FERC on Monday declined rehearing requests of its inaction on PJM’s narrowed minimum offer price rule (MOPR) after a 2-2 tie vote, setting up further action in appellate court (ER21-2582).

The commissioner deadlock allowed PJM’s proposal to automatically take effect Sept. 29 “by operation of law.” The one-page notice from FERC on Monday said the rehearing requests “may be deemed to have been denied” in the absence of any action by the commission within 30 days of them being filed, indicating there has been no change in the stalemate.

Several PJM stakeholders, including the Electric Power Supply Association (EPSA) and the PJM Power Providers Group (P3), had filed requests. (See MOPR Rehearing Requests Set Stage for Appellate Review.)

The America’s Water Infrastructure Act, signed into law by President Donald Trump in October 2018, added a provision to FPA Section 205 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. Having filed its request Oct. 5, P3 petitioned the 3rd U.S. Circuit Court of Appeals earlier this month. (See P3 Seeks 3rd Circuit Review of PJM MOPR.)

Several parties have signed on to P3’s petition, including EPSA, Calpine, LS Power and Talen Energy. Vistra and Exelon also filed separate petitions for review, which have been consolidated with P3’s case. In a statement filed in the 3rd Circuit on Monday, the petitioners said they intend to raise the issue whether FERC’s order was “arbitrary, capricious or otherwise contrary to law.”

PJM’s narrowed MOPR is applied only to resources connected to the exercise of buyer-side market power or those receiving state subsidies conditioned on clearing the capacity auction.