CLF Files Merits Brief in U.S. Supreme Court in EPSA Case

Jerry Elmer

On July 16, 2015, CLF, together with several national environmental groups , filed an amicus curiæ brief in the United States Supreme Court in the currently pending EPSA case.  (The co-signers of the joint brief, along with CLF, were:  Sierra Club, Natural Resources Defense Council, and the Environmental Defense Fund.)

You can see a copy of our just-filed Supreme Court brief, here.

And you read background about the case, and about Demand Response (DR), which the EPSA case addresses, in my previous blog posts here and here.

DR provides many benefits to the electricity grid.  These benefits include system reliability, cost savings for ratepayers, and environmental benefits including reduced carbon emissions.

Our just-filed Supreme Court brief properly emphasizes the environmental benefits of DR; we are, after all, environmental organizations. In the brief, this discussion is in Section I, on pages 7-21.  More specifically, we discuss the environmental and public health benefits of DR in Section I B [pages 16-21].  We also discuss the beneficial rate impacts of DR in Section I A [pages 7-16].  I was especially pleased with this section, because it aligns the environmental groups, including CLF, with ratepayer advocates.

The joint brief of CLF and the other environmental organizations jibes well with other briefs that have been filed in the case.

You will recall that the D.C. Circuit Court decision that we are appealing ruled that the Federal Energy Regulatory Commission (FERC) lacks legal authority under the Federal Power Act (FPA) to regulate DR.  The Solicitor General of the United States, whose brief you can see here, emphasizes the fact that the FPA was specifically amended in 2005 (by the so-called EPAct of 2005), in which Congress declared that it is “the policy of the United States that barriers to demand response participation in energy, capacity, and ancillary service markets be eliminated” by FERC.  [Page 10, 35.]  That is, Congress directly instructed FERC to regulate DR in wholesale markets.  This fact alone should end the case.  (The same argument also appears in the CLF brief, in the subsections starting on pages 22 and 25.)

One of the major points that the D.C. Circuit Court got wrong in its earlier ruling was that it said that FERC, by regulating DR, was improperly usurping the power that belonged to the individual states, and that it was the states that had  sole authority to regulate DR.  If that were true, one would expect the states to come into the case to support the Circuit Court ruling.  But, in fact, the states have come into the case to oppose the Circuit Court’s ruling.  You can see the “Joint States’ Brief on the Merits” here.  In fact, the states come right out and say that if the Supreme Court does not reverse the Circuit Court ruling, the States will be seriously harmed because they are unable to regulate interstate, wholesale DR — only FERC can do that [pages 32, ff]; and DR is necessary for states to meet their environmental goals [page 36].

For me personally, it was both a pleasure and an honor to work together with Sierra Club, NRDC, and EDF on this joint brief.  The lawyers from the disparate groups worked extremely well together, and the brief we filed with the Supreme Court is a good piece of lawyering that we can all be proud of.

 

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