Obama administration to appeal to Supreme Court on FERC Order 745 ruling

Dive Brief:

The Obama administration announced late Friday that it plans to appeal a federal court decision vacating FERC Order 745 to the Supreme Court, Platts reports.
The statement came via a letter to the Supreme Court written by U.S. Solicitor General Donald Verrilli asking for an extension on the Dec. 16 deadline for filing an appeal.
In May, the U.S. Court of Appeals for the District of Columbia Circuit invalidated FERC Order 745, which would allow demand response to to participate in day-ahead and real-time energy markets when it is capable of balancing supply and demand, and be paid the same locational marginal prices used to value traditional generation.

Dive Insight:

The Obama administration's announcement could be a crucial one for utilities and demand response providers alike. If it stands, GTM Research has estimated the D.C. Circuit Court's decision on FERC Order 745 would cut the growth rate of demand response almost in half, sparking calls from many providers for the White House to appeal to the Supreme Court.

The White House was tight-lipped about the appeal leading up to Friday's letter. On Wednesday, White House adviser John Podesta said the decision to go to the High Court would be the Solicitor General's alone, although Podesta did have strong criticism for the D.C. Circuit's ruling.

"We think this is a very significant and mistaken decision and we’re hopeful that in time we can see it reversed," he said.

In October, the D.C. Circuit issued a stay on its ruling, giving the Solicitor General until Dec. 16 to complete an appeal to the Supreme Court. Verrilli's letter indicates that his office will appeal the ruling, but that it needs an extension to Jan. 15 to actually prepare and print the petition.

New Mexico Senator Martin Heinrich has introduced legislation that could solve the legal battles on FERC Order 745. Podesta said last week that the White House has not yet reviewed the legislation, but that it would be open to Congressional solutions if it can't get its desired decision from the courts.

Platts reports FERC Chair Cheryl LaFleur was pleased with the decision to appeal. "I believe the commission's ability to regulate demand response in wholesale electric markets is of vital importance," she said in a statement.