Not the DOE’s job The court spends a fair bit of time analyzing the history and structure of the regulation of the US electric grid. With very little in the way of exceptions, this leaves regulation of generating capacity to the states; the federal government only gets involved when it comes to interstate transmission lines. It notes that the same Federal Power Act that’s at issue here, for example, “expressly denies [Federal Energy Regulatory Commission] authority to regulate generation facilities directly. ” The court interprets this as an indication that Congress had intended for federal intervention at the level of generation facilities to be rare and only in cases where there was an immediate shortfall that could only be addressed through federal action. And it notes that this is exactly how the authority had been used throughout its history. “Indeterminate assertions of summer electricity shortfalls are not what Congress meant by ’emergency,’” the judges conclude
