700 F. App'x 1
D.C. Cir.2017Background
- FERC’s Order No. 1000 revised regional transmission planning and cost-allocation rules; SPP amended its tariff accordingly to use a two-stage process: identify cost‑effective projects, then select developers via competitive bidding.
- FERC approved SPP’s tariff in a series of orders (2013–2015). LSP Transmission Holdings and LS Power Transmission (collectively, LSP) sought review of three of those approval orders.
- LSP challenged two principal features of SPP’s tariff: (1) certain bid-evaluation criteria are duplicative or insufficiently tied to rates; and (2) SPP excludes projects from competition when state/local laws (e.g., rights of first refusal, rights-of-way for incumbents) apply.
- LSP conceded it had no active bids, no bids rejected, and identified no specific project that SPP had awarded to an incumbent based on state-law rights.
- The court concluded LSP lacked Article III standing because any injury was speculative, so the petition for review was dismissed.
- The Commission conceded it would not invoke a collateral-attack defense against a future concrete challenge, so LSP could sue later if and when it suffered a concrete injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SPP’s bid-evaluation criteria violate Order No. 1000 / FERC duties | Criteria are duplicative or too attenuated from rates, so unlawful | Tariff merely sets future evaluative criteria; no current legal burden on LSP | Dismissed for lack of standing — injury speculative (no active or rejected bid) |
| Whether SPP improperly excludes projects from competition due to state/local laws (ROFR, ROW) | Exclusions bar competition and violate Order No. 1000 | Any injury is speculative absent an actual project denied entry for that reason | Dismissed for lack of standing — no identified project where exclusion caused harm |
| Whether LSP can later challenge tariff without being barred as a collateral attack | LSP fears future suit will be barred as collateral attack on FERC orders | FERC conceded it would not raise a collateral-attack defense | Court notes FERC estopped from raising collateral-attack defense on future concrete challenges |
Key Cases Cited
- Turlock Irrigation Dist. v. FERC, 786 F.3d 18 (D.C. Cir. 2015) (standing requires injury in fact)
- New York Reg’l Interconnect, Inc. v. FERC, 634 F.3d 581 (D.C. Cir. 2011) (challenge dismissed where injury was conjectural)
- Sacramento Mun. Util. Dist. v. FERC, 428 F.3d 294 (D.C. Cir. 2005) (discussing collateral-attack doctrine)
- S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41 (D.C. Cir. 2014) (upholding aspects of Order No. 1000)