Supreme Court could review FERC loss on demand response

The Obama administration has announced its intent to ask the Supreme Court to overturn a lower court ruling tossing out a key Federal Energy Regulatory Commission (FERC) order on demand response. 

The Solicitor General asked the court for an extension until Jan. 15 to file a petition for a writ of certiorari on the matter.  

Earlier this year, the U.S. Court of Appeals for the District of Columbia Circuit which earlier this year struck down FERC’s Order No. 745 that required that demand response be sold at locational marginal prices (LMP) in wholesale electric markets. 

FERC has also filed to request a corresponding extension of the stay of the D.C. Circuit’s mandate.

The Electric Power Supply Association (EPSA) was the lead plaintiff in the case where the D.C. Circuit vacated FERC’s demand side management rule “in its entirety.”

On Dec. 12 EPSA filed a legal response saying it opposed granting the government more time to file its petition with the Supreme Court.

“This Court previously granted the Commission a stay for the maximum 90-day period permitted under Rule 41(d) — until December 16 — to file a petition for certiorari with the U.S. Supreme Court,” EPSA said in a document filed with the D.C. Circuit. “Instead of meeting that deadline, the Commission now seeks to extend the stay by a further 30 days. But the Commission’s request does not comply with the rules,” EPSA said.

EPSA said FERC has not shown “good cause” why it should be entitled to an extension of the stay. “Nor has it identified any harm — much less irreparable harm — that would result from denying its request,” EPSA said. “In contrast, extending the stay will result in unnecessary harm to both petitioners and the nation’s power markets,” EPSA argued.

The legal response to the government was filed jointly by attorneys for EPSA and another petitioner, the Edison Electric Institute (EEI).  

Order No. 745 remaining in effect operates to depress clearance prices in wholesale markets from what they would be otherwise, which means that generators receive less revenue, according to the power generation groups.

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