Last week, the D.C. Circuit issued two administrative-law opinions.

In Affirmed Energy, LLC v. FERC, the court addressed the Federal Energy Regulatory Commission’s approval of changes to regional electricity-market rules. The case involved PJM Interconnection LLC, which manages the electrical grid in parts of thirteen states and the District of Columbia. Each year, PJM holds a capacity auction through which it purchases commitments to supply electricity in future years. In 2009, with FERC’s approval, PJM allowed providers of energy efficiency resources—projects that reduce electricity consumption—to bid in these auctions. If PJM accepted a providers’ bid, the provider could bid the same project in up to three additional auctions. In 2024, however, PJM proposed to end eligibility for these efficiency resources beginning in 2025, and FERC accepted that proposal. Affirmed Energy, a provider whose project had been selected at a prior auction and who therefore expected to bid in future auctions, petitioned for review.

In an opinion by Judge Henderson, the court denied the petition. First, the court rejected Affirmed’s argument that FERC had violated the filed-rate doctrine by retroactively depriving it of the right to bid in future auctions. The court held that FERC’s order wasn’t retroactive because it affected only future auctions. Although Affirmed reasonably expected to participate in those auctions, that expectation didn’t transform FERC’s forward-looking order into retroactive ratemaking. Second, the court rejected Affirmed’s arguments that FERC acted arbitrarily and capriciously. The court concluded that FERC critically evaluated PJM’s justification for barring energy efficiency resources from future auctions and adequately considered the decision’s effects on reliance interests and investment incentives. Judge Pan dissented in part, arguing that FERC’s order retroactively altered Affirmed’s eligibility to bid in future auctions.

In EB5 Holdings Inc. v. Edlow, the court addressed reforms to the EB-5 visa program. For decades, the EB-5 program provided visas to immigrants who invested in a U.S. business that created at least 10 full-time jobs. Immigrants could invest directly in a single business, or they could pool their money through a “regional center”—a governmentally approved organization that promoted economic development in a single area. After concerns about fraud and abuse, Congress reauthorized and reformed the program in 2022, requiring “each regional center designated under” the new statutory provision to pay an annual fee. When the government sought to collect the fee from regional centers that were created before 2022, EB5 Holdings—which owned two such centers—sued, arguing that the statute did not cover centers designated before the reforms.

In an opinion by Judge Henderson, the court held that regional centers created before 2022 were required to pay the fee. The court held that the statutory phrase “regional center designated under” the new program refers to entities currently authorized to participate, not to the date of their original designation. Because all active regional centers operate under the reauthorized program, both pre- and post-2022 centers must pay the fee. The court also rejected the argument that applying the fee to pre-2022 centers was impermissibly retroactive, reasoning that the fee is a prospective condition for continued participation rather than a penalty for past conduct.