By Tom Kleckner
The D.C. Circuit Court of Appeals last week rejected rehearing requests from Missouri River Energy Services (MRES) following the court’s earlier determination that SPP could charge the utility for certain transmission fees (18-1166).
The court denied MRES’ request for rehearing by the panel that issued the March ruling or a rehearing en banc. The utility group had asked the court to review FERC’s 2017 order rejecting a request that MRES and other SPP members be exempted from congestion and marginal loss charges under a grandfathered contract signed before they joined the RTO. (See FERC Rejects ‘Carve-Out’ from SPP Congestion, Loss Charges.)
MRES, an organization of 61 municipal utilities in the upper Midwest, appealed the ruling, saying the court had committed multiple errors in its decision. It said the opinion “directly conflicts” with a 2007 decision by the court involving Wisconsin Public Power and FERC.
In that case, “FERC agreed with [MISO] that imposing significant changes in scheduling practices between parties to pre-existing agreements would amount to ‘significant changes’ … affect[ing] the bargain between the parties,’” MRES said in its appeal.
Quoting the 2007 panel, the organization said, “Not carving out this narrow class of [grandfathered agreements] would modify them, thereby triggering application of Mobile-Sierra’s public interest standard.”
In rejecting MRES’ original argument in March, the court said SPP “did not seek to impose congestion and marginal loss charges on the 1977 reservation until Missouri River subsequently came within the pool’s footprint.”
FERC in 2017 ruled that the SPP members were ineligible for “carve-out treatment” under the SPP Tariff and a 1977 transmission service contract between Nebraska Public Power District and Basin Electric Power Cooperative.
The 1977 contract arose from construction of NPPD transmission needed to deliver power to the Western Area Power Administration’s Upper Great Plains region and Lincoln Electric System from the Missouri Basin Power Project — a venture owned by six public power and cooperative utilities that includes the 1,710-MW Laramie River coal-fired generator, the Grayrocks Dam and reservoir, and more than 500 miles of extra-high-voltage transmission.
