By William Opalka

New England power generators are joining FirstEnergy’s effort to expand a court ruling that would prevent demand response providers from participating in capacity auctions.

The New England Power Generators Association asked the Federal Energy Regulatory Commission Nov. 14 to order ISO-NE to exclude such resources from the Forward Capacity Market (EL15-21).

In May, the D.C. Circuit Court of Appeals threw out the commission’s Order 745, which required RTOs and ISOs to pay demand response providers for energy at LMPs. The Electric Power Supply Association had sued FERC, claiming the commission exceeded its jurisdiction. FirstEnergy Solutions then filed a complaint with FERC, seeking to expand the challenge.

The D.C. Circuit granted a stay until Dec. 16 on its ruling in order to give U.S. Solicitor General Donald B. Verrilli Jr. time to file a petition on FERC’s behalf to send the case to the U.S. Supreme Court. (See EPSA Stay Complicates PJM’s 2015 Capacity Auction Plans.)

NEPGA, which represents 26,000 MW of generating capacity in New England, asked FERC to issue an order by Jan. 15, two weeks before ISO-NE is set to begin its next Forward Capacity Auction on Feb. 2. An order at that time would “ensure that clearing prices are not distorted by the participation of resources that cannot lawfully participate in that auction and that will be unable to fulfill their obligations if selected,” the NEPGA complaint states.

NEPGA also argues that the reasoning of the D.C. Circuit’s jurisdictional holding in the EPSA case — that FERC was erroneously attempting to regulate a retail product — was not limited to the energy markets. Demand response capacity resources must be excluded from participating as supply in capacity auctions because they can’t fulfill their energy must-offer obligations as required by ISO-NE’s Tariff, the complaint states.