II

105TH CONGRESS

2D SESSION S. 2187

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 18, 1998

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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S 2187 IS

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 any supplier is essential to a dynamic, fully inte6 grated and competitive national market for electric

7 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 any supplier

13 constitute an unwarranted and unacceptable dis14 crimination against and burden on interstate com15 merce;

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 any supplier; and

23 (4) the electric energy transmission and local

24 distribution facilities of the Nation’s federally

25 owned, investor-owned, and self-regulated utilities

26 are essential facilities for the conduct of a competi-
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S 2187 IS

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 any supplier.

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 any supplier.

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

14 POWER ACT.

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

16 824) is amended by adding at the end the following:

17 ‘‘(h) Notwithstanding any other provision of this sec18 tion, nothing in this part or any other Federal law shall

19 be construed to authorize a State to—

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

21 any electric utility an exclusive right to sell electric

22 energy; or

23 ‘‘(2) otherwise unduly discriminate against any

24 consumer who seeks to purchase electric energy in

25 interstate commerce from any supplier.’’
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S 2187 IS

1 SEC. 5. ACCESS TO TRANSMISSION AND LOCAL DISTRIBU2 TION FACILITIES.

3 No supplier of electric energy, who would otherwise

4 have a right of access to a transmission or local distribu5 tion facility because such facility is an essential facility

6 for the conduct of interstate commerce in electric energy,

7 shall be denied access to such facility or precluded from

8 engaging in the retail sale of electric energy on the

9 grounds that such denial or preclusion is authorized or

10 required by State action establishing, maintaining, or en11 forcing an exclusive right to sell, transmit, or locally dis12 tribute electric energy.

13 SEC. 6. STATE AUTHORITY TO IMPOSE RECIPROCITY RE14 QUIREMENTS.

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

16 is amended by adding at the end the following:

17 ‘‘SEC. 215. STATE AUTHORITY TO IMPOSE RECIPROCITY RE18 QUIREMENTS.

19 ‘‘A State or State commission may prohibit an elec20 tric utility from selling electric energy to an ultimate con21 sumer in such State if such electric utility or any of its

22 affiliates owns or controls transmission or local distribu23 tion facilities and is not itself providing unbundled local

24 distribution service in a State in which such electric utility

25 owns or operates a facility used for the generation of elec26 tric energy.’’.
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1 SEC. 7. SAVINGS CLAUSE.

2 Nothing in this Act shall be construed to—

3 (1) authorize the Federal Energy Regulatory

4 Commission to regulate retail sales or local distribu5 tion of electric energy or otherwise expand the juris6 diction of the Commission, or

7 (2) limit the authority of a State to regulate re8 tail sales and local distribution of electric energy in

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

10 3 of the Constitution of the United States.

11 SEC. 8. EFFECTIVE DATES.

12 Section 5 and the amendment made by section 4 of

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

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

15 of enactment of this Act.

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