Supreme Court hearing EPSA, FERC demand response case

scotus supreme court elp

Attorneys representing the Electric Power Supply Association and the Federal Energy Regulatory Commission are scheduled to make legal arguments early Oct. 14 before the U.S. Supreme Court on FERC’s demand response rule.

EPSA and certain other industry groups are trying to preserve the legal victory they gained in May of 2014 when the U.S. Court of Appeals for the District of Columbia Circuit overturned the FERC rule on demand response in its entirely.

The overturned rule seeks to encourage retail customers to reduce electricity consumption when economically efficient. The D.C. Circuit found that FERC was encroaching on the states’ exclusive jurisdiction to regulate the retail market.

The policy at issue is FERC Order No. 745, or the "pay to abstain" rule, as described by SCOTUS Blog analyst Lyle Denniston.

At Wednesday’s hearing, FERC’s arguments will be made by U.S. Solicitor General Donald B. Verrilli, Jr. In support of FERC, for the private firms, will be Washington, D.C., attorney Carter G. Phillips. The challengers — local companies, state commissions, and their trade groups — will be represented by Washington attorney Paul D. Clement, according to SCOTUS Blog.

The Supreme Court granted review as to two questions – one as to whether FERC has jurisdiction under the Federal Power Act and the other as to whether the full (locational marginal price) LMP compensation formula is arbitrary and capricious.

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