By Rich Heidorn Jr.

WASHINGTON — The Supreme Court on Monday upheld FERC’s jurisdiction over demand response, reversing the D.C. Circuit Court of Appeals in a 6-2 ruling.

“The [Federal Power Act] provides FERC with the authority to regulate wholesale market operators’ compensation of demand response bids,” wrote Justice Elena Kagan in an opinion joined by Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. (FERC v. Electric Power Supply Association, 14-840, 14-841).

The decision upheld FERC Order 745, which required grid operators to pay DR providers LMPs — equal to generation.

“This decision means that consumers will continue to see the significant benefits of demand response, which enhances competition in the markets, reduces wholesale prices and helps makes the grid more reliable,” FERC Chairman Norman Bay said in a statement.

The Electric Power Supply Association, which filed the lawsuit challenging Order 745, did not respond to requests for comment.

Justice Clarence Thomas joined Justice Antonin Scalia’s dissent. Justice Samuel Alito recused himself in the case, reportedly because he owns stock in Johnson Controls, parent company of DR provider EnergyConnect.

In May 2014, the D.C. Circuit vacated Order 745 in a 2-1 ruling, saying DR is a retail product and thus subject to state, not federal, jurisdiction. It also said FERC’s requirement that DR receive LMPs was “arbitrary and capricious.”

The Supreme Court majority disagreed on both counts.

Growing Importance

FERC sought Supreme Court review because of the growing importance of DR. While the D.C. Circuit ruling explicitly addressed only DR participation in wholesale energy markets, FERC said the ruling also threatened its participation in wholesale capacity markets.

That could have created an upheaval in markets such as PJM, where capacity auctions represent about 95% of total DR revenue. After some uncertainty, PJM decided to include DR in the 2018/19 Base Residual Auction last August.

PJM issued a statement saying it was pleased with the ruling. “Certainty and continuity are important in markets. Demand response brings value to competitive wholesale markets and is a vital component of electric system reliability.”

UBS Securities Monday reiterated its prediction that one-quarter of the DR that bid in to the PJM 2018/19 capacity auction as base product will leave the market when it transitions to 100% Capacity Performance for 2020/21, raising the price by about $14/MW-day.

Three-Part Analysis

Kagan broke the court’s analysis into three parts. “First, the practices at issue directly affect wholesale rates. Second, FERC has not regulated retail sales. Taken together, these conclusions establish that [Order 745] complies with the FPA’s plain terms. Third, the contrary view would conflict with the FPA’s core purposes.”

“The FPA has delegated to FERC the authority — and, indeed, the duty — to ensure that rules or practices ‘affecting’ wholesale rates are just and reasonable. To prevent the statute from assuming near-infinite breadth, this court adopts the D. C. Circuit’s common-sense construction limiting FERC’s ‘affecting’ jurisdiction to rules or practices that ‘directly affect the [wholesale] rate.’ That standard is easily met here. Wholesale demand response is all about reducing wholesale rates; so too the rules and practices that determine how those programs operate. That is particularly true here, as the formula for compensating demand response necessarily lowers wholesale electricity prices by displacing higher-priced generation bids.”

Not Retail

Kagan said Order 745 did not regulate retail electricity sales that are under state jurisdiction.

“A FERC regulation does not run afoul of [the FPA’s] proscription just because it affects the quantity or terms of retail sales. Transactions occurring on the wholesale market have natural consequences at the retail level, and so too, of necessity, will FERC’s regulation of those wholesale matters. That is of no legal consequence.

“When FERC regulates what takes place on the wholesale market, as part of carrying out its charge to improve how that market runs, then no matter the effect on retail rates, [the FPA] imposes no bar. Here, every aspect of FERC’s regulatory plan happens exclusively on the wholesale market and governs exclusively that market’s rules.”

The court said EPSA’s position would “subvert the FPA” and leave DR without any agency able to regulate it.

“EPSA’s arguments suggest that the entire practice of wholesale demand response falls outside what FERC can regulate, and EPSA concedes that states also lack that authority. But under the FPA, wholesale demand response programs could not go forward if no entity had jurisdiction to regulate them. That outcome would flout the FPA’s core purposes of protecting ‘against excessive prices’ and ensuring effective transmission of electric power.

“The FPA should not be read, against its clear terms, to halt a practice that so evidently enables FERC to fulfill its statutory duties of holding down prices and enhancing reliability in the wholesale energy market.”

LMP for DR also Upheld

The court also rejected complaints that FERC was overcompensating DR by requiring LMPs. “This court’s important but limited role is to ensure that FERC engaged in reasoned decision making — that it weighed competing views, selected a compensation formula with adequate support in the record and intelligibly explained the reasons for making that decision. Here, FERC provided a detailed explanation of its choice of LMP and responded at length to contrary views. FERC’s serious and careful discussion of the issue satisfies the arbitrary and capricious standard.”

