59 F.4th 1287
D.C. Cir.2023Background
- PURPA grants certain benefits (including mandatory utility purchase obligations) to "qualifying small power production facilities" with "power production capacity" of no more than 80 MW. 16 U.S.C. § 796(17)(A).
- Broadview’s Montana project includes a 160 MW DC solar array, a 50 MW DC battery, and inverters with 80 MW AC net output (grid-facing capacity).
- Broadview applied for Commission certification as a qualifying facility; Edison Electric Institute and NorthWestern timely opposed; SEIA sought to intervene almost a year late.
- FERC initially denied certification by measuring capacity as the solar array’s 160 MW DC, but on rehearing reversed and adopted a "send-out" (net AC output to the grid) approach, concluding Broadview’s instantaneous send-out is capped at 80 MW.
- The D.C. Circuit upheld FERC’s interpretation as reasonable under Chevron and found FERC did not act arbitrarily or capriciously; the court dismissed SEIA’s petition for lack of Article III standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper measure of "power production capacity" under PURPA | Utilities: measure is the solar array’s DC rating (160 MW); capacity should be component-rated output | FERC: statute ambiguous; reasonable to measure facility by net send-out (AC delivered to grid) and by components working together | Court: statute ambiguous; defer to FERC under Chevron; measure by net AC send-out (up to 80 MW) |
| Effect of errors on FERC Form 556 | Utilities: Broadview’s Form 556 reported incorrect component numbers, so certification was flawed | FERC: Form 556 is an informational tool, not dispositive; record supports net-output determination | Court: FERC acted reasonably in treating Form 556 as informative, not dispositive |
| Whether the battery is a separate facility whose capacity must be aggregated | Utilities: battery is a separate facility and its capacity should be aggregated with the solar array | FERC: battery stores DC for later inversion; it functions as part of the single facility that produces grid-usable AC | Court: treating array + battery + inverters as one facility was reasonable; battery here isn’t a standalone counted facility |
| SEIA's standing to challenge denial of late intervention | SEIA: denial robbed it of opportunity to defend the send-out approach and causes injury | FERC: SEIA has no Article III injury from being unable to intervene; agencies may choose adjudication or rulemaking | Court: SEIA lacks injury-in-fact; no Article III standing; petition dismissed |
Key Cases Cited
- Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (agency interpretations entitled to deference if statute ambiguous and interpretation reasonable)
- Lujan v. Defs. of Wildlife, 504 U.S. 555 (standing requirements: injury-in-fact, causation, redressability)
- Sec. & Exch. Comm'n v. Chenery Corp., 318 U.S. 80 (agency may not rely on new grounds on appeal)
- Nat'l Treasury Emps. Union v. Fed. Lab. Rels. Auth., 754 F.3d 1031 (deference inquiry: consider language, structure, purpose, legislative history)
- FERC v. Mississippi, 456 U.S. 742 (PURPA purpose and statutory context)
- Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402 (background on PURPA's objectives)
- Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235 (jurisdiction and standing inquiry procedural guidance)