In Response to Commissioner Christie's June 28, 2024, Statement
The authority of the Federal Energy Regulatory Commission to regulate regional transmission planning and cost allocation has long been recognized by bipartisan majorities of the Commission and U.S. Court of Appeals for the District of Columbia Circuit.[1] It could hardly be otherwise. Both regional transmission planning and cost allocation are practices that have exactly the type of “direct effect” on Commission-jurisdictional rates that the U.S. Supreme Court has held brings a matter within this Commission’s jurisdiction.[2] Indeed, our authority to regulate regional transmission planning and cost allocation is essential to the Commission’s ability to ensure that customers have access to reliable, affordable supplies of electricity—our most fundamental statutory responsibility.[3]
Nothing in the Supreme Court’s Loper Bright decision overturning the Chevron doctrine calls that conclusion into question.[4] That we have that basic authority remains not only a reasonable reading of the Federal Power Act, but the best reading of the statute, exactly as Loper Bright requires.[5] Similarly, the Court’s decision recognizes the stare decisis effect of existing precedent,[6] including the D.C. Circuit’s South Carolina decision, which, in upholding Order No. 1000, affirmed that the Commission has jurisdiction to regulate regional transmission planning and cost allocation practices.[7] Order No. 1920 fits easily within the South Carolina precedent: It does not promote particular public policies, does not dictate specific outcomes, does not include any selection mandate whatsoever, and employs only the lightest touch possible on cost allocation by simply restating the well-established cost causation principle. As such, Commissioner Christie’s assertions about Loper Bright’s implications for Order No. 1920 cannot be squared with the Court’s actual holding in that case.
As always, I respect Commissioner Christie’s regulatory perspective on how we should exercise the regulatory “discretion” that Congress vested in this Commission.[8] But his disagreement with how the Commission exercised that discretion in Order No. 1920 does not provide a logical or reasonable basis for calling into question whether we have that authority in the first place.
I too look forward to working with the newly constituted Commission on these important issues. In so doing, I remain committed, as our statute requires, to exercising the legal authority that Congress gave us to ensure reliable and affordable power. Order No. 1920 is—and will remain—one of the most important ways in which we meet that responsibility.
[1] See, e.g., S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41 (D.C. Cir. 2014) (South Carolina); Transmission Plan. & Cost Allocation by Transmission Owning & Operating Pub. Utils., Order No. 1000, 76 FR 49842 (Aug. 11, 2011), 136 FERC ¶ 61,051 (2011), Order No. 1000-A, 77 FR 32184 (May 31, 2012), 139 FERC ¶ 61,132 (2012), order on reh’g & clarification, Order No. 1000-B, 141 FERC ¶ 61,044 (2012), aff’d South Carolina, 762 F.3d 41; Preventing Undue Discrimination & Preference in Transmission Serv., Order No. 890, 72 FR 12266 (Mar. 15, 2007), FERC Stats. & Regs. ¶ 31,241, 118 FERC ¶61,119 (2007), order on reh’g, Order No. 890-A, 73 FR 2984 (Jan. 16, 2008), FERC Stats. & Regs. ¶ 31,261 (2007) (cross-referenced at 118 FERC ¶ 61,119), order on reh’g and clarification, Order No. 890-B, 73 FR 39092 (July 8, 2008), 123 FERC ¶ 61,299 (2008), order on reh’g, Order No. 890-C, 74 FR 12540 (Mar. 25, 2009), 126 FERC ¶ 61,228 (2009), order on clarification, Order No. 890-D, 74 FR 61511 (Nov. 25, 2009), 129 FERC ¶ 61,126 (2009); see also South Carolina, 762 F.3d at 58 (“Commission-mandated transmission planning is not new. . . . [Order No. 1000] builds on Order No. 890’s requirements in light of changed circumstances and is simply the next step in a series of related reforms that began no later than Order No. 888.”).
[2] FERC v. Elec. Power Supply Ass’n, 577 U.S. 260, 277-79 (2016); NARUC v. FERC, 964 F.3d 1177, 1186 (D.C. Cir. 2020); see, e.g., South Carolina, 762 F.3d at 56 (stating that the petitioners cannot “dispute that the Commission is obligated by the plain text of Section 206 to ensure that [transmission planning] practices are just and reasonable and not unduly discriminatory or preferential”).
[3] See generally NAACP v. FPC, 425 U.S. 662, 670 (1976) (discussing the principal purpose of the Federal Power Act).
[4] Loper Bright Enterprises v. Raimondo, No. 22-1219 (U.S. June 28, 2024).
[5] Id. at 23.
[6] Id. at 34-35.
[7] South Carolina, 762 F.3d 41 at 56-59, 84-85.
[8] Loper Bright, No. 22-1219, slip op. at 17 (noting that statutory terms, such as “reasonable,” indicate that the relevant agency “is authorized to exercise a degree of discretion”).