Appeals Court sets March 20 to hear challenges to FERC Order 1000

Oral arguments over certain aspects of FERC Order 1000, 1000-A and 1000-B have been set for March 20 before a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, (Docket No.12-1232).

Judges Judith Rogers, Thomas Griffith and Cornelia Pillard will hear oral arguments beginning at 9:30 a.m., involving a docket of approximately 15 cases that have been combined under South Carolina Public Service Authority, et al. vs. FERC.

The complaints against FERC fall into six broad categories, with many of those categories including additional subcategories. Broadly, the complaints allege that:

  • FERC has overstepped its authority under the Federal Power Act (FPA) by requiring public utilities to participate in a regional transmission planning process
  • FERC’s decision to eliminate the right of first refusal (ROFR) is unreasonable
  • Order 1000’s reforms intrude on state authority
  • FERC’s determination that transmission planning must consider needs driven by public policy requirements is inappropriate
  • FERC’s cost allocation determinations are unreasonable
  • FERC’s decision to rely on the reciprocity condition to encourage non-public utility transmission providers to enroll in Order 1000’s regional planning process is unreasonable

Complainants include state public service commissions, ISOs and RTOs, the American Public Power Association, the National Rural Electric Cooperative, the Large Public Power Council, NARUC, major utility companies including Exelon (NYSE:EXC) and Southern Company (NYSE:SO), as well as numerous local utilities such as Jersey Central Power & Light and the Sacramento Municipal Utility District.

Complainants assert that FERC overstepped its FPA authority on several fronts, charging that Section 206 of the FPA does not give FERC the authority to require public utilities to participate in a regional transmission planning process, nor does it give FERC the authority to act based on a “theoretical threat” that transmission planned under Order 890 might be unjust or unreasonable because of factors Order 890 does not require. Order 890, for example, does not require coordinated regional planning or consideration of public policy drivers. 

FERC has countered that, more than simply permitting its action, section 206 obligates FERC to ensure that practices including transmission planning and cost allocation are just and reasonable and not unduly discriminatory.

In its response to the complaints against it, FERC asserted that several of the complainants’ arguments “are not ripe for review by the court because they concern matters that are being, or will be, addressed in compliance proceedings before the commission.” FERC asked that the court dismiss those claims, and deny the balance of the petitions for review based on the merits.

However, at least one complainant said there is precedent for action by the court, even though the issues are not fully ripe. The Coalition for Fair Transmission Policy and its co-complainants pointed out that Courts of Appeal have, in some instances, ordered petitions for review to proceed to resolution even where requests for reconsideration are pending.