Reaction

The ruling was celebrated by environmental groups, the White House and DR investors.

EnerNOC, the only publicly traded pure-play DR provider, saw its shares jump more than 70% on the news, rising from $4.09/share to close at $7.03/share.

Shares of independent power producers fell sharply, with Dynegy down 11.55%, NRG Energy off 9.5%, Calpine dropping almost 8% and Talen Energy losing 6%. Utilities in PJM also had a poor day, with Exelon (-3%), Public Service Enterprise Group (-2.2%), and American Electric Power (-1.33%) all showing losses, along with FirstEnergy (-1.4%), which had filed a FERC challenge seeking to bar DR from PJM capacity auctions following the D.C. Circuit ruling. The PJM Power Providers (P3) Group, whose members include Dynegy, Calpine and NRG, had no immediate comment.

“We are extremely proud of our involvement in this seminal case that ensures an important role for demand-side resources in our nation’s wholesale electricity markets,” EnerNOC CEO Tim Healy said in a statement. “Today’s decision is a tremendous win for all energy consumers, for the economy and for the environment.”

“This decision allows us to continue realizing billions in annual savings from innovative incentives and business models that ensure we use our electricity system efficiently,” said White House spokesman Frank Benenati, who called the ruling “good news for consumers, clean energy, reliability and the overall economy.”

“It’s going to make consumers an equal participant in the market in a way they never were before,” Jon Wellinghoff, who chaired FERC when it issued Order 745, told Greentech Media. “That was the intention of Order 745, and that has been vindicated.”

Also happy was the Environmental Defense Fund: “Today’s Supreme Court decision is a victory for all Americans who want greater choice and value broader customer access to clean, low-cost energy,” said President Fred Krupp. “Demand response is helping millions of Americans get low-cost, clean and reliable electricity. Today’s court ruling will help expand customer choice, and solidify demand response as a crucial part of our clean energy future.”

Exelon praised the ruling, saying DR is “a valuable tool for our customers to manage their energy costs, and we believe it should play a role in our nation’s energy mix.”

The libertarian Competitive Enterprise Institute was critical. “The Supreme Court sends a clear message by ruling in favor of FERC’s power demand rule: Energy politics are a game that ignores both the rule of law and states’ constitutional authority. The effects of this decision trickle down to each individual consumer,” said Myron Ebell, director of the institute’s Center for Energy and Environment.

NARUC: Coordination is Key

Travis Kavulla, president of the National Association of Regulatory Utility Commissioners, said the ruling’s holding that energy conservation measures can be valued in both a retail and wholesale context “may serve to blur the already fuzzy line between state and federal jurisdiction.”

Kavulla cited a 2010 NARUC resolution on the jurisdictional overlap, which said “the coordination of federal and state initiatives offers the best way to assure the full benefits of demand response are delivered to customers.”

Kagan noted that the “statutory division generates a steady flow of jurisdictional disputes because — in point of fact if not of law — the wholesale and retail markets in electricity are inextricably linked.”

Indeed, the court will deal with another jurisdictional dispute next month. It has scheduled oral arguments for Feb. 24 on two cases pitting New Jersey and Maryland regulators against FERC. The court will consider orders by the 3rd and 4th U.S. Circuit Courts of Appeals that upheld lower court rulings throwing out contracts in which generation developers won state-issued subsidies to build plants in the two states. (See SCOTUS Agrees to Hear Md., NJ-FERC Subsidy Case.)

Wide Margin of Victory

The margin of FERC’s victory was a bit of a surprise. At oral arguments in October, the court’s liberal wing indicated support for FERC’s jurisdiction, but the commission faced harsh questions from Roberts, Kennedy and Scalia. (See FERC Jurisdiction over DR in Peril as Supreme Court Splits.)

In his dissent, Scalia said the majority’s opinion “inverts the proper inquiry.”

“Paying someone not to conclude a [retail purchase of power] that otherwise would without a doubt have been concluded is most assuredly a regulation of that transaction,” he wrote.

“While the majority would find every sale of electric energy to be within FERC’s authority to regulate unless the transaction is demonstrably a retail sale, the statute actually excludes from FERC’s jurisdiction all sales of electric energy except those that are demonstrably sales at wholesale.”

Scalia said the FPA defined the “sale of electric energy at wholesale” as “a sale of electric energy to any person for resale.”

“No matter how many times the majority incants and italicizes the word ‘wholesale’ … nothing can change the fact that the vast majority of (and likely all) demand response participants — ‘[a]ggregators of multiple users of electricity, as well as large-scale individual users like factories or big-box stores’— do not resell electric energy; they consume it themselves. FERC’s own definition of demand response is aimed at energy consumers, not resellers.”

Suzanne Herel contributed to this article.