Dive Brief:
- The D.C. Circuit Court of Appeals yesterday heard oral arguments in Public Citizen v. Federal Energy Regulatory Commission, where consumer advocates are making the case that federal regulators should have blocked implementation of rates set in a 2014 auction, Greenwire reports.
- Public Citizen challenged rates set in an ISO New England auction on February 2014, saying owners of the Brayton Power Station, the region's second largest power plant, withheld the its capacity in order to manipulate the market, Greenwire notes. But the Commission deadlocked in a 2-2 vote to review the complaint at a time when the agency was short one regulator, which led to the rates going into effect.
- FERC has argued the D.C. Circuit does not have jurisdiction over the matter, as the agency took no action and there is no order for judges to review.
Dive Insight:
Public Citizen challenged the New England auction results, arguing that the Brayton Point should not have been withheld from the auction, though at the time, its owners announced plans to retire the plant in 2017 due to low natural gas prices.
According to Public CItizen, that meant FERC shirked its duty to review rates, ultimately leading to the lawsuit. The group noted in a 2014 statement that the auction's results "raised prices $1.4 billion, leaving every household to pay $110 in higher utility bills."
In a December reply brief, Public Citizen argued that "at issue is not merely FERC’s failure to suspend the rates, but its definitive termination of petitioners’ section 205 [of the Federal Power Act] claim that the rates are unjust and unreasonable. Indeed, contrary to the litigation position taken by FERC’s lawyers and by the intervenors, FERC itself has treated the challenged action as preclusive of further challenges to the justness and reasonableness of the rates."
The commission has said the decision is not reviewable because it merely allowed rates to go into effect “by operation of law."
The arguments were heard by Judges Janice Rogers Brown, Sri Srinivasan and Robert Wilkins. Brown was appointed to the court by President George W. Bush, while Srinivasan and Wilkins were appointed by President Obama.
