By Amanda Durish Cook
A group of MISO transmission owners has petitioned Supreme Court Justice Elena Kagan for more time to draft a petition asking the court to reinstate incumbents’ right of first refusal (ROFR) on RTO grid projects.
The TOs, including Ameren, Indianapolis Power and Light, Northern Indiana Public Service Co. and Otter Tail Power, want until Oct. 14 to complete their petition for a writ of certiorari. The TOs are seeking to overturn a Court of Appeals decision that denied the companies’ request to void FERC Order 1000’s provisions that introduced competition into transmission development (ER13-187, et al.).
In April, the 7th U.S. Circuit Court of Appeals rejected the TOs’ challenge, which contended FERC failed to apply the Mobile-Sierra doctrine, which presumes rates negotiated by private parties are reasonable (14‐2153). The group also claims FERC didn’t uncover any evidence that the previous Tariff provisions “seriously harm[ed] the public interest.”
Seventh Circuit Judge Richard Posner said the TOs failed to show that maintaining the ROFR was in the public interest. He also said it was expected for MISO members to take issue with the removal of the provision that opens them to third-party competition.
“No one likes to be competed against,” Posner wrote. “So naturally, members of MISO in areas in need of additional facilities oppose Order 1000. They want to retain their right of first refusal — they don’t want to have to bid down the prices at which they will build new facilities in order to remain competitive.”
In the same order, Posner also denied a request by transmission developer LS Power, which said ROFRs should be dropped for even baseline reliability projects (14‐2533, 15‐1316).
LS Power received an extension for its own certiorari petition on Aug. 19. The TOs say granting their request for more time will not hold up the proceedings, as LS Power’s extension is already in effect.
In June, FERC held a technical conference to consider suggested improvements to Order 1000. The comment period in the docket, originally slated to end Sept. 2, has been extended to Oct. 3 (AD16-18). (See FERC Calls for Post-Conference Comments on Order 1000.)
