The Supreme Court is set to consider a petition questioning the authority of the Federal Energy Regulatory Commission during tied decisions.
On Sept. 30, the high court is scheduled to discuss the petition filed by the Ohio Public Utilities Commission earlier this year that challenges a lower court ruling that upheld a deadlocked FERC decision in 2021.
FERC is an independent agency composed of up to five commissioners appointed by the president that regulates interstate transmission of electricity, natural gas, and oil. The commission is traditionally made up of people on both sides of the aisle, with each commissioner serving a five-year term. Changes in administrations and term limits can often result in the commission being made up of only four people, causing deadlocked votes.
This was the case for the 2021 decision in question, in which FERC issued its minimum offer price rule that looked to increase renewable energy for the largest RTO in the country, PJM Interconnection, according to E&E News.
Specifically, the rule removed price restrictions on renewable projects such as solar, wind, and nuclear, which were subsidized by the states and participated in PJM’s wholesale auction. It came after PJM’s 2019 MOPR favored coal and natural gas. The agency was unable to vote on the rule, ending in a 2-2 split, but the regulation still went into effect.
The U.S. Court of Appeals for the 3rd Circuit upheld the revised MOPR last year. That ruling stemmed from the Federal Power Act, amended by Congress in 2018, which permits courts to conduct judicial review in deadlocked decisions.
By deferring to FERC, Ohio’s PUC argued that the court undermined “the delicate balance of power between Congress, administrative agencies, and the court,” E&E News reported.
The PUC also reportedly claimed that the court failed to keep the agency accountable, allegedly expanding its authority. “Requiring an agency to offer a defensible justification for its actions, the agency-reasoning requirement provides an important check on an agency’s power,” the appeal reads. “The Third Circuit swept that check away.”
The petition to the Supreme Court follows the dissent from James Danly, one of the Republican FERC commissioners who objected to the 2021 rule.
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At the time, he claimed the revisions to the 2019 MOPR were “deliberately ineffectual” in addressing the market impact of state-subsidized renewable projects on coal and gas. He also warned that considering a deadlocked FERC vote as approval would “present a handful of novel but foreseeable issues on appeal,” per E&E News.
It remains unclear whether the Supreme Court will take up the case in the coming weeks. The high court may reveal whether it will grant or reject a decision on the appeal as soon as next month.