FERC v. Mississippi

PETITIONER: FERC
RESPONDENT: Mississippi
LOCATION: White House

DOCKET NO.: 80-1749
DECIDED BY: Burger Court (1981-1986)
LOWER COURT:

CITATION: 456 US 742 (1982)
ARGUED: Jan 19, 1982
DECIDED: Jun 01, 1982

ADVOCATES:
Alex A. Alston, Jr. - on behalf of the Appellees
Rex E. Lee - on behalf of the Appellants

Facts of the case

Question

Media for FERC v. Mississippi

Audio Transcription for Oral Argument - January 19, 1982 in FERC v. Mississippi

Warren E. Burger:

We will hear arguments next in... 80-1749, Federal Energy Regulatory Commission against Mississippi.

Mr. Solicitor General, you may proceed when you're ready.

Rex E. Lee:

Mr. Chief Justice, and may it please the Court:

At issue in this case is the constitutionality of the Public Utility Regulatory Policies Act, one of five statutes enacted in 1978 as part of a comprehensive effort to deal with this nation's energy problems.

It would be helpful to consider the statute in two basic parts.

The first part consists of Titles I and III, which share three common statutorily-identified goals.

The first is to promote the conservation of energy supplied by utilities; second is to optimize the efficient use of facilities and resources by utilities; and the third is to ensure equitable rights to consumers.

Title I deals with electricity, and Title III with gas.

Title I requires state regulatory authorities and non-regulated electric utilities to consider the adoption of one set of standards, six in number, dealing with electric rates, and a second set of standards, five in number, dealing with terms and conditions of electric service.

The rate standards, all of them, and some of the electric service standards are directed toward two objectives.

The first is to cut down the amount of electric energy, and therefore imported oil, that is consumed in this country.

And the second objective is to shift electric demand away from peak periods, thereby diminishing the use of less efficient generating facilities and scarce fuels; notably, oil.

As to gas, Title III requires consideration of only two of the terms service standards.

Each of the standards, both Title I and Title III, is to be considered in a hearing after public notice, and a written statement of the reasons for declining to implement or adopt... in the event of a declamation to implement or adopt... any of the standards is to be made available to the public.

In addition, Titles I and III require that within one year after enactment of the statute and annually thereafter for ten years, state regulatory authorities and non-regulated utilities report the progress of their consideration of these standards to the Secretary of Energy who in turn is to submit a summary and analysis of the reports to Congress.

The other part of the statute is Title II, probably the most controversial.

Specifically, Section 210, whose objective is to encourage the development of cogeneration and small power production facilities.

Cogeneration is the combined product of both electrical energy and useful thermal energy such as heat or steam from a single process.

It has great potential as a source of energy conservation.

At one time it accounted for some 15 % of this nation's energy total, but with the advent of cheap fossil fuel power, that has diminished to 4 %.

A small power production facility is a facility having a capacity of no more than 80 megawatts and using something other fossil fuels, defined by the statute as biomass, waste, geothermal or renewable resources such as wind, water, solar energy, for the purpose of producing electric power.

Congress identified two impediments to the potential of cogeneration and small power production facilities as additional sources of domestic power with consequent lessening of dependence on foreign oil.

The first was its conclusion that subjecting cogeneration and small power production facilities to the usual state and federal regulatory burdens was unnecessary and would unduly discourage their development.

The more controversial aspect of the congressional determination was the second.

These two types of facilities must rely on traditional electric utilities, both as a source of backup power, and also as a market for their surplus power.

They do not sell generally to the public.

They use them only for their own purposes.

Evidence before Congress showed that since these facilities are potential competitors of public utilities, utilities were often less than cooperative in supplying either backup power or markets.

PURPA deals with each of these impediments.

Its response to the problem of surplus and backup power is the most hotly-contested of the Act's provisions.