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D.C. Circuit Issues Opinion on Jurisdiction Under Section 210 of PURPA (Public Utility Regulatory Policies Act)

On December 2, 2014, the D.C. Circuit issued its decision in Midland Power Cooperative and National Rural Electric Cooperative Association v. Federal Energy Regulatory CommissionNo. 13-1184, finding that it does not have jurisdiction to review Federal Energy Regulatory Commission (FERC) decisions under Section 210 of the Public Utility Regulatory Policies Act of 1978 (PURPA)

In the underlying FERC proceeding, the owners of a qualifying facility (QF) ceased paying their retail bill to Midland Power Cooperative, in response to a dispute between the QF and Midland over the proper avoided cost payment that the QF is entitled to under PURPA.  After the QF ceased paying its retail bill to Midland, Midland disconnected the QF from its system, which had the effect of cutting off retail supply to the QF and ending Midland’s purchases from the QF. The QF owners filed notice of the disconnection with FERC and requested reconnection.

FERC determined that Section 210 of PURPA did not permit Midland to cease purchases and sales to the QF, and ordered Midland to reconnect with the QF for the purposes of resuming its obligations to purchase and sell power to the QF. However, FERC did not definitively decide the question of whether a QF’s failure to pay its retail bill is a sufficient basis for disconnecting from the QF. FERC rejected all requests for rehearing of its decision.

Midland appealed the FERC’s decision to the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit held that it does not have jurisdiction to review this decision because it falls under Section 210 of PURPA, not Section 313 of the Federal Power Act (FPA). The D.C. Circuit reasoned that the Section 313 of the FPA expressly limits judicial review to proceedings under the FPA, and Section 210 of PURPA is not part of the FPA. PURPA, rather, leaves enforcement of Section 210 to the district court, subject to review in the relevant Court of Appeals. The D.C. Circuit acknowledged that it had reviewed FERC decisions under Section 210 of PURPA, but emphasized that none of those decisions mentioned the issue of jurisdiction, and therefore they did not have any precedential value to the instant proceeding.

Relevant Links:

D.C. Circuit Opinion:
http://www.cadc.uscourts.gov/internet/opinions.nsf/5028105418A0EA1385257DA200548D39/$file/13-1184-1524890.pdf

FERC’s Order:
http://www.ferc.gov/whats-new/comm-meet/2011/121511/E-24.pdf

FERC’s Order on Rehearing:
http://www.ferc.gov/whats-new/comm-meet/2013/032113/E-12.pdf

© 2022 ArentFox Schiff LLPNational Law Review, Volume IV, Number 342
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Energy industry stakeholders face unprecedented challenges in everyday operations as they seek to comply with changing market rules, evolving compliance obligations, and potential enforcement actions. Buying and selling energy in often difficult market conditions has become more complicated in the face of anticipated yet undefined climate change legislation and regulation. For the managers and general counsel of many energy companies, success in uncertain times has been the result of the counsel and representation provided by Schiff Hardin attorneys in the Energy and Public Utilities group...

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