By Rich Heidorn Jr.

State consumer advocates asked the D.C. Circuit Court of Appeals on Friday to review FERC’s Dec. 19 order expanding PJM’s minimum offer price rule (MOPR) — despite the fact that the commission has not acted on numerous requests for rehearing.

FERC’s December order extended the MOPR to all new state-subsidized resources, saying it was needed to combat price suppression in the RTO’s capacity market (EL16-49, EL18-178). (See related story, PJM Stakeholders Get First Look at MOPR Floor Costs.)

As is standard practice, FERC issued a tolling order Feb. 18 giving itself more time to respond to the requests filed Jan. 21 for rehearing and clarification. (See PJM MOPR Rehearing Requests Pour into FERC.)

The advocates for New Jersey, Maryland, Delaware and D.C. asked the court to hold their petition for review in abeyance, acknowledging that it could be dismissed under the court’s “current precedent,” which holds that FERC’s rulings are not “final” orders ripe for judicial review while rehearing is pending.

The advocates said they filed the petition “out of an abundance caution” because of the pending en banc review in Allegheny Defense Project v. FERC over whether the Natural Gas Act authorizes FERC to issue tolling orders that extend the statutory 30-day period for commission action on rehearing requests (No. 17-1098).(See DC Circuit to Reconsider FERC Tolling Orders.)

The advocates said they feared that awaiting further commission action before seeking judicial review of the Dec. 19 order could deny them the right to do so. “For the reasons stated here, petitioners ask that the court hold this petition in abeyance until the issuance of a decision by this court in Allegheny Defense,” they wrote.

If the court decides FERC cannot issue such tolling orders under the NGA, the advocates said, “that determination would almost certainly mean that FERC cannot do so under the counterpart provision of the [Federal Power Act]. If such a determination were accorded retroactive application, then the [Feb. 18] tolling order would be a nullity, petitioners’ request for rehearing would be deemed to have been denied by operation of law on Feb. 20, 2020 (i.e., 30 days after the filing of the request for rehearing), and the 60-day time period for petitioners to seek judicial review of the Dec. 19 order would have begun on Feb. 21, 2020.”

Oral arguments in Allegheny Defense are scheduled for March 31, with a ruling expected this summer or early fall.

In a note to its clients Monday, ClearView Energy Partners said that the advocates’ “long shot” petition could spur FERC to act more quickly on rehearing, noting that the commission has yet to act on rehearing on its June 2018 order that found PJM’s capacity market unjust and unreasonable and led to the December order.

“A decision that changes the court’s interpretation of FERC’s tolling order authority this fall could potentially complicate the ability of PJM to hold auctions late in 2020 or early in 2021 as it currently plans, as these petitioners may then have grounds to seek an injunction pending appeal,” ClearView said.