Notice & Comment

D.C. Circuit Review – Reviewed: One more holdover decision

We’re still in the quiet period of the term, with just one opinion issued this past week. It’s another holdover from last term (argued over a year ago). I believe there has been only one published opinion released so far for cases actually argued this term – a decision in an NLRB case about bargaining to impasse.

The holdover decision was issued in American Municipal Power v. FERC, No. 20-1449 (D.C. Cir. Nov. 17, 2023). The vote was unanimous to uphold FERC’s decision, with Judge Childs writing (joined by Judge Rao and Senior Judge Tatel). In broad brush strokes, the case involves who has responsibility for planning how and when to repair or replace power transmission facilities that are nearing their end of life—transmission facility owners or the regional transmission organization (RTO) (which manages the grid but does not own the transmission facilities). The regional transmission organization at issue is PJM, which is the largest RTO and generally covers the mid-Atlantic area and parts of the Midwest. FERC approved a filing that provided for certain stakeholder input in the process by which transmission owners would plan such “end of life” projects (as distinct from, say, expansions of the grid, which would be planned at the regional level). Stakeholders, who believed more of the planning should be done at the regional level, submitted their own proposal (which was rejected).

Both sides sought review of FERC’s order. Transmission owners did so because FERC’s reasoning, in their view, suggested their agreements with the RTO were ambiguous about whether they retained sole authority over these “end of life” projects. (Needless to say, their position is that the agreements unambiguously leave the authority with them.) The D.C. Circuit dismissed their petition for lack of standing, holding that this sort of regulatory “uncertainty” was not a sufficient injury.

The stakeholders objected on many different grounds, in several petitions that were consolidated. The D.C. Circuit denied their claims on the merits, in what appears to a non-FERC-expert’s eye to be a fairly straightforward application of arbitrary-and-capriciousness principles.

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