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Public Service Electric & Gas Co. v. Federal Energy Regulatory Commission

United States Court of Appeals, District of Columbia Circuit

April 14, 2015

PUBLIC SERVICE ELECTRIC AND GAS COMPANY, ET AL., PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT, JERSEY CENTRAL POWER & LIGHT COMPANY, ET AL., INTERVENORS

Argued: January 7, 2014.

John Lee Shepherd Jr. argued the cause for petitioners. With him on the briefs were Jodi L. Moskowitz, Gary E. Guy, John Longstreth, Donald A. Kaplan, and William M. Keyser.

Randall B. Palmer, Kenneth G. Jaffe, and Michael E. Ward were on the reply brief for intervenors Jersey Central Power & Light Company, et al. in support of petitioners.

Lona T. Perry, Senior Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. With her on the brief were David L. Morenoff, Acting General Counsel, and Robert H. Solomon, Solicitor.

Before: SRINIVASAN, Circuit Judge, and SENTELLE and RANDOLPH, Senior Circuit Judges.

OPINION

Page 1271

Sentelle, Senior Circuit Judge.

Petitioners are fourteen electrical transmission companies operating as members of the regional transmission organization PJM Interconnection, LLC. As incumbent members of the organization, petitioners contend that PJM's governing agreements afford them a right of first refusal for proposed transmission facility expansions or upgrades within their zones. The Federal Energy Regulatory Commission (" FERC" ) held that no such right of first refusal exists and that PJM may designate third-party developers to construct transmission facilities within incumbent members' zones. The incumbent transmission owners petition for review, arguing that the Commission lacks jurisdiction over transmission facility development and that the Commission's interpretation of PJM's governing agreements is arbitrary, capricious, or otherwise not in accordance with law under the Administrative Procedure Act, 5 U.S.C. § 706(2).

We held this case in abeyance pending the decision in South Carolina Public Service Authority v. FERC, 762 F.3d 41, 412 U.S.App.D.C. 41 (D.C. Cir. 2014). Now that there is a final decision in that case, we remove this case from abeyance. After reviewing the original and supplemental briefing, and with the benefit of oral argument, we dismiss the petition for review because Article III of the Constitution does not permit us to issue an advisory opinion.

I.

Petitioners are members of PJM Interconnection, LLC, a regional transmission organization " to which transmission providers . . . transfer operational control of their facilities for the purpose of efficient coordination." Morgan Stanley Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty., Wash., 554 U.S. 527, 536, 128 S.Ct. 2733, 171 L.Ed.2d 607 (2008). Regional transmission organizations like PJM combine multiple utility power grids into a single transmission system to " reduce technical inefficiencies caused when different utilities operate different portions of the grid independently." Id. Formed in 1927, PJM is the oldest and largest regional transmission organization. Atlantic City Elec. Co. v. FERC, 295 F.3d 1, 5, 353 U.S.App.D.C. 1 (D.C. Cir. 2002). Today, PJM coordinates the movement of wholesale electricity in thirteen mid-Atlantic states and the District of Columbia. Maryland Pub. Serv. Comm'n v. FERC, 632 F.3d 1283, 1284, 394 U.S.App.D.C. 187 (D.C. Cir. 2011) (per curiam).

" Among its duties, PJM is responsible for preventing interruptions to the delivery of electricity . . . by ensuring that its system has sufficient generating capacity." Id. PJM fulfills this duty in part by upgrading and enhancing its system in accordance with procedures set forth in its governing agreements, which include: the Regional Transmission Expansion Plan in PJM's Operating Agreement, the Consolidated Transmission Owners Agreement (" Owners Agreement" ), and the PJM Open Access Transmission Tariff (" Tariff" ).

Petitioners seek review of four FERC orders from two proceedings. In both proceedings, non-incumbent developers argued that no right of first refusal existed within PJM's ...


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