Portland General Electric Co. v. Federal Energy Regulatory Commission
2017 U.S. App. LEXIS 7222
| D.C. Cir. | 2017Background
- PáTu Wind Farm (9 MW, qualifying PURPA small power producer) sells power to Portland General Electric under an OPUC‑approved "off‑system" standard power‑purchase agreement; PáTu’s output is transmitted via Wasco and Bonneville to Portland’s Troutdale substation.
- PáTu contends Portland must purchase all energy PáTu "produces" (including unscheduled or real‑time output) and that Portland must use dynamic scheduling (dynamic transfer) to accept that variable output.
- Portland requires day‑ahead whole‑MW schedules and pays avoided‑cost rates only for scheduled deliveries; unscheduled shortfalls/overages are settled at market rates or must be made up, per Portland’s practice.
- OPUC concluded Portland must purchase all power PáTu delivers but saw no contractual requirement for dynamic scheduling; Oregon Court of Appeals affirmed without opinion.
- PáTu petitioned FERC, arguing PURPA (18 C.F.R. § 292.303(a)) requires purchase of any energy made available and that Portland’s refusal to provide dynamic scheduling and alleged discriminatory conduct violated FERC rules; FERC ordered Portland to accept PáTu’s entire net output but declined to require dynamic scheduling and dismissed FPA discrimination/standards‑of‑conduct claims.
- Portland and PáTu separately sought review in this Court; court consolidated petitions, dismissed Portland’s petition for lack of jurisdiction and denied PáTu’s petition on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does this Court have jurisdiction to review Portland’s challenge to FERC’s PURPA order? | Portland: FERC’s order is mandatory and fixes rights, so directly reviewable under FPA § 313(b) via the Midland exception. | FERC: Order is declaratory/advisory (no deadline or enforcement consequence), so not reviewable here. | Dismissed for lack of jurisdiction: the orders are non‑binding/declaratory per Midland, so § 313(b) review is unavailable. |
| Did FERC properly interpret PURPA to require Portland to purchase PáTu’s entire net output? | PáTu: PURPA and the PPA require purchase of all energy produced/delivered; dynamic scheduling is needed to effectuate that duty. | Portland: Purchase obligation is governed by state contract/scheduling rules; FERC cannot impose methods like dynamic scheduling on a state‑regulated contract. | FERC’s interpretation stands: Portland must accept PáTu’s entire net output as a matter of PURPA obligations, but FERC declined to mandate dynamic scheduling. |
| Can FERC require Portland to provide dynamic scheduling or is that a transmission‑service (FPA) issue? | PáTu: Denial of dynamic scheduling is discriminatory and violates FPA anti‑discrimination and standards‑of‑conduct rules. | Portland/FERC: Dynamic scheduling is transmission service territory; PáTu is not Portland’s transmission customer (Wasco/Bonneville are), so those FPA rules do not apply. | Denied: FERC properly rejected claims under FPA anti‑discrimination and standards‑of‑conduct rules because PáTu is not Portland’s transmission customer; FERC may enforce PURPA purchase obligations but need not prescribe dynamic scheduling. |
| Did FERC err by rejecting PáTu’s procedural filing requesting tariff modification for dynamic scheduling? | PáTu: Filing should have been considered, not rejected as an impermissible "answer to an answer." | FERC: The submission functionally was an answer to an answer and was barred by procedural rule; agency interpretation of its rules controls. | Denied: Court defers to FERC’s reasonable interpretation and application of its procedural rule; PáTu did not challenge that interpretation as unreasonable. |
Key Cases Cited
- FERC v. Mississippi, 456 U.S. 742 (discussing PURPA’s purposes and state enforcement role)
- American Paper Institute, Inc. v. American Electric Power Service Corp., 461 U.S. 402 (explaining PURPA’s encouragement of cogeneration and small power production)
- Niagara Mohawk Power Corp. v. FERC, 117 F.3d 1485 (describing PURPA’s self-contained scheme)
- Midland Power Co‑op. v. FERC, 774 F.3d 1 (holding declaratory FERC PURPA orders without enforcement consequences are not reviewable under FPA § 313(b))
- Industrial Cogenerators v. FERC, 47 F.3d 1231 (explaining enforcement channeling of PURPA § 210(h) into FPA district‑court scheme)
- New York v. FERC, 535 U.S. 1 (describing FERC’s FPA jurisdiction over wholesale sales and transmission)
- Consumers Energy Co. v. FERC, 428 F.3d 1065 (deference to FERC interpretations of its own orders)