YOU CAN'T TAKE THEM LIKE THAT, IT'S AGAINST REGULATION

摘要

My comments are from the perspective of a practicing attorney who represents clients on the issues addressed in Prof. Joshua C. Macey's article. I want to start by acknowledging Professor Macey's work in laying out the history of the legal rules he argues should be "abandoned," but his "zombie" analogy is akin to a "slash and burn" approach when a surgical response would be more appropriate to address his concerns. As a practitioner who concentrates on federal energy regulation, I want to focus on the filed rate doctrine, which is one of the zombie energy laws Professor Macey identifies-a doctrine that is alive and kicking and still particularly relevant today. I understand Professor Macey's perspective as to how it may be applied within the judicial system but, in practice before the Federal Energy Regulatory Commission (FERC), it is a tool that certainly I and other practitioners utilize both for vertically integrated utilities, as well as the customers of those vertically integrated utilities. The renewable energy generators discussed in the article tend to be customers of these vertically integrated utilities as interconnection customers, and they are also transmission customers. When you consider that rates include not only the amount that will be charged, but also the terms and conditions of taking service, a tool like the filed rate doctrine can help a customer assert the rights to which it is entitled under a particular tariff and challenge a utility's deviation from providing the delineated services that have been accepted by FERC. It is an important and useful tool within the industry.