The PJM Power Providers Group (P3) on Friday petitioned the 3rd U.S. Circuit Court of Appeals to review PJM’s narrowed minimum offer price rule (MOPR) after FERC deadlocked on issuing a decision on the RTO’s proposal.

PJM’s narrowed MOPR automatically took effect Sept. 29 because the commission’s four members were evenly divided over it. The rule now only applies to resources connected to the exercise of buyer-side market power or those receiving state subsidies conditioned on clearing the RTO’s capacity auction. (See FERC Deadlock Allows Revised PJM MOPR.)

The America’s Water Infrastructure Act, signed into law by President Donald Trump in October 2018, added a provision to Section 205 of the Federal Power Act to allow for judicial review if FERC fails to act on the merits of a rehearing request within 30 days because the commissioners are divided 2-2. P3 and other stakeholders had filed rehearing requests last month (ER21-2582).

P3 said the 3rd Circuit, based in Philadelphia, is the “most appropriate venue for judicial review” because of its proximity to PJM, based in Valley Forge, Pa. P3 also said the court has the “most direct experience” regarding FERC’s prior orders on the MOPR and its “interaction with state subsidies designed to promote preferred resources.”

The water act also required each commissioner to issue a statement explaining how they would have voted and why if the commission fails to act.

FERC Chair Glick and Commissioner Allison Clements, both Democrats, said the commission’s past decision on PJM’s expanded MOPR “created a Byzantine system of administrative pricing — unprecedented in both scope and complexity — that would have imposed on consumers billions of dollars in unjustified costs.” (See ‘Good Riddance’ to Old PJM MOPR, Glick Says.)

Republican Commissioners James Danly and Mark Christie opposed the proposal, with Danly calling it “irredeemably inconsistent” with the FPA.

The commission would be unable to order a rehearing if the 2-2 deadlock continues. D.C. Public Service Commission Chairman Willie Phillips’ nomination for FERC’s vacant fifth seat is pending before the full Senate for a final vote. (See Senate Energy Committee Advances Phillips.) Phillips may decide to recuse himself from the MOPR proceeding, however, because the D.C. PSC filed comments supporting PJM’s proposal.