28
Opinion of Thomas, J.
See Part III, supra. It is obvious that a federal order claiming jurisdiction over all retail transmissions would have even greater implications for the States' regulation of retail sales—a state regulatory power recognized by the same statutory provision that authorizes FERC's transmission jurisdiction. See 16 U. S. C. § 824(b) (giving FERC jurisdiction over "transmission of electric energy," but recognizing state jurisdiction over "any . . . sale of electric energy" other than "sale of electric energy at wholesale"). But even if we assume, for present purposes, that Enron is correct in its claim that the FPA gives FERC the authority to regulate the transmission component of a bundled retail sale, we nevertheless conclude that the agency had discretion to decline to assert such jurisdiction in this proceeding in part because of the complicated nature of the jurisdictional issues. Like the Court of Appeals, we are satisfied that FERC's choice not to assert jurisdiction over bundled retail transmissions in a rulemaking proceeding focusing on the wholesale market "represents a statutorily permissible policy choice." 225 F. 3d, at 694-695.
Accordingly, the judgment of the Court of Appeals is affirmed.
It is so ordered.
Justice Thomas, with whom Justice Scalia and Justice Kennedy join, concurring in part and dissenting in part.
Today the Court finds that the Federal Energy Regulatory Commission (FERC or Commission) properly construed its statutory authority when it determined that: (1) it may require a utility that "unbundles" the cost of transmission from the cost of electric energy to transmit competitors' electricity over its lines on the same terms that the utility applies to its own energy transmissions; and (2) it need not impose that requirement on utilities that continue to offer only "bundled" retail sales. Under the Federal Power Act (FPA), 16
Page: Index Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: October 4, 2007