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Transmission Preemption

Federal policy trumps state siting authority.

Fortnightly Magazine - November 2010

whether the FERC tariff dictates how and by whom [the] classification should be made.”).

20. AEP v. Texas , 473 F.3d 581, 582, 586 (5th Cir. 2006) (citations omitted).

21. Silkwood v. Kerr-McGee Corp ., 464 U.S. 238, 247 (1984); see also Grays Harbor WA v. Idacorp , 379 F.3d 641, 645 (9th Cir. 2004); Gade v. National Waste Management Ass’n, 505 U.S. 88, 103 (1992) (“A state law also is pre-empted if it interferes with the methods by which the federal statute was designed to reach th[at] goal.”).

22. Appalachian Power Co. v. Public Service Comm’n of West Virginia , 812 F.2d 898, 904-905 (4th Cir. 1987) (citation omitted).

23. See Pacific Gas & Elec. v. Energy Resources Commission , 461 U.S. 190 (1983) (under AEA, state may preclude construction of plant based on economic, but not nuclear, factors such as safety).

24. This is not to say that the totality of federal preemption in the area of reliability planning is determined by the rationale on which the state authority indicates it is making its determination; effect, as well as purpose, is relevant. Cf. English v. General Electric Co. , 496 U.S. 72, 84 (1990) (Although “part of the pre-empted field is defined by reference to the purpose of the state law in question, ... another part of the field is defined by the state law’s actual effect.”) (citing Pacific Gas , 461 U.S. at 212-13).

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