Licensee Tort Liability and Regulatory Overreaching

by Gary D. Bachman, Van Ness, Feldman, Sutcliffe and Curtis, United States,
John J. Buchovecky, Van Ness, Feldman, Sutcliffe and Curtis, United States,

Document Type: Proceeding Paper

Part of: Waterpower '89


Certain of the Federal Energy Regulatory Commission's (FERC) regulations and licensing requirements effectively preempt the states' authority to determine liability. This happens in three ways: (1) by FERC setting regulatory standards that are so stringent as to amount to strict liability; (2) by FERC unnecessarily expanding its sphere of regulation; and (3) by FERC implementing its regulations in a manner which directly conflicts with state tort law. Alleviating this potential for conflict requires greater recognition by FERC of the burden excessively high regulatory standards can place on licensees. In addition, it may be appropriate for states to consider a licensee's compliance with federal regulation to constitute a defense to liability in certain instances.

Subject Headings: Licensure and certification | Liability | Hydro power | Federal government | Risk management | Spheres | Laws | Power plants

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