ELR Citation: 52 ELR 20136
No(s). 20-1453 (D.C. Cir. Dec 2, 2022)

The D.C. Circuit, 2-1, remanded to FERC a 2018 decision to give all transmission owners unilateral authority to fund power line upgrades in the Midwest. The Commission had initially only allowed direct transmission owners to decide between the generators paying for the line upgrades upfront, or paying for the upgrades themselves and charging the generators over time to recoup the costs, the latter of which enabled them to earn a profitable return on their investment. In 2015, FERC took away unilateral authority from direct transmission owners, determining it was unjust and unreasonable for them to enjoy such authority because it could allow certain owners to discriminate among generators. The court had overturned that decision, finding that because transmission line owners did not also own power generators, there was no risk of discrimination in favor of their own assets. In response, FERC revised its rule to give the same unilateral authority to both direct and indirect transmission owners. A group of generators operating in the Midwest then petitioned for review of that revision, arguing that many transmission owners there did own generation and that FERC had failed to adequately explain why the risk of discrimination was not a concern. The court concluded that FERC complied with its previous ruling, but did not adequately address the evidence that many transmission owners in the Midwest region also own generators. It remanded to FERC to adequately explain its decision.