By Rich Heidorn Jr.

The Federal Energy Regulatory Commission last week rejected LS Power’s request for rehearing on SPP’s Order 1000 procedures and accepted the RTO’s December compliance filing (ER13-366).

The transmission developer had challenged the commission’s October 2014 order allowing SPP to retain tariff provisions requiring consideration of state law and rights-of-way in the early stages of its competitive bidding process. The commission had made a similar finding in a ruling on PJM last May, reversing the directive it had originally given. (See Order 1000 Reversal: Reality Check or Surrender to Incumbents?)

FERC said LS Power’s challenge “seeks to expand the reach of Order No. 1000’s reforms by prohibiting SPP from recognizing state or local laws or regulations when deciding whether SPP will hold a competitive solicitation.”

The commission noted that while Order 1000 barred any federal right of first refusal for incumbent transmission owners in commission-jurisdictional tariffs, it did not require removal of references to state or local preferences.

While recognizing that FERC lacks jurisdiction to overrule state laws, Chairman Norman Bay issued a concurring statement that seemed to invite a constitutional challenge to state laws that prohibit nonincumbent developers from winning the right to build a transmission project.

“The Constitution limits the ability of states to erect barriers to interstate commerce. State laws that discriminate against interstate commerce — that protect or favor in-state enterprise at the expense of out-of-state competition — may run afoul of the dormant commerce clause,” wrote Bay, a former law school professor. “The commission’s order today does not determine the constitutionality of any particular state right-of-first-refusal law. That determination, if it is made, lies with a different forum, whether state or federal court.”

The commission also rejected LS Power’s challenge to SPP’s process for evaluating competitive bids, saying the RTO “has sufficiently demonstrated that the proposed weighting of its evaluation criteria is not unduly discriminatory and will result in a regional transmission planning process that selects more efficient or cost-effective transmission solutions.”

While it rejected LS Power’s rehearing bid, the commission said SPP’s rights-of-way provision is vague. It ordered the RTO to revise tariff language “that refers to ‘rights-of-way where facilities exist’ to make it consistent with the commission’s finding that retention, modification or transfer of rights-of-way remain subject to relevant law or regulation granting the rights-of-way.”

The commission said the revision would address a protest by South Central MCN, a competitive transmission company that plans to partner with electric cooperatives and municipal utilities in SPP. It denied South Central’s request to schedule a technical conference on RTO competitive bidding processes under Order 1000 as outside the scope of the SPP proceeding.