CFTC Regulation of RTO-Administered Capacity Markets: Obstacles or Lessons?
Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) operate, and the Federal Energy Regulatory Commission (FERC) oversees, wholesale electricity markets that facilitate sale and purchase of electricity. Some transactions were potentially subject to Commodity Futures Trading Commission (CFTC) jurisdiction after the Dodd-Frank Act, but the agency later exempted transactions compliant with FERC-authorized tariffs. Through the electricity capacity market, RTOs/ISOs aim to secure reliable electricity supply and meet future demand, but various aspects of this market’s design have been criticized for its long-term effectiveness and ensuing impact on grid reliability, prompting various reform proposals. This Article considers whether adopting or modeling CFTC regulation could assist or inform such reform. It concludes that FERC regulation is substantially similar to CFTC regulation in terms of market and compliance monitoring, but is appropriately tailored to physical electricity markets; and it is not clear whether adopting CFTC regulation would help or hurt efficient administration of these markets.