ELR Citation: 53 ELR 20109
No(s). 22-1018 (D.C. Cir. Jul 14, 2023)

The D.C. Circuit granted in part and denied in part a petition to review FERC orders that permitted the creation of a new energy transmission service across several states in the Southeast. The first, the Deadlock Order, was adopted when the commissioners deadlocked 2-2 on whether the overall proposal was "just and reasonable" and otherwise met the requirements of the Federal Power Act and related regulations. A later order, the Tariff Order, was adopted by majority vote and accepted tariff revisions by transmission service providers within the new market to enable the new transmission service. Environmental and trade groups challenged the orders throughout initial proceedings and on rehearing at the Commission. They then petitioned the court for review, arguing FERC failed to adequately respond to their concerns, misapplied or ignored its own precedent, and gave unreasoned responses to their comments. The court found the Commission erred in finding the petition for rehearing of the Deadlock Order untimely and failed to explain how the requested revisions in the Tariff Order were "consistent with or superior to the terms of the pro forma tariff" in light of the groups' objections; but that the groups failed to demonstrate that FERC "unjustifiably assumed" the requested revisions were just and reasonable or "altered the burden of proof" in determining that the new market's participation requirements were not unduly discriminatory. It vacated the Tariff Order and the Commission's orders finding the groups' rehearing requests of the Deadlock Order untimely, and remanded the petition to FERC—as it relates to review of the Deadlock Order and associated orders accepting amendments to the proposal for the new energy market—without vacatur of related orders to address the timely petition for rehearing.