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An Analysis of the Factors That Courts Use to Determine Whether a Regulation Is Voluntary; A Threshold Determination Courts Make Before Granting Judicial Review of an Order

March 2005

Citation: ELR 10208

Author: Jamie Tosches

In 1999, the Federal Energy Regulatory Commission (FERC) issued Order 2000.1 Order 2000 gave public utilities the option to voluntarily participate in a regional transmission organization (RTO). A public utility participating in an RTO must give the RTO the right to manage its transmission system.

Public utilities did not want to comply with Order 2000.4 Refusal to join an RTO, however, would potentially cost the public utilities economic benefits available to RTO participants giving. Caught between a rock and a hard place, the Public Utility District No. 1 (PUD No. 1) of Snohomish County, Washington, challenged FERC's authority to issue Order 2000 in Public Utility District No. 1 of Snohomish County v. Federal Energy Regulatory Commission. The court, however, did not reach the merits of the case holding that PUD No. 1 did not have standing to challenge a voluntary order.

This Article analyzes the Snohomish County decision to provide an understanding to determine whether a rule is involuntary, why it is important to make the determination, and why the decision gives administrative agencies more power to regulate. Part I of this Article provides background information on RTOs, transmission systems, and Order 2000, to facilitate an understanding of the Snohomish County ruling. Part II reviews the Snohomish County decision in detail. Finally, Part III analyzes the Snohomish County decision against selected Tenth Amendment rules of law, to identify factors that determine whether a regulation is involuntary. Finally, the Article explains why the Snohomish County decision gives the administrative agency the incentive to issue voluntary rules to insulate itself from judicial review and why this results in more power to the administrative agency.

Jamie Tosches currently studies law at the Suffolk University Law School in Boston, Massachusetts, and will finish her degree in May 2005. She received a B.S. in environmental sciences and natural resource studies from the University of Massachusetts at Amherst in 1999 and subsequently worked at the Rhode Island Department of Environmental Management. She wishes to thank Steven Ferrey for his encouragement and Sam Moppet for her assistance with this Article. The author may be reached by e-mail at jamie.tosches@suffolk.edu.

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