Part 2 of 3 — The statutory divide and FERC’s PJM Co-Location Order

Part 1 described the surge in data center demand pushing very large electricity consumers onto the transmission grid, and the Department of Energy’s October 2025 direction ordering FERC to write rules for connecting them. The direction is an aggressive one. It tells FERC to assert authority over a kind of customer the Commission has historically left to the states, and it does so while a reliability crisis makes a quick federal answer attractive to almost everyone.

That ambition runs into a problem of power. FERC cannot regulate large-load interconnection at all unless the Federal Power Act authorizes it, and the Act draws a hard line between the parts of the electricity system FERC controls and the parts reserved to the states. Where large data centers fall on that line is the central question, and it is also where FERC, in its first concrete action, found a way to move without answering it.

The statutory framework: The federal-state jurisdictional divide

The DOE direction’s fate depends on three things: the statute’s text, the two Supreme Court decisions construing it, and the analogy at the heart of DOE’s claim.

Continue Reading The jurisdictional collision over large loads and data center interconnection

Part 1: The demand surge and the DOE’s Section 403 direction

Over the past six months, the Department of Energy (DOE) and the Federal Energy Regulatory Commission (FERC) have each taken major steps that challenge the 90-year-old boundary between federal and state authority over the electric grid. FERC regulates the interstate wholesale electricity market and the high-voltage transmission system that supports it; state public utility commissions regulate retail sales to end-use customers and the local distribution infrastructure that delivers power to homes and businesses.

Continue Reading The jurisdictional collision over large loads and data center interconnection

The Ohio Court of Appeals for the Seventh District recently affirmed the entry of default judgment on a Marketable Title Act claim in 4 Quarters, LLC v. Hunter, finding that the due diligence to locate heirs was sufficient and service by publication was appropriate. Continue Reading Ohio Court of Appeals determines due diligence to find heirs under Marketable Title Act and service by publication were sufficient to uphold default judgment

Relying on a 2018 decision from the United States Court of Appeals for the Third Circuit, a Pennsylvania district court reaffirmed that Religious Freedom Restoration Act (RFRA) claims against a Federal Energy Regulatory Commission (FERC)-regulated pipeline must be made initially to FERC.  Adorers of the Blood of Christ v. Transco. Gas Pipe Line Co. Continue Reading Religious Freedom Restoration Act claims against FERC-regulated pipeline must be presented initially to FERC, regardless of damages sought

In the Tennant v. Range Res. Appalachia decision issued on Sept. 21, 2021, Judge Hardy of the Western District of Pennsylvania determined that unless an oil and gas lease expressly shifted the burden to the defendant lessee, the plaintiff lessors bore the burden of proof on their claim of underpaid royalties. Continue Reading Plaintiff lessors bear burden of proof in royalty breach claim

In the camp of be careful how you plead and intend to prove a claim, those asserting an Ohio Dormant Mineral Act (ODMA) claim should pay careful attention to their pleading so as not to waive the attorney-client or attorney work product privileges. As the plaintiffs in Riccardi v. Jackson found out, waiver is a real possibility. Continue Reading Ohio Dormant Mineral Act claim may waive attorney-client privilege

Giving the Pennsylvania Supreme Court’s Kilmer decision broad construction, Judge William Stickman of the District Court for the Western District of Pennsylvania granted the lessees’ motion to dismiss and issued a decision affirming that royalty language containing the phrase “at the wellhead” permits the lessee to use the net-back method and deduct post-production expenses. Rejecting the lessor’s argument that Kilmer should be limited to cases involving Pennsylvania’s Guaranteed Minimum Royalty Act, the court concluded that “Kilmer cannot be read so narrowly as to ignore the fact that it interpreted ‘at the wellhead’ language in leases as providing for the use of the net-back method.”

Continue Reading “At the wellhead” royalty language authorizes net-back method in Pennsylvania

In a six-to-one decision, the Pennsylvania Supreme Court reversed the lower courts and held that a decision finding an oil and gas lease to be abandoned pursuant to the equitable doctrine of abandonment was improper where the lease provided remedies for the allegedly-wrongful conduct of the lessee.

Continue Reading Pennsylvania Supreme Court holds abandonment analysis improper where oil and gas lease provided remedies for conduct at issue