot stand. Because the statute provides a sufficient basis for resolving these cases, I would not also rest today?s holding on principles of implied pre-emption. See, e.g., ante, at 11?12. For that reason, I join the Court?s opinion only to the extent that it rests on the text and structure of the Federal Power Act (FPA), 41Stat. 1063, as amended, 16 U.?S.?C. ?791a et?seq.

The FPA divides federal and state jurisdiction over the regulation of electricity sales. As relevant here, the FPA grants FERC the authority to regulate ?the sale of electric energy at wholesale in interstate commerce.? ?824(b)(1). That federal authority over interstate wholesale sales is exclusive. See, e.g., Nantahala Power & Light Co. v. Thornburg, 476 U.?S. 953, 966 (1986) (recognizing that Congress ?vested? in FERC ?exclusive jurisdiction? and ?plenary authority over interstate wholesale rates?); Mississippi Power & Light Co. v. Mississippi ex?rel. Moore, 487 U.?S. 354, 377 (1988) (Scalia, J., concurring in judgment) (?It is common ground that if FERC has jurisdiction over a subject, the States cannot have jurisdiction over the same subject?).

To resolve these cases, it is enough to conclude that Maryland?s program invades FERC?s exclusive jurisdiction. Maryland has partially displaced the FERC-endorsed market mechanism for determining wholesale capacity rates. Under Maryland?s program, CPV Maryland, LLC, is entitled to receive, for its wholesale sales into the capacity auction, something other than what FERC has decided that generators should receive. That is a regulation of wholesale sales: By ?fiddling with the effective .?.?. price? that CPV receives for its wholesale sales, Maryland has ?regulate[d]? wholesale sales ?no less than does direct ratesetting.? FERC v. Electric Power Supply Assn., 577 U.?S. ___, ___ (2016) (Scalia, J., dissenting) (slip op., at 6) (emphasis deleted) (addressing analogous situation involving retail sales). Maryland?s program therefore intrudes on the exclusive federal jurisdiction over wholesale electricity rates.

Although the Court applies the FPA?s framework in reaching that conclusion, see ante, at 12, it also relies on principles of implied pre-emption, see, e.g., ante, at 11?12. Because we can resolve these cases based on the statute alone, I would affirm based solely on the FPA. Accord-ingly, I concur in the judgment and I join the Court?s opinion to the extent that it holds that Maryland?s program invades FERC?s exclusive jurisdiction.