The New Jersey Board of Public Utilities on Nov. 21 filed an appeal at the U.S. Third Circuit Court of Appeals over an Oct. 11 lower court decision that struck down a board approval of a CPV Power Development gas-fired power project under a state generating resource development plan.
The lead plaintiff in this appeal is Robert Hanna, the president of the board. The Nov. 21 filing was merely a notice of appeal and so it lacks the legal arguments the board plans to make in this case.
The original plaintiffs in this case included Calpine Corp. and Exelon Generation Co. LLC, who successfully argued at the U.S. District Court level that the state law and the board’s approval of the CPV project under that law were illegal. The lower court ruled that the state’s Long Term Capacity Agreement Pilot Program Act (LCAPP) is preempted by the Federal Power Act and in violation of the Supremacy Clause of the U.S. Constitution.
The New Jersey BPU had in 2011 selected the gas-fired, 700-MW CPV Woodbridge Energy Center project of Competitive Power Ventures under the LCAPP program.