Court keeps demand-response rule intact through Jan. 15 

Source: Hannah Northey, E&E reporter • Posted: Wednesday, December 17, 2014

A federal appeals court yesterday ruled that a controversial demand-response program can stay intact through Jan. 15 while the Obama administration seeks a Supreme Court review.

The U.S. Court of Appeals for the District of Columbia Circuit granted the Federal Energy Regulatory Commission’s request to extend the stay of a motion that would vacate Order 745, which directs demand-response providers such as factories or commercial buildings to receive full market prices when they curtail electricity use.

The Edison Electric Institute and other utilities had urged the court to reject FERC’s request and immediately vacate the order, arguing FERC could easily put the rule back in place if it is successful at the Supreme Court (Greenwire, Dec. 15).

David Morenoff, FERC’s general counsel, told the appeals court in a Dec. 8 filing that a stay of the mandate is warranted because the court already granted the commission a 90-day extension after presumably finding “substantial legal question and good cause.”

D.C. Circuit judges vacated the rule in May, but the White House is asking the federal appeals court to keep Order 745 in place until its appeal plays out at the high court.

Supreme Court justices typically give petitions submitted by the solicitor general a close review, but the odds of the court taking up the case are low. The Supreme Court receives thousands of petitions every year and grants fewer than 100. The court will likely consider the demand-response petition next spring.

The D.C. Circuit ruled that FERC far overstepped its authority under the Federal Power Act in issuing the order — a decision that was welcomed by EEI and the Electric Power Supply Association, groups that for years had argued the order went “too far” and trampled on states’ exclusive authority to regulate retail markets.