How the filed-rate policy wreaks havoc — and what courts can do about it.
Jim Rossi is Harry M. Walborsky Professor and Associate Dean for Research at Florida State University College of Law. He has served as an expert witness and consultant.
Like many venerable legal rules, the filed-rate doctrine is rarely questioned. Over the last century, it has served many important purposes. However, with deregulated wholesale electric power markets at the federal level and various degrees of deregulation across the states, both the doctrine's continued applicability and usefulness are suspect.
As recent examples in the industry suggest, presumptive application of the filed-rate doctrine by both firms and courts can cause affirmative harm for energy-market development and policy. For example, a recent U.S. District Court decision in Texas applied the filed-rate doctrine in an astonishingly broad manner (see sidebar “A Texas Sized Gap in Regulatory Enforcement,”), precluding anti-trust claims against energy suppliers in the deregulated Texas wholesale power market and leaving those harmed by market abuses without any legal or administrative remedy.
Examples such as this one illustrate a serious need for reassessment of the doctrine by federal courts in the energy context. Both courts and litigators have at their disposal ways of lowering the filed-tariff shield to allow more efficient energy markets to develop, better furthering the goals of energy policy.
In the deregulated electric power industry, the filed-rate doctrine continues to play an important role in precluding judicial enforcement of antitrust, contract, and tort laws.