On September 29, 2014, the Large Public Power Council (“LPPC”) filed a petition requesting for en banc review of the United States Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) determination to uphold FERC’s Order No. 1000.  The petition exclusively addresses the D.C. Circuit panel’s decision affirming FERC’s approach to cost allocation for new transmission facilities. LPPC is concerned that the decision “endorses FERC’s unprecedented determination that it has the authority to provide transmission developers . . . with a mechanism to secure funding for their projects from entities (Petitioner utilities) with whom they have no business relationship and to whom they do not provide service.”

On July 21, 2011, FERC issued Order No. 1000, and subsequently issued Order Nos. 1000-A and 1000-B.  FERC contends that Order No. 1000 and its progeny build on the reforms of Order No. 890, and correct remaining deficiencies with respect to transmission planning processes and cost allocation methods.  Among other things, Order No. 1000 requires that:

  • Each transmission owning and operating public utility participate in regional transmission planning that satisfies specific planning principles and results in a regional transmission plan;
  • Each planning process have a method to allocate the costs of new transmission facilities among beneficiaries in the regional transmission plan while satisfying six regional cost allocation principles; and
  • Each transmission provider remove from its jurisdictional tariffs and agreements any provisions that establish a federal right of first refusal to develop transmission facilities in a regional transmission plan.

In response to Order No. 1000, many stakeholders petitioned the D.C. Circuit to review FERC’s order.  On August 15, 2014, a three judge panel of the D.C. Circuit held that FERC acted within the scope of its authority under the Federal Power Act when it adopted Order No. 1000, and that the final rule was not arbitrary and capricious or unsupported by substantial evidence.  See September 10, 2014 edition of the WER.  LPPC’s petition seeks to reverse this decision insofar as it supports FERC’s proposal for cost allocation.

To see the petition, click here.