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Public Citizen v. Federal Energy Regulatory Commission

ELR Citation: 46 ELR 20170
Nos. 14-1244, (D.C. Cir., 10/25/2016)

The D.C. Circuit dismissed Connecticut's and a citizen group's lawsuit against FERC in which they alleged that the agency failed to ensure that the 2014 wholesale electricity capacity rates in New England were just and reasonable. Due to insufficient competition, the 2014 "forward-capacity market" auction defaulted to administrative pricing rules, which resulted in regional capacity price increases from approximately $1.2 billion to approximately $3 billion over one year. FERC, which comprised four Commissioners at that time, had deadlocked 2-2 about whether to approve the rates or set them for hearing. FERC then issued a notice that the rates had become effective by operation of law pursuant to Federal Power Act (FPA) §205. Plaintiffs alleged that the rates resulted from the unilateral exercise of market power and that FERC should not have approved them. But the court lacks jurisdiction over the case. FERC did not engage in collective, institutional action when it deadlocked on the rates. Consequently, the notices describing the effects of that deadlock are not reviewable orders under the FPA.