By Tom Kleckner
The Texas Public Utility Commission has won extra time to respond to NextEra Energy’s efforts to void a Texas law giving incumbent transmission companies the right of first refusal to build new transmission lines.
The 5th U.S. Circuit Court of Appeals in New Orleans on Friday granted the PUC’s request for a 14-day extension to file response briefs, giving the commission until April 22. NextEra will have seven days to file a reply brief (20-50160).
NextEra Energy Capital Holdings and four other NextEra transmission owner/developer entities appealed to the 5th Circuit after the U.S. District Court for the Western District of Texas in February refused their motion to overturn Texas Senate Bill 1938. (See District Court Dismisses Texas ROFR Repeal.)
On March 13, the district court also rejected NextEra’s request for an injunction delaying the court’s decision, saying NextEra is unlikely to prevail on appeal (1:19-cv-00626).
The Texas law grants certificates of convenience and necessity to the owners of a new transmission line’s endpoints, essentially allowing only incumbent transmission companies to build new power lines in the state.
“The court concludes that plaintiffs have failed to make a sufficient showing to warrant an injunction pending appeal,” District Judge Lee Yeakel wrote.
The judge said an injunction would substantially harm the PUCT, the defendants in NextEra’s lawsuit, because it would be unable to “plan and facilitate” new transmission projects.
At issue is NextEra Energy Transmission (NEET) Midwest’s ability to build the $115 million Hartburg-Sabine Junction transmission project in MISO’s East Texas footprint. NEET Midwest won the project’s rights in 2018 through a competitive bidding process. (See NextEra Wins Bid to Build MISO’s 2nd Competitive Project.)
NextEra has said it expects MISO to make a decision reassigning or canceling the project by March 31.
Southwestern Public Service and East Texas Electric Cooperative have both appealed to the 5th Circuit to have their rejected intervention requests overturned. The district court denied both requests when it rejected NextEra’s motion in February.
