Calpine Corp. v. Federal Energy Regulatory Commission
702 F.3d 41
D.C. Cir.2012Background
- This case concerns FERC’s authority to regulate station-power charges and the netting interval used to determine when such charges apply.
- Generators may obtain station power on-site, remotely, or from third parties; netting intervals determine whether charges are retail or transmission/wholesale.
- Order 888 unbundled generation from transmission/distribution and promoted ISOs; netting intervals were central to whether station power purchases trigger retail charges.
- Niagara Mohawk recognized questions about FERC’s ability to set netting intervals but accepted a concession that hourly netting was within FERC’s scope, leaving merits undecided.
- Southern California Edison held that FERC lacked a clear jurisdictional basis to set retail netting intervals and remanded, prompting further agency action.
- Calpine petitioned for review of remand orders; the court ultimately upheld FERC’s remand decisions, denying Calpine’s challenge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FERC had wholesale or transmission jurisdiction to set netting intervals for retail station power | Calpine argues for wholesale jurisdiction or an alternative basis; order exceeds authority | FERC contends its jurisdiction is limited and previously disclaimed wholesale basis for this context | Not arbitrary; FERC’s jurisdictional basis upheld on remand |
| Whether differing netting intervals create a preemption conflict with state retail regulation | State retail rules with hourly netting create conflict with FERC’s tariff | Different netting intervals affect billing, not energy allocation; no preemption conflict | No preemption conflict; differences affect value, not allocation; remand affirmed |
| Whether petitioners have standing and an actual injury given potential retroactive charges | Independent generators suffer discrimination and potential retroactive charges | Petitioners’ asserted injury is speculative and may be cured by regulation or California remedies | Standing concerns were acknowledged; petition denied on merits; injury theory insufficient under Article III |
| Whether the remand decisions adequately addressed the justness and reasonableness of the tariff | FERC failed to reevaluate tariff’s justness and reasonableness in remand | Remand limited to jurisdictional findings; tariff remained within scope | Not arbitrary or capricious; remand affirmed; agency not required to redo justification beyond jurisdictional scope |
Key Cases Cited
- Niagara Mohawk Corp. v. FERC, 452 F.3d 822 (D.C. Cir. 2006) (questions about netting intervals and FERC authority)
- Southern California Edison Co. v. FERC, 603 F.3d 996 (D.C. Cir. 2010) (limits of FERC jurisdiction over netting for retail sales)
- Entergy Services, Inc. v. FERC, 400 F.3d 5 (D.C. Cir. 2005) (FERC wholesale jurisdiction over certain allocations questioned)