Antitrust Law Daily Wrap Up, TOP STORY—Nevada Asks Supreme Court to Consider Preemption in Natural Gas Price Fixing Case, (Jan 4, 2013)
Organizations Mentioned:Enron Corp. | Reliant Energy
By Jeffrey May, J.D.
The State of Nevada has asked the U.S. Supreme Court to review a decision of the state’s highest court (128 Nev.Adv.Rep. 46), rejecting the state's antitrust suit against Reliant Energy and others for conspiring with the now-defunct Enron Corporation to drive up the price of natural gas. The Nevada Supreme Court ruled on September 27, 2012, that the state's single claim under the Nevada Unfair Trade Practices Act was preempted by federal law. The petition for certiorari in Nevada v. Reliant Energy, Inc., Dkt. 12-793, was filed on December 26, 2012.
The state contends that review is appropriate because the state supreme court decision conflicts with two federal appellate court decisions holding that federal natural gas legislation and regulation is not preemptive of state antitrust law. The state cites E. & J. Gallo Winery v. EnCana Corp. (9th Cir. 2007) 503 F3d 1027, 2007-2 Trade Cases ¶75,872; and State of Ill. ex rel. Burris v. Panhandle Eastern Pipeline Co. (7th Cir. 1991) 935 F.2d 1469, 1991-1 Trade Cases ¶69,455, as conflicting precedents.
The state also questions whether it was error for the Nevada Supreme Court to base its “field preemption” conclusion on the U.S. Supreme Court's 1986 decision in Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd. of Mississippi, 474 U.S. 409, without regard to subsequent limitations of that decision in the Court’s 1988 decision in Puerto Rico Department of Consumer Affairs v. Isla Petroleum Corp., 485 U.S. 495, and subsequent changes in the relevant statutory and regulatory framework enacted by Congress and the Federal Energy Regulatory Commission.
Catherine Cortez Masto, Nevada Attorney General, for petitioner.
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