CFTP Files Reply Briefs in U.S. Court of Appeals Challenging FERC's Defense of Order 1000

Transmission Orders "a Regulatory Sea Change" Unjustified by Power Act     

WASHINGTON, Nov. 19, 2013 /PRNewswire-USNewswire/ -- Along with more than two dozen parties, the Coalition for Fair Transmission Policy has filed two briefs with a federal appellate court that respond to the Federal Energy Regulatory Commission's legal defense of Order 1000,  which mandated an unprecedented restructuring of the nation's electricity grid.

The coalition joined the National Association of Regulatory Utility Commissioners, utilities, trade associations, and public power organizations on briefs filed November 15 with the U.S. Court of Appeals for the District of Columbia Circuit. To view each of the briefs, please click here.

The first brief addressed controversial cost-allocation provisions and asked that key provisions in Order 1000 be reversed. "FERC lacks the authority to direct utilities to fund transmission developers from whom they do not take service," the brief said.

"FERC's view that a utility-customer relationship is unnecessary because the entire electric grid can be treated as  'a single machine,' providing 'one service,' the costs for which can be spread grid-wide, has no precedent," the brief added.

"FERC's requirement to allocate costs across the interstate grid based on undefined 'benefits' (which do not convey any right to use the facilities) further conflicts with public utilities' rights to set their rates in the first instance" under the Federal Power Act (FPA), the brief stated.

In the second brief on threshold issues, the Coalition challenged FERC's assertion that Order 1000 was simply the last in a series of evolutionary transmission restructuring orders. "The Orders constitute a regulatory sea change without grounding in the FPA or the record," the petitioners and supporting intervenors emphasized.

FERC's orders on regional transmission planning "usurp the role Congress expressly left" to voluntary coordination among utilities and are not based on the required "record of abuse" but on "speculation" that, without its orders, improved planning "may" not occur, the brief said. The Commission's interpretation that FPA provisions do not restrict its planning authority "runs afoul of over a half century of precedent," the brief added. FERC's "whole case" for its regional planning mandates is based on its assertion that "voluntary coordination" in the FPA encompasses only operations, not planning, a position that cannot be reconciled with the Court's or FERC precedent, the brief said.

The brief also addressed the effect of Order 1000 on state utility regulators. "FERC argues that the Orders are procedural and that any effects on State decision-making are permissible. To the contrary, FERC's assertions of jurisdiction over transmission development in Order 1000 are not permissible, as they directly interfere with core State regulatory functions created by State law," the brief added.

Coalition President and Chief Counsel Sue Sheridan said the filings reiterated coalition concerns about Order 1000.  "Regardless of FERC's goals and intentions with Order 1000, the Commission simply lacks authority under the Federal Power Act to implement such a sweeping and radical restructuring of the nation's power grid," Sheridan said.

The Coalition's filing comes as FERC's implementation of Order 1000 through a series of compliance filings has provoked a firestorm of criticism on Capitol Hill, from Florida to the Pacific Northwest, at state utility commissions, among public power advocates and even within the Commission itself, where Commissioner Tony Clark has issued several stinging dissents.

For more information, visit the Coalition's website, www.thecftp.org.

SOURCE Coalition for Fair Transmission Policy