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30 ELR 20175 | Environmental Law Reporter | copyright © 1999 | All rights reserved Southern California Edison Co. v. Federal Energy Regulatory CommissionNo. 98-1439 (195 F.3d 17) (D.C. Cir. November 2, 1999)The court granted a petition to review two Federal Energy Regulatory Commission (FERC) orders that allowed a California gas-to-energy plant to use natural gas to produce up to 25 percent of its energy. The court first holds that according to the Federal Power Act's (FPA's) plain language, statutory structure, and statutory context, FERC impermissibly construed FPA § 3(17)(A)'s definition of a small power production facility. The plain language of FPA §§ 3(17)(A) and (B) requires small production facilities to produce energy solely by using listed alternative fuels except that fossil fuels may be used to maintain or alleviate disruptions to power production. FERC's construction in the two orders at issue would allow a small production facility to generate electricity primarily through the use of fossil fuels. Further, the statutory structure and plain language of the FPA reveal that FPA § 3(17) does not delegate to FERC the authority to permit other secondary uses of fossil fuels besides those listed in FPA § 3(17)(B). Likewise, Congress enacted the small production facility provision to encourage the development of alternative sources of energy, and in so doing limited the use of fossil fuels. FERC has not shown that the fossil fuel uses permitted in its orders are of the kind or character that Congress expressly permitted. In addition, the court holds that FERC's orders contradicted a FERC regulation that limits uses of fossil fuels to those expressly permitted by the FPA. [A prior decision in this litigation is published at 27 ELR 21195.] The full text of this decision is available from ELR (10 pp., ELR Order No. L-119). Counsel for Petitioner Counsel for Respondent [OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE] 30 ELR 20175 | Environmental Law Reporter | copyright © 1999 | All rights reserved |