New England Power Co. v. New Hampshire

The New Hampshire Commission (NH Commission) (defendant) considered the authority of New England Power Company (NEP) (plaintiff) to export hydroelectric energy (hydropower) out of the state. NEP operated 21 hydroelectric generating units within the New Hampshire. The units were licensed by the Federal Energy Regulatory Commission (FERC) under the Federal Power Act (FPA). A New Hampshire statute from 1913, which predated the FPA, reserved the right to permit the transmission of hydropower out of the state to the state public-utilities commission. Starting in 1926, NEP periodically obtained approval from the NH Commission to transmit the electricity that it produced outside the state. In 1980, the NH Commission found that New Hampshire’s energy needs were increasing and that requiring NEP’s hydropower to be sold exclusively within the state would result in $25 million in savings to New Hampshire’s electricity customers. The NH Commission found that NEP’s hydropower was required for use within the state and that the public good was served by requiring that the hydropower be sold within the state. The NH Commission then prohibited NEP from exporting hydropower out of state. NEP appealed to the New Hampshire Supreme Court. The New Hampshire Supreme Court upheld the NH Commission’s order based on the nonpreemption clause of FPA § 201(b). The United States Supreme Court granted certiorari of three consolidated appeals regarding the authority of states to prohibit the exportation of hydropower to benefit its own residents.