Maybe this will provide perspective - Scalia’s dissent starts on page 39.
http://www.supremecourt.gov/opinions/15pdf/14-840_k537.pdf
- He points out that the Federal Power Act prohibits FERC from regulating any sale of electricity other than wholesale...and points out that ‘wholesale’ is well defined in the act...and this doesn’t meet that definition. He even opines about a scenario in which, under this ruling, the states could have zero authority in all matters related to the sale of electricity.
Thank you for taking the time to dig that out.
They are not trying to regulate retail, but made the argument so convoluted, to could be included either way.
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Properly framing the inquiry matters not because I think there exists “some undefined category of . . . electricity sales” that is “non-retail [and] non-wholesale,”...
While the majority would find every sale of electric energy to be within FERC’s authority to regulate unless the transaction is demonstrably a retail sale, the statute actually excludes from FERC’s jurisdiction all sales of electric energy except those that are demonstrably sales at wholesale.
So what, exactly, is a “sale of electric energy at wholesale”? We need not guess, for the Act provides a definition: “a sale of electric energy to any person for resale.”
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From this point of view, it looks like FERC overstepped their bounds and SCOTUS allowed them to continue.