October 11, 2013

Jenner & Block recently won an important trial victory for firm clients Exelon, PSEG, Calpine and several other large utilities in a constitutional case of first impression that will have broad nationwide ramifications for the electric power industry.

At issue was a recently enacted New Jersey statute, signed by Governor Chris Christie, that sought to incentivize the construction of new power plants in the state by guaranteeing the price those plants would receive for wholesale sales of electricity. 

The firm filed a complaint in federal court, challenging the state program on preemption and commerce clause grounds.  In pretrial proceedings, the judge assigned to the case expressed concern for New Jersey’s ability to ensure adequate electric service for its citizens.  He denied the plaintiffs’ motion for summary judgment and the case proceeded to trial.

Over the course of six weeks, the firm team, as co-lead trial counsel, presented extensive evidence explaining the evolution of federal and state authority in the electric power industry.  On October 11, 2013, the judge issued a 67-page decision, ruling that the New Jersey program was preempted by federal law and unconstitutional under the Supremacy Clause of the Constitution.

Partner David W. DeBruin led the trial effort, assisted by Associates Matthew E. Price, Matthew S. McKenzie and Elizabeth C. Bullock.