EPSA looking to maintain legal victories in 2015

Electric Power Supply Association (EPSA) President and CEO John Shelk said Jan. 21 that the trade group for competitive power producers will be looking to hold onto some key 2014 legal victories this year.

Shelk made his comments during the United States Energy Association’s (USEA) 11th annual State of the Energy Industry Forum at the National Press Club in Washington, D.C.

Government attorneys representing the Federal Energy Regulatory Commission (FERC) are asking the U.S. Supreme Court to review a two-to-one decision last year by the U.S. Court of Appeals for the District of Columbia Circuit. The ruling struck down FERC’s Order No. 745 that required that demand response be sold at locational marginal prices (LMP) in wholesale electric markets.

EPSA was the lead plaintiff in the case where the D.C. Circuit vacated FERC’s demand side management rule in its entirety.

It’s wrong for demand response to be compensated in the same manner as “steel in the ground” power generation, Shelk said. He noted that the trade group will be looking to preserve its legal victory this year.

Infrastructure that is effectively “no infrastructure at all” should not be compensation in the same way, Shelk said during the EPSA gathering.

In addition EPSA members have won separate federal appeals court victories in the past year over what EPSA deems “subsidized generation” programs in Maryland and New Jersey.

Last September a three-judge panel for the U.S. Court of Appeals for the Third Circuit upheld a lower court ruling that New Jersey regulators overstepped their bounds in their attempt to promote construction of in-state power plants. A similar ruling was issued against a Maryland generation program last year by another federal appeals court.

The court rulings had noted that both states at issue had moved away from a monopoly model.

Two natural gas power plants both being developed by affiliates of Competitive Power Ventures (CPV) in Maryland and New Jersey could be affected by the litigation.

In separate filings, Maryland and New Jersey have sought high court review of the lower court rulings on their generation programs, Shelk noted.

EPSA’s Shelk said it remains to be seen if any of the EPSA legal victories will be reviewed by the U.S. Supreme Court.

“Procedurally, the 3rd and 4th Circuit cases are much farther along as the briefing has occurred on whether the [Supreme] Court should or shouldn’t take the case,” Shelk said in a Jan. 22 email reply to an inquiry from GenerationHub.

The petitions for Supreme Court review have been filed in the two state generation cases, Shelk said. Responses in opposition are not due until Feb. 11, he added. The high court would subsequently decide when to hear the case, Shelk added.

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.