47 ELR 10964 ENVIRONMENTAL LAW REPORTER 11-2017
of our national energy puzzle.10 While there may be some
benets to diverse interpretations of federal law through-
out the country,11 certainty is a necessa ry commodity in
the eld of renewable power generation,12 and the risk of
individual states or circuits clashing with FERC in rega rd
to PURPA’s implementation presents serious problems for
renewable energy generation.
Second, on a more general level, cooperative federal-
ism schemes a re a well-established part of the repertoire
of federal policy construction options.13 For example,
cooperative federalism is particu larly common in our
major environmenta l laws, and the question of deference
is bubbling up there a s well. In 2016, the U.S. Cour t of
Appeals for the Ninth Circuit decided a case in which
Arizona argued that it deserved deference over t he U.S.
Environmental Protect ion Agency (EPA) when it came to
Arizona’s state implementation plan under the Clean Air
Act.14 Challenging the assumption t hat federal agencies
should always get deference in questions of interpretation
of federal law se ems to be in the air. Solving this defer-
ence riddle, therefore, will help provide a more coherent
framework for addres sing the inevitable problems of simi-
lar cooperative federalism schemes.15
is Article aims to solve that riddle, at least in regard to
PURPA, and aims to provide a data point for how to solve
that riddle with regard to other statutes. Specically, it will
borrow from the work of Edward Rubin and Ma lcolm
Feeley and argue that “federalism” is sometimes better
thought of as “decentralization.”16 A common assumption
is that federalism, and perhaps cooperative federalism espe-
cially, is intended to capitalize on the experimental benets
of using states as laboratories, and to a llow locally tailored
solutions.17 is assumption overlooks another primary
goal of decentralization: that it makes administration of
complex statutes easier.
10. See infra Part III.B.
11. See infra Part II.C.
Exelon Wind 1, LLC v. Nelson, 766 F.3d 380
, 404, 44 ELR 20202
(5th Cir. 2014) (Prado, J., dissenting) (noting that in order “to encourage
[renewable power] production, [FERC] regulations had to provide the
certainty that comes with having a long-term obligation”); see also infra Part
13. See infra Part II.A.; see also infra Part III.A. (discussing the Clean Air and
Clean Water Acts).
Arizona ex rel. Darwin v. Environmental Prot. Agency
, 815 F.3d 519
530 (9th Cir. 2016) (“Arizona (with the support of [Salt River Project
Agricultural Improvement and Power District]) contends, to the contrar y,
that Section 169A’s allocation of initial [best available retrot technology]
authority to the states requires that we defer to ‘the state’s expert judgments,
not to EPA’s.’”).
15. For instance, the Clean Power Plan involved a cooperative federalism
approach that, like PURPA, involves a federal agency promulgating
regulations that will then be implemented by states. See Federal Plan
Requirements for Greenhouse Gas Emissions From Electric Utility
Generating Units Constructed on or Before January 8, 2014, 80 Fed. Reg.
64966 (proposed Oct. 23, 2015).
16. See M M. F E R, F: P
I T C (2008); Edward L. Rubin & Malcolm
Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. R. 903
17. See Rubin & Fe eley, s upra not e 16 , at 917-2 6 (d iscus sing the
comm on ju stifi catio ns for feder alism , incl uding “citiz en cho ice”
and “exper iment ation” ).
If we assume that federalism is justied primarily by
state-by-state experimentation and locally tailored admin-
istration, then deference to the state agency in the face of
disagreement with the federal agency may ma ke sense. If,
however, we think of federalism as decentralization, and
decentralization simply as an administrative tool, then the
justication for deference to state agencies erodes. I arg ue
that PURPA is an example of “managerial decentraliza-
tion,” and therefore courts should not gra nt deference to
state agency interpretations of PURPA or FERC regula-
tions when FERC has a contrary interpretation.
Part I of this Article will explain the background of the
immediate issue by discussing the framework and history
of PURPA, as well as an overview of the dierent decisions
by recent courts and state agencies interpreting provisions
of PURPA §210. Part II will justify the conceptual frame-
work of thinking about dierent recipients of deference
based on dierent conceptions of federalism; discuss how
courts have dealt with deference in the context of coopera-
tive federalism; and discuss the confusion surrounding fed-
eralism a nd the concept of decentralization and present a
counterexample of “experimentalist decentralization.” Part
III will argue that PURPA §210 should be thought of as
a manageria l decentralization statute, and therefore defer-
ence should not be given to state agencies in interpretive
decisions that conict with FERC. Part IV concludes.
I. Power, PURPA, and Public Utility
Commissions: The Law at Issue
and Its Interpretation
is section will focus primarily on a 2014 decision by the
Fifth Circuit, Exelon Wind 1, LLC v. Nelson,18 in which a
federal court upheld a Texas state agency’s interpretation
of a FERC regulation in the face of a contrary opinion by
FERC, and will explore similar cases that involve litigation
under the same statute and disagreements between state
agencies and FERC. Before discussing these cases in detail,
the section will orient the reader with the basic history and
function of PUR PA and the provision of that law at issue
in these cases.
A. PURPA §210
e 1970s began with an oil shock that caused tremendous
turmoil in the United States.19 As the decade progressed,
gas lines, oil rationing, and c ardigan s weaters20 came and
went, but the realization that the United States had an
energy problem remained. e Richard Nixon, Gerald
Exelon Wind 1, LLC v. Nelson, 766 F.3d 380
, 44 ELR 20202 (5th Cir.
19. M J , P P : T E C
T A P 197 0s 49-85
(201 6) (disc ussing the Arab oil emba rgo and social a nd poli tical
turm oil th at res ulted) .
20. See Video: President Carter—Report to the Nation on Energy
(Miller Center of Public Aairs 1977), https://www.youtube.com/
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.