Courts Deliberate on the Fate of Order 2000: The transmission industry may have to wait even longer for a final decision on challenges to Order 2000 if FERC gets its way.
Jennifer Alvey is associate editor at Public Utilities Fortnightly.
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.