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FERC had discretion not to apply planning mandates to consumer-owned utilities, APPA, LPPC, NRECA say


From the October 25, 2013 issue of Public Power Daily

Originally published October 25, 2013

The Federal Energy Regulatory Commission acted lawfully in exercising its discretion not to require consumer-owned and other non-jurisdictional utilities to participate in the regional planning and cost allocation features of Order No. 1000, APPA, the Large Public Power Council and National Rural Electric Cooperative Association told a federal appeals court. The language of Section 211A of the Federal Power Act makes clear that Congress intended to give FERC that discretion, they said in an Oct. 16 brief to the U.S. Court of Appeals for the District of Columbia Circuit in South Carolina Public Service Authority v. FERC.

That delegation of discretion means the commission’s decision not to exercise its Section 211A authority in the Order No. 1000 proceedings is presumptively unreviewable, APPA, LPPC and NRECA said. Contrary to contentions by the Edison Electric Institute, the commission’s decision not to act does not create undue discrimination, they said. Even assuming FERC had the authority and obligation under Section 206 of the Federal Power Act to impose Order No. 1000’s planning and cost allocation mandates on investor-owned utilities, "that fact does not dictate that FERC exercise its discretionary power under" Section 211A, they said.

The court should refrain from prejudging whether FERC possesses the authority to act under Section 211A at a later time, the associations said. That issue is not presented in this case, they said.
 

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