On September 9, 2025, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) on remand from the U.S. Supreme Court upheld FERC’s order granting Broadview Solar, LLC’s (“Broadview”) hybrid solar and battery project qualifying facility (“QF”) status based on FERC’s interpretation of the Public Utility Regulatory Policies Act of 1978 (“PURPA”). Specifically, even without the benefit of Chevron deference (discussed below), the D.C. Circuit reaffirmed FERC’s interpretation that PURPA’s 80 MW statutory size limitation should be applied using the capacity a QF can “send out” to the grid, even if the facilities have a higher aggregate generating capacity.

The crux of the statutory question at hand was whether Broadview’s hybrid 160 MW solar array and 50 MW battery storage facility (both MW values are direct current, or “DC”) qualified as a QF based on the fact that the DC-to-AC (or alternating current) inverters would result in a maximum net AC power production capacity to the point of interconnection of 80 MW, which is the maximum capacity for a small power production facility to qualify as a QF under PURPA and FERC’s implementing regulations. In 2023, the D.C. Circuit upheld FERC’s March 2021 order granting Broadview QF status under PURPA by applying a deferential standard under Chevron U.S.A. v. Natural Resources Defense Council (“Chevron”) (see March 3, 2023, edition of the WER and March 25, 2021, edition of the WER). However, certain parties petitioned for U.S. Supreme Court’s review of the D.C. Circuit’s 2023 decision. In July 2024, the Supreme Court issued its decision in a separate case, Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce, et al. (“Loper Bright”) (see July 3, 2024, edition of the WER). As a result of the Loper Bright decision limiting Chevron deference, the Supreme Court granted the petition for certiorari, vacated the D.C. Circuit’s 2023 decision, and remanded the case to the D.C. Circuit for further consideration in light of the Loper Bright decision.

On remand, the D.C. Circuit reviewed the statutory text of PURPA, focusing on the definition of “power production capacity” for facilities like Broadview, which combined large DC-generating solar facilities, battery storage, and inverters that converted the DC power to AC for delivery to the grid. The D.C. Circuit rejected Petitioners’ argument that “power production capacity” refers to the maximum DC output of the solar array, instead concluding that the statute is best understood as the maximum net AC output the facility can deliver to the grid at any one time. The majority reasoned that the statutory language refers to the capacity of the facility as a whole, not its individual components, and that only grid-usable AC power is relevant for PURPA’s mandatory purchase obligation. The majority also determined that FERC’s “send out” approach—measuring capacity by the maximum net output delivered to the grid—is consistent with both the statutory text and the legislative purpose of encouraging small-scale alternative energy production. The majority also noted that FERC’s brief departure from this approach in its initial order did not undermine the persuasiveness of its rehearing decision, which reverted to the “send out” methodology (see September 10, 2020 edition of the WER).

In a dissenting opinion, Judge Walker disagreed with the majority that Broadview is a “small power facility” because it can produce up to 130 MWs of useful power. Specifically, Judge Walker opined that, based on the plain meaning of “facility” and “power production capacity,” Broadview’s power production capacity should include both the 80 MWs of AC power sent directly to the grid from the inverters and the 50 MWs of DC power stored in the battery for later use, resulting in a total capacity above the statutory limit, and therefore, does not qualify as a small power production facility within the meaning of PURPA.

The full opinion can be found here.