2 F.4th 1285
10th Cir.2021Background:
- In 2017 the City of Farmington adopted an ordinance charging customers who generate their own electricity additional fees; solar-owning residents and Vote Solar sued, alleging price discrimination under PURPA/FERC rules.
- Plaintiffs filed in federal district court after FERC declined to intervene; the district court sua sponte questioned its PURPA jurisdiction.
- The district court rejected the widely used as-implemented vs. as-applied framework and held federal courts have jurisdiction only where a utility "outright failed" to implement a FERC rule (i.e., did not make a reasonable implementation effort).
- Based on that standard, the district court dismissed Plaintiffs’ claim under Rule 12(b)(6) for failing to allege an outright failure to implement; it did not resolve standing.
- The Tenth Circuit reversed, holding Section 210(h) permits federal review of whether a utility’s implementation is facially consistent with FERC rules (an as-implemented challenge) and remanded for further proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of federal jurisdiction under PURPA §210(h): does “implement” require only a reasonable/ good-faith effort, or require facial consistency with FERC rules? | "Implement" means utilities must act or regulate consistently with FERC rules; federal courts may hear as-implemented (facial) challenges. | Federal jurisdiction is limited to cases where a utility made no reasonable effort — only outright failures to implement are federal; other disputes belong in state court. | The Tenth Circuit held "implement" requires facial consistency with FERC rules; federal courts may adjudicate as-implemented challenges. |
Key Cases Cited
- New York v. F.E.R.C., 535 U.S. 1 (2002) (describes PURPA’s purpose to promote small-scale renewables)
- Allco Renewable Energy Ltd. v. Mass. Elec. Co., 875 F.3d 64 (1st Cir. 2017) (adopts as-implemented/as-applied framework; federal courts may review implementation consistency)
- Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380 (5th Cir. 2014) (endorses federal jurisdiction over proper implementation challenges)
- New York State Elec. & Gas Corp. v. F.E.R.C., 117 F.3d 1473 (D.C. Cir. 1997) (holding failure to ensure lawful rates is a failure to implement and subject to federal enforcement)
- Greensboro Lumber Co. v. Ga. Power Co., 844 F.2d 1538 (11th Cir. 1988) (recognizes the implementation vs. application distinction)