II

106TH CONGRESS

1ST SESSION S. 1284

To amend the Federal Power Act to ensure that no State may establish,

maintain, or enforce on behalf of any electric utility an exclusive right

to sell electric energy or otherwise unduly discriminate against any consumer who seeks to purchase electric energy in interstate commerce

from any supplier.

IN THE SENATE OF THE UNITED STATES

JUNE 24, 1999

Mr. NICKLES introduced the following bill; which was read twice and referred

to the Committee on Energy and Natural Resources

A BILL

To amend the Federal Power Act to ensure that no State

may establish, maintain, or enforce on behalf of any

electric utility an exclusive right to sell electric energy

or otherwise unduly discriminate against any consumer

who seeks to purchase electric energy in interstate commerce from any supplier.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Electric Consumer

5 Choice Act’’.
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1 SEC. 2. FINDINGS.

2 The Congress finds that—

3 (1) the opportunity for all consumers to pur4 chase electric energy in interstate commerce from

5 the supplier of choice is essential to a dynamic, fully

6 integrated and competitive national market for elec7 tric energy;

8 (2) the establishment, maintenance or enforce9 ment of exclusive rights to sell electric energy and

10 other State action which unduly discriminates

11 against any consumer who seeks to purchase electric

12 energy in interstate commerce from the supplier of

13 its choice constitutes an unwarranted and unaccept14 able discrimination against and burden on interstate

15 commerce;

16 (3) in today’s technologically driven market17 place there is no justification for the discrimination

18 against and burden imposed on interstate commerce

19 by exclusive rights to sell electric energy or other

20 State action which unduly discriminates against any

21 consumer who seeks to purchase electric energy in

22 interstate commerce from the supplier of its choice;

23 and

24 (4) the electric energy transmission and local

25 distribution facilities of all of the Nation’s utilities

26 are essential facilities for the conduct of a competi-
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1 tive interstate retail market in electric energy in

2 which all consumers have the opportunity to pur3 chase electric energy in interstate commerce from

4 the supplier of their choice.

5 SEC. 3. DECLARATION OF PURPOSE.

6 The purpose of this act is to ensure that nothing in

7 the Federal Power Act or any other Federal law exempts

8 or protects from Article I, Section 8, Clause 3 of the Con9 stitution of the United States exclusive rights to sell elec10 tric energy or any other State actions which unduly dis11 criminate against any consumer who seeks to purchase

12 electric energy in interstate commerce from the supplier

13 of its choice.

14 SEC. 4. SCOPE OF STATE AUTHORITY UNDER THE FEDERAL

15 POWER ACT.

16 Section 201 of the Federal Power Act (16 U.S.C.

17 824) is amended by adding at the end the following—

18 ‘‘(h) Notwithstanding any other provision of this sec19 tion, nothing in this Part or any other federal law shall

20 be construed to authorize a State to—

21 ‘‘(1) establish, maintain, or enforce on behalf of

22 any electric utility an exclusive right to sell electric

23 energy; or,
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1 ‘‘(2) otherwise unduly discriminate against any

2 consumer who seeks to purchase electric energy in

3 interstate commerce from any supplier.’’.

4 SEC. 5. ACCESS TO TRANSMISSION AND LOCAL DISTRIBU5 TION FACILITIES.

6 No supplier of electric energy, who would otherwise

7 have a right of access to a transmission or local distribu8 tion facility because such facility is an essential facility

9 for the conduct of interstate commerce in electric energy,

10 shall be denied access to such facility or precluded from

11 engaging in the retail sale of electric energy on the

12 grounds that such denial or preclusion is authorized or

13 required by State action establishing, maintaining, or en14 forcing an exclusive right to sell, transmit, or locally dis15 tribute electric energy.

16 SEC. 6. STATE AUTHORITY TO IMPOSE RECIPROCITY RE17 QUIREMENTS.

18 Part II of the Federal Power Act (16 U.S.C. 824)

19 is amended by adding at the end the following:

20 ‘‘SEC. 215. STATE AUTHORITY TO IMPOSE RECIPROCITY RE21 QUIREMENTS.

22 ‘‘A State or state commission may prohibit an electric

23 utility from selling electric energy to an ultimate consumer

24 in such State if such electric utility or any of its affiliates

25 owns or controls transmission or local distribution facili-
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1 ties and is not itself providing unbundled local distribution

2 service in a State in which such electric utility owns or

3 operates a facility used for the generation of electric en4 ergy.’’.

5 SEC. 7. REPEAL OF THE PUBLIC UTILITY HOLDING COM6 PANY ACT OF 1935.

7 The Public Utility Holding Company Act of 1935 (15

8 U.S.C. 79a et seq.) is repealed, effective on and after the

9 enactment of this Act.

10 SEC. 8. PROSPECTIVE REPEAL OF SECTION 210 OF THE

11 PUBLIC UTILITY REGULATORY POLICIES ACT

12 OF 1978.

13 (a) NEW CONTRACTS.—No electric utility shall be re14 quired to enter into a new contract or obligation to pur15 chase or to sell electricity or capacity under section 210

16 of the Public Utility Regulatory Policies Act of 1978 (16

17 U.S.C. 824a–3).

18 (b) EXISTING RIGHTS AND REMEDIES.—Nothing in

19 this section affects the rights or remedies of any party

20 with respect to the purchase or sale of electricity or capac21 ity from or to a facility determined to be a qualifying small

22 power production facility or a qualifying cogeneration fa23 cility under section 210 of the Public Utility Regulatory

24 Policies Act of 1978 (16 U.S.C. 824a–3) under any con25 tract or obligation to purchase or to sell electricity or ca-
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1 pacity in effect on the date of enactment of this Act, in2 cluding the right to recover the costs of purchasing the

3 electricity or capacity.

4 SEC. 9. SAVINGS CLAUSE.

5 Nothing in this Act shall be construed to—

6 (1) authorize the Federal Energy Regulatory

7 Commission to regulate retail sales or local distribu8 tion of electric energy or otherwise expand the juris9 diction of the Commission, or,

10 (2) limit the authority of a State to regulate re11 tail sales and local distribution of electric energy in

12 a manner consistent with article I, section 8, clause

13 3 of the Constitution of the United States.

14 SEC. 10. EFFECTIVE DATES.

15 Section 5 and the amendment made by section 4 of

16 this Act take effect on January 1, 2002. The amendment

17 made by section 6 of this Act takes effect on the date

18 of enactment of this Act.

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