Appeals court says it lacks jurisdiction in Midland, wind power dispute

The U.S. Court of Appeals for the District of Columbia Circuit has concluded that it lacks jurisdiction to review a Federal Energy Regulatory Commission (FERC) order directing Midland Power Cooperative, an Iowa electric utility, to “reconnect” to a wind generator within its territory.

According to its web site, Midland Power is a member-owned, not-for-profit electric cooperative that provides electric energy to customers in 17 counties in Iowa. Midland Power has a headquarters office in Jefferson, a branch office in Humboldt.

Midland and joint petitioner National Rural Electric Cooperative Association (NRECA) had sought review. “The first question, and as it proves the last, is whether we have jurisdiction. The answer is that we do not,” the court held in a decision issued Dec. 2.

The orders under review arise out of a prolonged dispute between Gregory and Beverly Swecker and Midland. The Sweckers own and operate on their Iowa farm a 65-kW wind generator that is classified as a qualifying facility (QF) under § 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA).

QFs comprise co-generators that produce both electricity and steam or some other form of useful energy and “small power production” facilities with a production capacity of no more than 80 MW and rely on various forms of renewable resources, the court said.

Section 210 and the regulatory scheme require Midland to be ready to purchase power from the Sweckers’ QF and also to supply them with retail power. The parties have long fought over the proper calculation of “avoided cost,” the court said.

The Sweckers, in response to Midland’s failure to pay what they view as the correct rate, stopped paying Midland for retail power. By the fall of 2011 they claimed that Midland owed them some $60,000 and acknowledged an accumulated unpaid bill from Midland of about $600.

Their failure to pay the retail bill led Midland, after giving notice and securing the approval of the Iowa Utilities Board, to begin procedures to disconnect the Sweckers.

The Sweckers filed notice of the disconnection with FERC and requested an expedited order of reconnection.

FERC would ultimately order Midland to reconnect Sweckers’ QF for purposes of purchasing and selling to the QF. FERC rejected the requests for rehearing filed by Midland, the Iowa Utilities Board, and NRECA.

The D.C. Court of Appeals found that it lacked jurisdiction to review the order and dismissed the Midland petition. Midland versus FERC is Case No. No. 13-1184. It had been argued Oct. 7.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.