Update on the EPSA Case in the U.S. Supreme Court

Jerry Elmer

On February 19, I posted a blog here about the pending EPSA case in the U. S. Supreme Court, which case addresses the use so-called “demand response” (DR) as a way of reducing the amount of electricity that is used, and thereby reducing both the cost of electricity to ratepayers and the carbon emissions caused by electricity generators.  I explained that CLF had filed an amicus curiæ brief in the Supreme Court, and my earlier blog contained links to CLF’s Supreme Court brief and to other documents in the case.

After that blog was posted, I received many questions about the case from legislators and others; so on February 20, I posted a second blog with answers to many of those questions.

Last week, another round of briefs was filed in the EPSA case, one of them by the Solicitor General of the United States, Donald B. Verrilli, Jr.  You can see Verrilli’s brief, here.  One interesting thing in Verrilli’s brief – that you rarely see in Supreme Court briefs, which tend to be a rather dour lot – is a bit of humor.  Note how on page 2 (paragraph 4, lines 6 to 8) Verrilli refers to “the entities that operate wholesale auction markets and set wholesale rates – in  FERC-speak, RTOs and ISOs.”

More substantively, Verrilli really makes an exceptionally convincing argument for the Supreme Court to grant certiorari – that is, agree to review the lower court’s ruling that said that FERC does not have legal jurisdiction (authority) to issue orders about DR.  (This blog posts assumes that the reader is both familiar with DR, and has read my prior two posts about this case.)

Starting at the bottom of page 9, and running through all of page 10, Verrilli regales the Supreme Court with the truly diverse set of entities appearing in the case as amici curiæ, all urging the Supreme Court to review the lower court ruling.  Note that Verrilli first mentions the Public Utilities Commissions (PUCs) of several states.  This is really important, because the other side in the case has been mistakenly portraying FERC’s contested action (in seeking to regulate DR) as an unwarranted grab by a rapacious federal agency of power that properly belongs to state PUCs – but here are those same (supposedly wronged) PUCs saying that FERC was absolutely correct, and the wholesale markets will suffer irreparable harm if the D.C. Circuit Court’s ruling is not reversed!

Next Verrilli shows that a great many utilities are supporting FERC, with those utilities warning “that the decision below will require [ratepayers] to pay for more to purchase electricity” and describing the shadow that the ruling casts on even the capacity markets.  (For background on what those capacity markets are, see this prior blog.)

Next Verrilli describes how the California ISO (referred to in the brief as “CAISO”), which had actually opposed the rule that FERC issued, weighed in saying that, in the main issue under review – whether FERC had legal jurisdiction to issue the rule that it did – FERC was right and the D.C. Circuit Court was wrong.  This is significant because, as I said, CAISO, while opposing the actual rule that FERC issued, unequivocally supported FERC’s legal right to issue the rule.

And, finally, in a swipe at EPSA (Electric Power Supply Association), the entity that had brought the lawsuit in the first place, Verrilli points out that NRG, one of EPSA’s largest members, actively opposes the EPSA position in the case, and is telling the Supreme Court that FERC was right and EPSA was wrong.

I think we can draw two conclusions from the Solicitor General’s just-filed Supreme Court brief.  First, Verrilli knocked it out of the park.  This is a truly excellent brief that represents Supreme Court advocacy at its best.  Second, the role of amici curiæ is – like CLF – is really important:  for reducing carbon emissions, for helping the environment, and for saving ratepayers literally billions of dollars.

The Justices of the Supreme Court are scheduled to decide on April 24 whether or not to hear the EPSA case, and the decision (either way) will be made public shortly thereafter.  Stay tuned for further details.

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