Whether the preemptive effect of a federal agency's order is an issue for courts to decide and cannot be controlled by the agency's opinion, or lack of opinion, on such preemptive effect

After the Federal Energy Regulatory Commission (“FERC”) ordered Petitioner Entergy Arkansas, LLC to pay other utilities compensation for a misinterpretation of an ambiguous wholesale tariff provision, the Arkansas Public Service Commission (“APSC”) asked FERC to opine that its order would have no preemptive effect on APSC’s decision as to what portion of the payment Entergy Arkansas may pass through to its retail electricity customers. FERC declined to render any opinion on that issue. The U.S. Court of Appeals for the Eighth Circuit held that, because FERC had not affirmatively stated that its order has preemptive effect, it has no such effect. That ruling conflicts with numerous precedents of this Court and other circuits, warranting summary vacatur or alternatively this Court’s plenary review. The question presented is: Whether the preemptive effect of a federal agency’s order is an issue for courts to decide and cannot be controlled by the agency’s opinion, or lack of opinion, on such preemptive effect.