Chip Cannon Quoted in Law360, E&E News on DC Circuit Ruling in FERC Energy Storage Case

Law360, in its article “DC Circ. Gives Clean Energy A Green Light To Get On The Grid,” has quoted Akin Gump energy regulation, markets and enforcements practice head Chip Cannon on a ruling by the U.S. Court of Appeals for the D.C. Circuit that backs the Federal Energy Regulatory Commission’s (FERC) landmark energy storage rule.

In issuing its decision, Law360 says, the court ruled that FERC’s exclusive authority to determine who can participate in wholesale electricity markets trumps a state’s ability to make that same determination.

Cannon said any resulting clashes between such state regulations and the FERC order could resemble the litigation over state clean energy subsidies that followed the Supreme Court’s 2016 decision in Hughes v. Talen Energy Marketing. In that case, the justices said state programs that do not directly impact wholesale markets are not federally preempted.

“As is the case in Talen, there are lot of things states can do that are close to the [jurisdictional] line that will be gray areas,” Cannon said. “The courts will review those on a fact-specific basis.”

Speaking with E&E News for the article “D.C. Circuit ruling reignites FERC storage battle,” Cannon said, ultimately, the court’s decision is merely a reflection of increasing advances in technology.

“The market rules were drafted with generation and transmission in mind and not these types of storage resources,” Cannon said. “The whole reason behind the FERC order, as often happens, is the regulations and rules were lagging far behind where the industry has advanced technologically.”