United States Court of Appeals, District of Columbia Circuit
November 20, 2017
Petitions for Review of Orders of the Federal Energy
T. Gray argued the cause for the petitioner. Kathleen L.
Mazure was with him on brief.
R. Viswanathan, Attorney, Federal Energy Regulatory
Commission, argued the cause for the respondent. Robert H.
Solomon, Solicitor, and Susanna Y. Chu, Attorney, were with
him on brief. Lona T. Perry, Attorney, entered an appearance.
J. Ross argued the cause for the intervenors. Shaun M.
Boedicker, Michael F. McBride, William L. Massey, Mark L.
Perlis and Kevin F. King were with him on brief
Before: Henderson and Srinivasan, Circuit Judges, and
Ginsburg, Senior Circuit Judge.
LECRAFT HENDERSON, CIRCUIT JUDGE.
Kansas Corporation Commission (KCC), a Kansas regulatory body
that oversees Kansas public utilities, asserts that the
Federal Energy Regulatory Commission (FERC) acted unlawfully
by approving formula rates-which help determine the electric
rates charged by public utilities to consumers in FERC
jurisdictions-for future public utilities to use in operating
electric transmission facilities. KCC argues that FERC cannot
determine, as it must under the Federal Power Act, 16 U.S.C.
§§ 792 et seq., that the formula rates for
such not-yet-existing entities to implement at some point in
the future are "just and reasonable, " id.
§ 824d(a). By that same argument, however, KCC has not
suffered an injury in fact sufficient to establish standing.
A harm that will not occur unless a series of contingencies
occurs at some unknown future time is not concrete,
particularized, actual and imminent. Accordingly, we dismiss
KCC's petitions for review.
regulates the rates of public utilities engaged in the
wholesale transmission of electric energy in interstate
commerce. 16 U.S.C. § 824(a), (e). FERC must ensure,
under section 205 of the Federal Power Act, that public
utilities' rates are "just and reasonable."
Id. § 824d(a) ("All rates and charges
made, demanded, or received by any public utility for or in
connection with the transmission or sale of electric energy .
. . shall be just and reasonable, and any such rate or charge
that is not just and reasonable is hereby declared to be
unlawful."). To do so, "every public utility shall
file with" FERC, "[u]nder such rules and
regulations as [FERC] may prescribe . . . and in such form as
[FERC] may designate, " "schedules showing all
rates and charges for any transmission or sale" of
electricity. Id. § 824d(c). Section 206 of the
Federal Power Act allows FERC-on its own initiative or upon a
third-party complaint- to adjust previously-approved rates if
they are no longer just and reasonable. Id. §
824e(a) ("Whenever [FERC], after a hearing held upon its
own motion or upon complaint, shall find that any rate . . .
is unjust, unreasonable, unduly discriminatory or
preferential, [FERC] shall determine that just and reasonable
rate . . . and shall fix the same by order.").
encourages public utilities to participate in regional
processes that allocate the costs of new energy transmission
facilities on a region-wide basis. See S.C. Pub. Serv.
Auth. v. FERC, 762 F.3d 41, 49-53 (D.C. Cir. 2014)
(providing overview of electric industry). The Southwest
Power Pool (SPP) is a FERC-regulated Regional Transmission
Organization that currently provides electricity to parts of
fourteen states on behalf of member public utilities. The
SPP uses a selection process by which incumbent and
nonincumbent utilities bid for the right to develop
transmission projects within the SPP footprint.
recovers transmission rates on behalf of utilities operating
transmission facilities in the SPP's region through its
FERC-jurisdictional tariff. Part of the SPP's tariff is
the facility's formula rate. A formula rate
"specifies the cost components that form the basis of
the rates a utility charges its customers" in a
"fixed, predictable nature, " which allows
utilities to recover costs that "fluctuate over
time" and prevents them from using "excessive
discretion in determining the ultimate amounts charged to
customers." Pub. Utils. Comm'n of Cal. v.
FERC, 254 F.3d 250, 254 (D.C. Cir. 2001) (internal
quotation omitted). KCC's petitions involve two FERC
orders approving formula rates for future utilities that may
seek to develop transmission facilities in the SPP's
Energy, LLC is a parent company that "serves as the
holding company for transmission development-focused
subsidiaries" nationwide. Joint Appendix (JA) 25.
Transource Energy wanted to develop electric transmission
facilities in the SPP's regional footprint. Because of
statutory and regulatory differences about "public
utility governance and the issuance of securities" among
the various states in the SPP, Transource Energy wanted to
create state-specific subsidiaries which would then submit
state-specific bids for SPP facilities. JA 17. Transource
Energy formed Transource Kansas, a wholly owned subsidiary,
to compete for Kansas-based transmission projects. Transource
Energy also anticipates creating more state-specific
subsidiaries in SPP states (e.g., Transource
Arkansas) that will be "formally established as legal
entities at the time Transource Energy submits its bid to
develop a [transmission facility] within the corresponding
state in the SPP footprint." JA 25.
Kansas wanted to get a formula rate approved before it bid
for SPP transmission facilities. Without advance approval of
the formula rate, it would be unable to competitively bid for
two reasons. First, the SPP evaluates bids in part on a
transmission facility's charges, which are based in part
on the formula rate; without an approved formula rate,
Transource Kansas would be at a competitive disadvantage
compared with other facilities that did have approved formula
rates. Second, a utility has 180 days to bid for a
transmission facility but cannot obtain FERC ...