HMS Legal Blog

U.S. Supreme Court weighs in on line between FERC and States when it comes to demand response programs.


Yesterday the U.S. Supreme Court in a majority decision reversed the D.C. Circuit Court of Appeals’ decision and determined that a regional transmission organization’s (RTO) demand response program compensation comes under FERC’s jurisdiction. A demand response program is when, during high electricity demand, customers of electricity are paid not to use electricity. These demand response programs serve to lower electricity prices and increase the reliability of the electric grid. Center to the present issue is FERC’s issuance of Order No. 745 (Order 745). Order 745 requires market operators to pay the same price to demand response providers for conserving energy as to the generators for making energy. The D.C. Circuit Court held that FERC lacked authority to issue the order because Order 745 would directly regulate retail electricity rates. The D.C. Circuit Court also held that FERC’s demand response compensation scheme was arbitrary and capricious under the Administrative Procedure Act. The U.S. Supreme Court disagreed.

Continue reading
  2384 Hits

Attorney-Client Privilege: A Two Way Street

Bringing welcome clarity for regulated entities, especially those that rely heavily on in-house legal teams whose members interact on a day-to-day basis with business decision makers, the Pennsylvania Supreme Court this week reversed the Superior Court’s narrow “client to lawyer” limitation on the attorney-client privilege and held that the privilege operates “in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” Gillard v. AIG Insurance Co., _A.3d ___(Pa. 2011) (10 EAP 2010; filed February 23, 2011) (Saylor, J.).

Continue reading
  13800 Hits