Whether the Federal Power Act preempts state subsidies that lack an express requirement to sell in FERC-approved auctions but that, by design, subsidize only generators that sell their entire output via such auctions

QUESTION PRESENTED The Federal Power Act (FPA), 16 U.S.C. §§ 791a et seq., vests exclusive federal jurisdiction over “[alll rates and charges ... received by any public utility for or in connection with the transmission or sale of electric energy” at wholesale in the Federal Energy Regulatory Commission (FERC). Id. § 824d(a). FERC is charged with ensuring that wholesale rates are “just and reasonable,” id., and has determined, as a matter of federal policy, that vibrant competition in the nation’s wholesale electricity markets is the best mechanism for ensuring just and reasonable rates. To achieve this goal, FERC has authorized and oversees competitive, regional market-based auctions for the purchase of wholesale electricity, and has deemed the free market prices set through those auctions just and reasonable. This Court held in Hughes v. Talen Energy Marketing, LLC, 136 S. Ct. 1288 (2016), that federal jurisdiction preempts state subsidies that have the effect of “guaranteeling]” that a wholesale generator will receive “a certain rate” other than the auction rate in connection with wholesale electricity sales. Id. at 1298-99. The question presented is whether the FPA preempts only state subsidies that explicitly require a wholesale generator to sell its output in FERCapproved auctions, or whether the FPA also preempts state subsidies that lack such an express requirement but that, by design, subsidize only generators that sell their entire output via such auctions, thereby achieving the same effect.