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In Response to: FPA Preemption in the 21st Century

In his response, Farmer expands upon Christiansen’s proposed preemption analysis in the electric power sector context, by examining the question whether the State’s purpose in enacting a law is relevant to determining whether that law is preempted by the FPA. The answer to this question is critical to discerning how Christiansen’s proposed preemption inquiry would work in practice. The Response argues that, despite loose language in Oneok v. Learjet, courts analyzing whether a state law is preempted should evaluate only the manner in which the law functions and the effects it has. The State’s purpose, as illuminated through a statutory declaration of intent or through legislative and regulatory history, is relevant to this inquiry only insofar as it sheds light on the question of how the law actually applies. Farmer’s Response urges the Supreme Court to use the opportunity presented by Hughes v. Talen Energy Marketing to untangle Oneok’s inadvertent (and incorrect) implication that the State’s motive controls the preemption inquiry.