Going ‘Rogue’: Supreme Court ‘Major Questions Doctrine’ – Preempting Presidential Power Over Power

Article by: Steven Ferrey

In this article, Professor of law Steven Ferrey examines the intense legal and constitutional conflicts surrounding the Federal Energy Regulatory Commission's (“FERC”) Order 1920. The controversial regional electric transmission planning rule has triggered an unprecedented wave of state challenges over the vertical separation of powers. Ferrey details how the rule crosses the Supreme Court’s "bright line" dividing federal rate-setting from traditional state land-use and permitting authority. He argues that the Supreme Court’s major questions doctrine, established in West Virginia v. EPA, and its recent overruling of Chevron deference in Loper Bright v. Raimondo leave FERC's sweeping policy agenda with virtually no legal defense. This article also examines FERC Commissioner and future Chairman Mark Christie's opposition regarding the agency's constitutional overreach, which has given legal ammunition to challengers of the Commission’s recent order. Ultimately, Ferrey presents three pragmatic "work arounds" to bypass infrastructure delays and meet clean energy goals.