The Electric Power Supply Association (EPSA) said March 19 that it has filed with the U.S. Supreme Court a brief in opposition to the two petitions seeking review of the District of Columbia Circuit’s decision last May invalidating FERC Order 745 on demand response compensation in wholesale energy markets.
One petition was filed by the U.S. Government and the other was filed by a coalition of demand response providers. EPSA and the Federal Energy Regulatory Commission (FERC) are the chief parties involved in the case (NOS. 14-840, 14-841).
The brief in opposition was filed on behalf of a coalition of electricity groups that include EPSA, the American Public Power Association (APPA), Edison Electric Institute (EEI), National Rural Electric Cooperative Association (NRECA), Old Dominion Electric Cooperative (ODEC), PJM Power Providers Group and PPL (NYSE:PPL).
The brief in opposition makes several key points in urging the Supreme Court to deny the petitions for certiorari, including why the D.C. Circuit correctly decided the case below, the lack of a split in the Circuits or variance from Supreme Court precedent, and why the case falls far short of rising to the level of a matter of national importance.
In addition, the groups argue in the brief that while the D.C. Circuit invalidated Order 745 on two alternative grounds – lack of FERC jurisdiction and an arbitrary and capricious compensation scheme – those seeking Supreme Court review have only asked for it on jurisdiction, which essentially amounts to a request for an advisory opinion, EPSA said.
Under Supreme Court rules, the Court’s Clerk does not distribute the briefs to the Justices until at least 14 days following the March 19 filing of the brief in opposition.
April 27 is probably the earliest date when the high court might publicly indicate if it will grant or deny the petition for review, a source said March 19. The U.S. Supreme Court typically hears only a small number of the cases that it is asked to consider.
EPSA and the supporting organizations say in the brief that the Federal Power Act draws a “bright line” distinction between state and federal jurisdiction over the regulation of sales of electric power.
The statute provides that wholesale sales—meaning sales of electric energy for resale—are subject to exclusive regulation by FERC and that retail sales, meaning sales of electric energy for consumption—are subject to exclusive regulation by the states, according to the EPSA brief.
The question in this case is whether FERC’s final demand response rule exceeds its jurisdiction and invades the states’ regulatory jurisdiction, according to EPSA.