Third Circuit Affirms District Court Decision Invalidating New Jersey’s Long-Term Capacity Pilot Program

Sep 12, 2014

Reading Time : 1 min

Judge Julio M. Fuentes, writing for the Third Circuit panel, found that, by legislating the rates that LCAPP generators would receive for their capacity, New Jersey “entered into a field of regulation beyond its authority” because the FPA gives the Federal Energy Regulatory Commission (FERC) exclusive jurisdiction over interstate capacity markets and rates.  FERC regulates capacity prices in the PJM Interconnection, L.L.C. (“PJM”) region, of which New Jersey is a part, through PJM’s Reliability Pricing Model.  The LCAPP program, Judge Fuentes found, “attempts to regulate the same subject matter” and therefore cannot stand.  Because the court focused on field preemption with respect to FERC regulation of interstate rates, it did not reach arguments regarding whether the District Court correctly determined that LCAPP posed an obstacle to PJM’s implementation of its capacity markets and therefore is conflict preempted.

Importantly, Judge Fuentes recognized “FERC’s authority over interstate rates does not carry with it exclusive control over any and every force that influences interstate rates,” and that states, by statute and tradition, “maintain an [important] regulatory role in the nation’s electric energy markets.”  However, states like New Jersey will have to advance their energy policy goals, such as increasing electric generating capacity, by means other than capacity rate regulation that infringes on FERC’s exclusive jurisdiction.

Share This Insight

Previous Entries

Speaking Energy

January 15, 2025

We are pleased to share a recording of Akin’s recently presented webinar, “Drilling Down: What Oil & Gas Companies Can Expect from Federal Agencies During Trump’s Second Administration.”

...

Read More

Speaking Energy

January 9, 2025

On January 6, 2025, the Federal Energy Regulatory Commission (FERC) issued a Final Rule to amend its regulations governing the maximum civil monetary penalties assessable for violations of statutes, rules and orders within FERC’s jurisdiction. The Final Rule is a result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires each federal agency to issue an annual inflation adjustment by January 15 for each civil monetary penalty provided by law within the agency’s jurisdiction. The adjustments in the Final Rule represent an increase of approximately 2.6% for each covered maximum penalty. FERC’s adjusted maximum penalty amounts, which will apply at the time of assessment of a civil penalty regardless of the date on which the violation occurred, are set forth here and will become effective upon publication in the Federal Register.

...

Read More

Speaking Energy

January 9, 2025

Join projects & energy transition partners Ike Emehelu and Shariff Barakat as well as climate change partner Ken Markowitz at Infocast's Projects & Money, where Ike will moderate the "The State of Project Finance – View from the C-Suite" panel, and Shariff will moderate the "Capital Markets & Other Capital Sources for Project Finance & Investment" panel. Ken will moderate the “Carbon Markets Forecast for 2025” panel.

...

Read More

Speaking Energy

January 8, 2025

On December 16, 2024, the Federal Energy Regulatory Commission (FERC or the Commission) issued an Order to Show Cause and Notice of Proposed Penalty proposing to assess staggering civil penalties against American Efficient, LLC and its affiliates (collectively, American Efficient) in connection with an alleged scheme to manipulate the capacity markets operated by PJM Interconnection, L.L.C. (PJM) and the Midcontinent Independent System Operator, Inc. (MISO).1 The Order directs American Efficient to show cause as to why it should not be required to pay a civil penalty of $722 million and disgorge $253 million.2

...

Read More

Speaking Energy

December 5, 2024

On November 27, 2024, the Federal Energy Regulatory Commission issued Venture Global CP2 LNG, LLC, an order that sets aside, in part, the Commission’s prior authorization of the CP2 LNG Terminal and CP Express Pipeline Project (collectively, the CP2 Project) under sections 3 and 7 of the Natural Gas Act (NGA). 

...

Read More

Speaking Energy

December 5, 2024

On November 27, 2024, in Venture Global, CP2 LNG, LLC,1 the Federal Energy Regulatory Commission’s (FERC or Commission) explicitly overruled precedent set in Northern Natural Gas Co.,2 a 2021 decision in which FERC made an affirmative finding that an interstate natural gas pipeline project it was certificating under section 7 of the Natural Gas Act (NGA) would not make a “significant” contribution to global climate change. Northern Natural is the only FERC decision in which a so-called significance determination was made with respect to greenhouse gas emissions (GHG) arising from a FERC-regulated natural gas infrastructure project. In Venture Global, FERC rejected arguments that it needed to follow Northern Natural and assess the significance of GHG emissions in all NGA certificate proceedings to comply with the National Environmental Policy Act (NEPA). NEPA requires federal agencies, including FERC, that perform “major federal actions,” which include issuing NGA section 7 certificates, to prepare an environmental impact statement (EIS) if the action will “significantly affect[] the quality of the human environment.”3 FERC has been under pressure to fully explain why it has chosen not to apply Northern Natural’s significance analysis in subsequent cases, and that issue is currently before FERC on remand from the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) in Healthy Gulf et al. v. FERC, which reviewed FERC’s approval of a liquefied natural gas (LNG) terminal under NGA section 3.

...

Read More

Speaking Energy

December 4, 2024

On November 21, 2024, the Federal Energy Regulatory Commission (FERC or Commission) issued Order No. 1920-A1 addressing requests for rehearing and clarification of FERC’s landmark final rule on transmission planning and cost allocation issued in May 2024. While the Commission largely affirmed the final rule, the order grants rehearing of some of the more controversial aspects of Order No. 1920.

...

Read More

Speaking Energy

November 26, 2024

We are pleased to share a recording of Akin’s recently presented webinar, “Post-Election Outlook for the Energy Sector.”

...

Read More

© 2025 Akin Gump Strauss Hauer & Feld LLP. All rights reserved. Attorney advertising. This document is distributed for informational use only; it does not constitute legal advice and should not be used as such. Prior results do not guarantee a similar outcome. Akin is the practicing name of Akin Gump LLP, a New York limited liability partnership authorized and regulated by the Solicitors Regulation Authority under number 267321. A list of the partners is available for inspection at Eighth Floor, Ten Bishops Square, London E1 6EG. For more information about Akin Gump LLP, Akin Gump Strauss Hauer & Feld LLP and other associated entities under which the Akin Gump network operates worldwide, please see our Legal Notices page.