Public Citizen, Inc. v. Federal Energy Regulatory Commission
839 F.3d 1165
| D.C. Cir. | 2016Background
- ISO New England (ISO‑NE) ran its eighth forward‑capacity auction (FCA 8) in Feb 2014; results were filed with FERC under FPA §205 and, due to insufficient competition, prices were administratively set, producing a large regional price increase.
- Petitioners (Public Citizen and Connecticut) timely objected alleging market‑power manipulation and requested FERC affirmatively determine FCA 8 rates were just and reasonable or set them for hearing.
- FERC Commissioners deadlocked 2–2 on whether to review or approve the FCA 8 rates; the Secretary issued Notices acknowledging the rates took effect by operation of law and stating the Notices were not Commission orders.
- Petitioners sought judicial review: (1) that the Secretary’s Notices were final orders reviewable under FPA §313(b); and (2) alternatively that FERC unlawfully withheld action under the APA, 5 U.S.C. §706(1).
- The D.C. Circuit dismissed for lack of jurisdiction, holding the deadlock did not constitute agency action (no collective Commission decision) and the FPA did not impose a nondiscretionary duty compelling FERC to set rates for hearing or affirmatively disapprove rates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Secretary’s Notices are "orders" reviewable under FPA §313(b) | Notices reflect Commission inaction that still constituted final, reviewable agency action | Deadlock produced no collective Commission action; Notices merely informational and not reviewable | Not an order; no §313(b) jurisdiction (deadlock is not agency action) |
| Whether FERC unlawfully withheld action under the APA by failing to set rates for hearing or prevent unjust rates | FPA’s declaration that unjust rates are "unlawful" creates a nondiscretionary duty to disapprove or set rates for hearing | FPA grants permissive authority (may/shall have authority) and provides no specific, unequivocal command; discretion remains with FERC | No APA jurisdiction: FERC had no legally compelled, discrete duty to act here |
Key Cases Cited
- Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) (federal courts must assure statutory grant of jurisdiction exists)
- Friends of the Earth v. U.S. EPA, 333 F.3d 184 (D.C. Cir. 2003) (limits of judicial review tied to statutory grant)
- NetCoalition v. Sec. Exch. Comm’n, 715 F.3d 342 (D.C. Cir. 2013) (scope of agency‑action included in statute controls review)
- Sprint Nextel Corp. v. FCC, 508 F.3d 1129 (D.C. Cir. 2007) (agency deadlock is not agency action when outcome occurs by operation of law)
- Fed. Election Comm’n v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) (permitting review of FEC probable‑cause deadlocks where statute contemplates dismissal)
- Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) (APA review of inaction limited to discrete, nondiscretionary duties)
- Southern Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444 (1979) (statutory permissive language can leave agency investigatory decisions unreviewable)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action requires consummation of agency decisionmaking and legal consequences)
- Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) (courts must enforce statutory limits on their jurisdiction)