With the US Federal Energy Regulatory Commission failing to act on PJM Interconnection's capacity market reform filing because the commissioners were divided as to the lawfulness of the change, power generator trade groups have asked a federal appeals court to intervene.
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The Electric Power Supply Association filed late Nov. 29 a petition for review at the US Court of Appeals for the Third Circuit located in Philadelphia with respect to FERC's failure to act in the matter of proposed changes to PJM's minimum offer price rule, or MOPR, the merchant generator trade group said in a Nov. 30 email.
"FERC's inaction on the July 30, 2021 filing by PJM Interconnection proposing rule changes in the nation's largest power market must be reversed," said Todd Snitchler, EPSA president and CEO.
"EPSA intends to take appropriate legal action toward achieving that goal and addressing the unjust and unreasonable tariff provisions allowed to go into effect by operation of law by FERC," Snitchler said.
A deadlocked FERC failed to act within 60 days on PJM's proposed replacement for the contentious MOPR rule targeting state-subsidized clean energy resources, allowing the filing to become effective by operation of law.
The 13-state grid operator filed the replacement proposal (ER21-2582) July 30 in a long-running proceeding dealing with how to account for the potential price impacts of states' varied clean energy policies in the wholesale power market.
FERC also did not act on requests for rehearing regarding the MOPR decision, meaning the requests were effectively denied.
FERC said Nov. 29 that in the absence of commission action on requests for rehearing within 30 days from being filed, "the requests for rehearing may be deemed to have been denied."
The PJM Power Providers Group is also seeking judicial review before the US Court of Appeals for the 3rd Circuit (No. 21-3068). The cases could provide the first legal test for a special section of the Federal Power Act designed to resolve disputes over FERC orders that take effect automatically because the commission is deadlocked.
EPSA filed its petition on its own, however, Snitchler said EPSA is "collaborating with fellow petitioners whose interests [and membership] significantly overlap with ours."
EPSA filed in the 3rd Circuit because of its "familiarity with these issues and demonstrated expertise on market-related matters" and it is also the circuit where PJM is domiciled, Snitchler said.
Additionally, the US Senate Nov. 16 confirmed Willie Phillips to be the fifth FERC commissioner, giving Democrats a 3-2 majority at the key regulator for the first time under the Biden administration.
Once Phillips is officially sworn in, FERC could issue an order on the PJM MOPR proceeding.