[BETA] Fortnightly

The transmission industry may have to wait even longer for a final decision on challenges to Order 2000 if FERC gets its way.

Industry shouldn't hold its breath while waiting for the D.C. Circuit Court of Appeals to resolve the challenges to Order 2000. Aside from the generally slow pace of judicial deliberations, there's another wrinkle: the Federal Energy Regulatory Commission (FERC) is pushing hard to have the court put off any decision on the merits, claiming the complaints of the challengers are not yet specific enough for judicial review. Not surprisingly, the challengers feel differently. Questions from the court at the Oct. 17 oral argument indicate that a decision may be deferred. If so, transmission restructuring could be left gasping for air.

What infuriates challengers about the FERC's position is that the commission has already held in some individual regional transmission organization (RTO) proceedings that the very same challenges were impermissible collateral attacks on Order 2000. For FERC to argue the complaints are premature in the Order 2000 appeal, but label them impermissibly late attacks when raised in the individual proceedings, begs the question of when, exactly, FERC believes those issues can be raised.

Though the D.C. Circuit Court could very well add to the delay in resolving some thorny issues of Order 2000, it appears that the court has essentially given the challengers a partial victory, even before a decision is rendered: The court extracted a concession from FERC counsel that challengers could raise their issues in individual RTO proceedings if the court deferred its decision on the merits of the pending appeal.

Four distinct groups within the industry-the Edison Electric Institute (EEI), transmission owners, transmission-dependent utilities, and non-public utilities-have gone to the D.C. Circuit to challenge various aspects of Order 2000. Transmission owners (TOs) claim that their Section 205 filing rights are being taken away by FERC's insistence that the RTOs alone be the ones to file rates for transmission. The transmission-dependent utilities (TDUs) argue that the passive ownership rules will not ensure that RTOs are independent enough from the TOs to prevent discrimination. Utilities in the Pacific Northwest maintain that requiring the current Bonneville Power Administration system to become an RTO as envisioned by Order 2000 will cost much, much more than any possible benefit that might accrue to the region's customers.

Both in its brief and at the argument before the court, Oct. 17, FERC essentially argued that the complaints of various challengers are "far too nebulous at this juncture to warrant judicial review." . Instead, according to the FERC, challengers should use the individual RTO proceedings in which they are directly involved to advance their arguments against Order 2000.

To hear FERC tell it, all the "various challenges to Order No. 2000 are based entirely on potential concerns that they may suffer an injury as a result of future developments. As Petitioners merely anticipate that they may be injured, and do not claim, much less demonstrate, that they have been injured in a concrete, non-speculative, manner by Order No. 2000, their petitions must be dismissed." FERC