Cite as: 535 U. S. 1 (2002)
Opinion of Thomas, J.
ply cannot be the case that the nature of the commercial transaction controls the scope of FERC's jurisdiction.
To be sure, I would not prejudge whether FERC must require that transmission used for bundled retail sales be subject to FERC's open access tariff. At a minimum, however, FERC should have determined whether regulating transmission used in connection with bundled retail sales was in fact "necessary to eliminate undue discrimination and protect electricity customers." Ibid. FERC's conclusory statement instills little confidence that it either made this determination or that it complied with the unambiguous dictates of the statute. While the Court essentially ignores the statute's mandatory prescription by approving of FERC's decision as a permissible "policy choice," the FPA simply does not give FERC discretion to base its decision not to remedy undue discrimination on a "policy choice."
The Court itself struggles to find support for FERC's conclusion that it was not "necessary" to regulate bundled retail transmission in order to remedy discrimination. First, the Court points to the fact that FERC's findings concerned electric utilities' use of their market power to " 'deny their wholesale customers access to competitively priced electric generation,' thereby 'deny[ing] consumers the substantial benefits of lower electricity prices.' " Ante, at 26 (quoting Brief for Petitioner in No. 00-809, pp. 12-13). Second, the Court notes that the title of Order No. 888 confirms FERC's focus because it references promoting wholesale competition. Ante, at 26. Finally, the Court relies on the fact that FERC has identified its goal as " 'facilitat[ing] competitive wholesale electric power markets.' " Ibid. (quoting Notice of Proposed Rulemaking, FERC Stats. & Regs., Proposed Regs., 1988-1999, ¶ 32,514, p. 33,049; 60 Fed. Reg. 17662).
I fail to understand how these statements support FERC's determination that it was not "necessary" to regulate bundled retail transmission. Utilities that bundle may use their market power to discriminate against those seeking access
35
Page: Index Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 NextLast modified: October 4, 2007