DALRP sets retail rates insofar as it pays retail customers for reducing their retail purchases of electricity that are “subject to regulation by the States.” 16 U.S.C.§ 824(a). And the FPA prohibits FERC from regulating retail transactions.

Case 1:14-cv-10148-RGS Document 48 Filed 04/14/14 Page 41 of 60 33 which such electricity is sold. Thus, the FPA specifically provides that FERC will regulate wholesale sales of electricity: The provisions of this subchapter [which establish FERC’s jurisdiction] shall apply to the transmission of electric energy in interstate commerce and to the sale of electric energy at wholesale in interstate commerce . . . . 16 U.S.C. § 824(b)(1) (emphasis added). The FPA defines a “sale of electric energy at wholesale” as a “sale . . . for resale.”

3(2), which importation can only occur through transmission in interstate commerce, notwithstanding the United States exclusive jurisdiction over such transmission under the Federal Power Act. 16 U.S.C. §§824(a), 824(b)(1). In short, the Federal Power Act preempts the NGEA’s attempts to regulate transmission of electric energy and the sale of such energy at wholesale, both of which are fields reserved exclusively to the federal government.

In order to fill that regulatory gap, Congress enacted the Federal Power Act which provided that the Commission shall have jurisdiction over “the transmission of electric energy in interstate commerce” and “the sale of electric energy at wholesale in interstate commerce.” 16 U.S.C. § 824(b)(1). See New York v. FERC, 535 U.S. 1, 20-21 ( 2002) (“It is clear that the enactment of the FPA in 1935 closed the ‘Attleboro gap’ by authorizing federal regulation of interstate, wholesale sales of electricity – the precise subject matter beyond the jurisdiction of the States in Attleboro. . . .

48 FPA section 201(b)(1) limits FERC’s jurisdiction over “facilities” only to those for “such transmission or sale of electric energy.” 16 U.S.C. § 824(b)(1). Case 2:13-cv-02093-TLN-DAD Document 44 Filed 12/16/13 Page 44 of 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO DISMISS 28 in the physical delivery of electric energy in interstate commerce.

8 Such regulations are entirely within the States’ retained authority to determine whether new transmission and generation facilities should be built in the state. See Piedmont Envtl. Council v. FERC, 558 F.3d 304, 310 (4th Cir. 2009); 16 U.S.C. § 824(b)(1). 13 CASE 0:11-cv-03232-SRN-SER Document 15 Filed 03/01/12 Page 13 of 30 Fourth, it would be illogical for the legislature to regulate transmission lines under Section 216H.03 because transmission lines do not create carbon dioxide.

See (Complaint, ¶¶ 61-65). The rates actually paid by Plaintiffs, however, were approved by FERC and the PSC through extensive legal proceedings initiated by MPC under the Federal Power Act, 16 U.S.C. §§ 824 et seq., and the Public Utilities 21 Act, MISS. CODE ANN. §§ 77-1-1 et seq.

seq.) or that sells less than 4,000,000 megawatt hours of electricity per year, or any agency, authority or instrumentality of any one or more of the foregoing, or any corporation which is wholly owned, directly or indirectly, by any one or more of the foregoing, or any officer, agent or employee of any of the foregoing or any corporation which is wholly owned, directly or indirectly, by any one or more of the foregoing, or any officer, agent or employee of any of the foregoing acting as such in the course of his official duty, unless such provision makes specific reference thereto. 16 U.S.C. § 824(f). Thus Section 222 stands for nothing more than the unremarkable proposition that, to the extent some of the references listed in Section 201(f) are “entities” (such as the political subdivision or an electric cooperative), they are also included as an entity in Section 222.

at P 114, AR00064), the Commission held that Defendants “were engaging in the ‘sale of electric energy to any person for resale’ subject to section 201 of the FPA” (id. at P 115, AR00064-65 (quoting 16 U.S.C. §§ 824(b), (d))). Moreover, it found that because Defendants traded “to affect” index prices, they traded “in connection with” FERC-jurisdictional products under FPA Section 222, 16 U.S.C. § 824v, and the Anti-Manipulation Rule.

Subsection 201 (b) provided that no provisions of the subchapter of which it was a part - including the sweeping preemption provisions of§ 201 (a)- "shall ... deprive a State or State commission of its lawful authority now 36 exercised over the exportation of hydroelectric energy which is transmitted across a State line." Id (quoting 16 U.S.C. § 824(b)). The Court held that§ 20l(b) did "[n]othing ... to alter the limits of state power otherwise imposed by the Commerce Clause," but "simply save[ d] from pre-emption under Part II of the Federal Power Act such state authority as was otherwise lawful."