Electricity Markets

Parties raise jurisdictional concerns over JEA petition at FERC

Public power and cooperative entities voiced opposition to a recent petition filed at the Federal Energy Regulatory Commission by Florida’s JEA asking the Commission to make a number of legal determinations related to a power purchase agreement (PPA) between JEA and the Municipal Electric Authority of Georgia (MEAG Power). 

Under the PPA, MEAG Power has agreed to sell JEA a portion of the output of Plant Vogtle Units 3 and 4, two new nuclear generation units under construction in Burke County, Georgia. 

The petition filed by JEA, a public power utility, was filed at FERC on Sept. 17 (Docket No. EL18-200). In the petition, JEA asks FERC to declare that it has jurisdiction “over the PPA (and the transactions therein) under Section 201(b)(1)” of the Federal Power Act, even though MEAG and JEA are each exempt from regulation by the Commission as “public utilities” under Section 201(f) of the FPA.

The American Public Power Association, the Large Public Power Council, the National Rural Electric Cooperative Association and the Transmission Access Policy Study Group filed a joint protest in response to the JEA petition on Oct. 15.

As a threshold matter, the trade groups expressed regret that they were compelled to intervene in the proceeding and protest the petition, but said that the legal issues raised by the petition relating to the Commission’s jurisdiction are of profound importance and concern to the groups and their members. 

The Association and the other groups said that they take no position on the underlying dispute between JEA and MEAG Power related to the parties’ respective rights and obligations under the PPA.

The protest by the trade groups was limited to the issue of FERC’s jurisdiction over the PPA. The groups said that FERC’s general jurisdiction over wholesale sales in interstate commerce under FPA section 201(b) cannot override the specific jurisdictional exclusions for public power utilities reflected in FPA section 201(f) and other provisions of the statute. 

In addition, they argued that Congress’ exclusion of public power utilities from FERC’s jurisdiction over wholesale sales does not leave a regulatory gap, as JEA’s petition contends. “Because the plain language of FPA sections 201(f) and 205 bars the relief JEA seeks, there is no gap to fill.”

The groups also said that while JEA states that its petition is limited to the particular facts of its PPA with MEAG Power, the petition’s jurisdictional arguments, if accepted by FERC, could apply much more broadly. 

The trade groups said that FERC acceptance of JEA’s position would “create uncertainty over potential Commission regulation of an untold number of public power transactions and activities long acknowledged to be outside the scope of the FPA.”

Other public power entities also submitted filings at the Commission in response to the JEA petition.

A joint protest was submitted, for example, by Nebraska Public Power District, ElectriCities of North Carolina, Lakeland Electric, New York Power Authority, North Carolina Eastern Municipal Power Agency, North Carolina Municipal Power Agency No. 1, Omaha Public Power District, Orlando Utilities Commission, Public Utility District No. 1 of Chelan County, Sacramento Municipal Utility District, and Salt River Project.  A group of joint action agencies also jointly objected to the JEA petition.  The joint action agency group included American Municipal Power, Inc., Grand River Dam Authority, Indiana Municipal Power Agency, Municipal Electric Agency of Nebraska, Southern California Public Power Authority, and Utah Associated Municipal Power Systems.

Nebraska Public Power District said in a separate filing that the jurisdictional arguments raised in the JEA petition could adversely its financing costs, noting that NPPD had determined “to disclose the JEA Petition in the official statements accompanying NPPD’s bond issuances this month.”

Protestors echoed the concern that acceptance of JEA’s legal position would subject other public power wholesale contracts to FERC jurisdiction. The Missouri Joint Municipal Electric Utilities Commission (MJMEUC) said, for example, that a grant of JEA’s requested declarations could undermine the jurisdictional status of MJMEUC’s contracts, particularly those involving sales to out-of-state public power purchasers.  

MJMEUC noted in its Oct. 17 filing that while most MJMEUC members are located in Missouri, a number are not. “In particular, MJMEUC sells power from MJMEUC’s Plum Point resource to several municipal utility Advisory members located in Arkansas,” MJMEUC said.

Other cooperative entities besides NRECA also submitted filings at FERC that protested the JEA petition. Those entities include Kansas Electric Power Cooperative, which has 19 rural electric cooperative member systems, and the North Carolina Electric Membership Corporation.