With utilities, trade associations and state commissions, the coalition participated in three briefs filed on May 28 with the U.S. Court of Appeals for the District of Columbia Circuit. One brief addressed Order 1000's controversial cost-allocation provision. Another examined FERC's transmission planning requirements. The third provided a statement of facts and addressed standards of review. To view each of the briefs, please click
Coalition President and Chief Counselsaid the three filings share a common theme: "FERC's regulatory grasp exceeds its statutory reach."
On cost allocation, the coalition's brief stated that FERC acted outside its authority under the Federal Power Act (FPA) and contradicted Supreme Court precedent "by providing transmission developers with a mechanism to secure funding for their projects on a socialized basis, from entities with whom they have no business relationship and to whom they do not provide service."
"Whatever FERC's policy objectives, the FPA does not permit it to establish a tax socializing the cost of transmission development without respect to commercial relationships the Commission is not permitted to forge, but upon which its regulatory authority is premised," the brief said.
"As the Orders on this critical matter are outside FERC's authority, and no lawful revisions can be envisioned, Petitioners ask the Court to vacate the cost allocation provisions of the Rule," the brief concluded.
On transmission planning, the coalition's brief said FERC lacks the statutory authority to mandate transmission. FPA provisions "empower FERC to ensure that transactions involving voluntary planning arrangements are just, reasonable and non-discriminatory, but not to mandate transmission planning in the first instance," the brief said. The coalition also challenged FERC's ability to predicate its far-reaching requirements solely on FERC's "theory" that its mandates "might" lead to a more efficient transmission system.
The coalition noted the negative effects of FERC's transmission planning efforts. The orders "will harm, not facilitate, transmission planning and expansion by undermining reliability and the efficiencies provided by vertical integration and by making transmission planning more bureaucratic, contentious and litigious," the brief said.
FERC's transmission planning mandates also unlawfully infringe on the states' long-standing authority over transmission development, the brief said. FERC maintains that the states continue to retain their authority over siting and construction by refusing to site projects. "By mandating a regional transmission planning process (that will both select which facilities will be included in the plan and which facilities will construction those facilities), and controlling which projects receive cost allocation, FERC, not the states, effectively decides whether a project should be built," the brief stated.
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SOURCE Coalition for Fair Transmission Policy