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Commissioner Norman C. Bay Statement
January 22, 2015
Docket No.s: ER13-187-006, ER13-187-007, ER13-187-008, ER13-187-009, ER13-186-004, ER13-89-003, ER13-84-002 and ER13-95-002
Item No. E-17 PDF
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MISO Order No. 1000 Rehearing


“In Order No. 1000, the Commission determined that “federal rights of first refusal in favor of incumbent transmission providers deprive customers of the benefits of competition in transmission development, and associated potential savings” and therefore ordered that they be removed from Commission-approved tariffs.1 The Commission noted, however, that Order No. 1000 was not “intended to limit, preempt, or otherwise affect state or local laws or regulations with respect to construction of transmission facilities.”2

“In a series of orders issued today, the Commission finds that Order No. 1000 does not compel the removal of tariff provisions that permit, in the transmission planning process, the recognition of state laws and regulations that grant a right of first refusal with respect to the construction of transmission facilities or the use of existing rights of way.3 While I concur in the result of these orders, I write separately to note that the Constitution limits the ability of states to erect barriers to interstate commerce.4 State laws that discriminate against interstate commerce – that protect or favor in-state enterprise at the expense of out-of-state competition – may run afoul of the dormant commerce clause.5 The Commission’s order today does not determine the constitutionality of any particular state right-of-first-refusal law. That determination, if it is made, lies with a different forum, whether state or federal court.”






                                               

    1 Order No. 1000, FERC Stats. & Regs. ¶ 31,323 at P 285.
    2 Id. at P 287.
    3See also Midwest Independent Transmission System Operator, Inc., 150 FERC ¶ 61,037 (2015); PJM Interconnection, L.L.C., 150 FERC ¶ 61,038 (2015).
    4South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984) (the Commerce Clause “has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce”).
    5See C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 394 (1994) (“State and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or their facilities.”); New England Power Co. v. New Hampshire, 455 U.S. 331, 339 (1982) (“The order of the New Hampshire Commission, prohibiting New England Power from selling its hydroelectric energy outside the State of New Hampshire, is precisely the sort of protectionist regulation that the Commerce Clause declares off-limits to the states.”);

    Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 352 (1977) (invalidating a state law that “offers the . . . [in-state] industry the very sort of protection against competing out-of-state products that the Commerce Clause was designed to prohibit”).