The D.C. Circuit Court of Appeals denied Kimball Wind’s petition to overturn a FERC decision rejecting the wind developer’s bid for $5.9 million in reimbursement from the Western Area Power Administration (WAPA) for contributing to a substation expansion in Nebraska. 

Specifically, Kimball filed its petition for reimbursement under Section 211A of the Federal Power Act. But to succeed on its petition, Kimball must show its reimbursement request would result in an order for transmission services, which the company failed to do, according to the June 13 ruling. 

“The key question before us is whether Section 211A authorizes the commission to issue an order directing WAPA to reimburse Kimball Wind for its contribution to the substation expansion,” Circuit Court Judge J. Michelle Childs wrote for the three-judge panel. “We agree with the commission that Kimball Wind does not seek an order for transmission services — the only type of order the commission may issue under Section 211A.” 

In 2016, Kimball entered into an agreement with the Municipal Energy Agency of Nebraska (MEAN) to upgrade an existing wind generation facility. To begin delivering the electricity, Kimball was required to connect to WAPA’s transmission network, according to the opinion. 

WAPA conducted studies on how to transmit Kimball’s electricity output safely and recommended an expansion of the substation. WAPA estimated the expansion would cost $6.5 million and offered to pay $2.2 million. However, MEAN refused to pay the rest, the opinion stated. 

Kimball’s power purchasing agreement with MEAN required it to deliver energy before the substation was completed. Facing this deadline, Kimball paid approximately $5.9 million and then petitioned FERC for reimbursement, according to Kimball’s petition for review. 

Kimball sought an order requiring either a cash payment from WAPA or a three-party rate-crediting agreement among WAPA, MEAN and Kimball.  

However, FERC found Kimball did not seek an order for transmission services as required for relief under 211A and that Kimball was not WAPA’s transmission service customer, according to the opinion. 

In affirming FERC’s order, the court said requiring WAPA to reimburse Kimball for the costs associated with the substation expansion does not constitute an order “to provide transmission services,” but rather a request to recover construction costs. 

“Kimball Wind acknowledges that the only relief it seeks is ‘the refund of [its] construction costs,”’ Judge Childs wrote in the opinion. “It does not seek a transmission services agreement with WAPA, and it is not currently a party to such an agreement. An order directing WAPA to reimburse Kimball Wind with a cash refund would neither require that WAPA provide transmission services to Kimball Wind nor modify the terms on which WAPA provides transmission services to any other party.” 

Similarly, Kimball’s bid for a three-party rate crediting agreement does not lead to an order for transmission services, the panel wrote. 

“On Kimball Wind’s petition, neither an order for a cash refund nor an order for a three-party rate-credit agreement would ‘require an unregulated transmitting utility to provide transmission services,”’ Judge Childs wrote. “The commission, therefore, correctly concluded that Kimball Wind seeks relief that Section 211A cannot provide.”