Second Circuit – Public Utility Regulatory Policies Act: ALLCO v. Klee

U.S. Court of Appeals for the Second Circuit

Public Utility Regulatory Policies Act

Preemption – Standing

ALLCO v. Klee

15-20

Judges Katzmann, Hall and Livingston

Background: The plaintiff appealed from the dismissal of his complaint. The plaintiff commenced an action against Connecticut’s Department of Energy and Environmental Protection alleging that the Commissioner’s actions to award two power purchase agreements were preempted by the Federal Power Act and the Public Utility Regulatory Policies Act.

Ruling: The Second Circuit affirmed, but on alternative grounds. The court held that a plaintiff cannot bring a section 1983 or section 1988 claim to vindicate any rights conferred by the Public Utility Regulatory Policies Act because PURPA’s private right of action forecloses such a remedy. Also, the plaintiff failed to exhaust administrative remedies. Finally, the plaintiff lacked standing to bring a preemption action seeking solely to void the contracts awarded to the intervenors.

Thomas Melone of Allco Renewable Energy Limited for the plaintiff-appellant; Robert D. Snook, assistant attorney general, for the defendant-appellee Bradford S. Babbitt and James R. Nault of Robionson & Cole and Joseph A. Rosenthal for the intervenors-appellees