U.S. Court of Appeals Asked to Rehear its Divided Ruling Overturning Important Measure to Protect, Strengthen U.S. Power Grid

(Washington, D.C. — July 9, 2014) Environmental Defense Fund (EDF), the Natural Resources Defense Council (NRDC), and the Citizen’s Utility Board (CUB) have jointly asked the U.S. Court of Appeals for the D.C Circuit for permission to file an amicus brief in support of the Federal Energy Regulatory Commission (FERC) in a case that could protect a critical measure for the U.S. power grid.

FERC has asked the full court to reconsider a decision by a panel of its judges that overturned FERC Order 745 (see Electric Power Supply Association v. FERC, No. 11-1486). Yesterday, EDF, NRDC, and CUB joined together in asking for permission to file an amicus brief in support of FERC.

“Our nation’s strong interest in clean, reliable, and customer-friendly power took a big step backwards with the unfortunate court decision. EDF supports FERC’s petition for rehearing, and seeks invitation to file as an amicus in the case for this same reason. Demand response, an invaluable component of a modernized energy system, is cleaner and more cost-effective than building new power generation. As the U.S. advances into the clean energy economy, demand response should play an increasingly larger role in how our electricity is produced, delivered, and consumed. The court’s decision to overturn FERC Order 745 stymies that growth,” said Jim Marston, Vice President, US Climate and Energy, Environmental Defense Fund.

FERC Order No. 745 is designed to help the U.S. meet its energy needs by ensuring that demand response solutions have access to the wholesale electricity market. A sharply divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit overturned the measure on May 23, 2014. Judge Harry Edwards vigorously dissented from the majority opinion by Judge Janice Rogers Brown. FERC and a number of other parties have petitioned the court to rehear the case en banc. 

Environmental Defense Fund believes that the dissent in that ruling was anchored in fact and law, and that the court should reconsider its decision. 

Yesterday’s filing states:

“Our nation’s strong interest in clean, reliable, and customer-friendly power took a big step backwards with the unfortunate court decision. EDF supports FERC’s petition for rehearing, and seeks invitation to file as an amicus in the case for this same reason. Demand response, an invaluable component of a modernized energy system, is cleaner and more cost-effective than building new power generation. As the U.S. advances into the clean energy economy, demand response should play an increasingly larger role in how our electricity is produced, delivered, and consumed. The court’s decision to overturn FERC Order 745 stymies that growth,” said Jim Marston, Vice President, US Climate and Energy, Environmental Defense Fund.

You can read the entire motion and amicus brief here.    

The court will now determine whether to allow EDF and others to file an amicus brief, and whether to hear the case en banc. An important next step is whether the Court, exercising its discretionary powers, orders the opposing parties to file a response to FERC’s petition; such an order could be issued within the next several weeks.