A Federal Energy Regulatory Commission rule requiring PJM and other RTOs to pay demand response resources market clearing prices violates state ratemaking authority, a federal appeals court ruled today.

The Court of Appeals for the D.C. Circuit ruled 2-1 to void FERC Order 745, backing a challenge by the Electric Power Supply Association and others.

The commission’s 2011 order (RM10-17) required DR participating in the day-ahead and real-time energy markets to be paid locational marginal prices identical to those for generation. The order applied when DR was capable of balancing supply and demand and lowered the market-clearing price.

FERC said it had authority for the order under sections 205 and 206 of the Federal Power Act because reducing retail consumption through DR can aid reliability and lower wholesale prices.

The commission made a distinction between “price-responsive” DR, which it acknowledged was a retail product subject to state regulation, and DR response to incentive payments, which it called “wholesale demand response.”

Not a Wholesale Sale

Judges Janice Rogers Brown and Laurence H. Silberman disagreed. “A buyer is a buyer, but a reduction in consumption cannot be a `wholesale sale,’” they wrote in a 16-page opinion authored by Brown (11-1486). “FERC’s metaphysical distinction between price-responsive demand and incentive-based demand cannot solve its jurisdictional quandary.”

The commission “went far beyond removing barriers to demand response resources,” as Congress had ordered in the Energy Policy Act of 2005, the judges ruled.

In addition, the judges said, FERC’s reasoning had “no limiting principle,” agreeing with petitioners who said it would allow the commission to regulate the steel, fuel and labor markets because they also impact wholesale prices.

Windfall

Even if Order 745 did not encroach on state authority, it would have failed anyway because paying DR the LMP is not just and reasonable, the judges said, siding with Commissioner Philip Moeller, who dissented in the order. Moeller argued Order 745 overcompensates DR because it requires that it be paid the full LMP plus “be allowed to retain the savings associated with [the provider’s] avoided retail generation cost.”

The judges said this “potential windfall to demand response resources seems troubling, and the Commissioner’s concerns are certainly valid.”

Dissent

In a 28-page dissent, Judge Harry T. Edwards disagreed with the majority both on the jurisdictional question and on the propriety of paying DR at LMP.

Edwards said FERC deserved deference in its interpretation because the FPA is “ambiguous regarding whether forgone consumption constitutes a `sale’” and whether “a rule requiring administrators of wholesale markets to pay a specified level of compensation for such forgone consumption constitutes `direct regulation’ of retail sales” that would encroach on state jurisdiction.

Edwards noted that the compensation requirement built on the commission’s 2008 Order 719, which required that ISOs and RTOs accept bids from DR “unless not permitted by the laws or regulations of the relevant electric retail regulatory authority.”

Moreover, Order 745 was not the type of “direct regulation” of retail sales that would violate state prerogatives, Edwards said.

“All Order 745 says is that if a State’s laws permit demand response to be bid into electricity markets, and if a demand response resource affirmatively decides to participate in an ISO’s or RTO’s wholesale electricity market, and if that demand response resource would in a particular circumstance allow the ISO or RTO to balance wholesale supply and demand, and if paying that demand resource would be a net benefit to the system, then the ISO or RTO must pay that resource the LMP,” Edwards said. “That is it.”

Edwards also disagreed that upholding the order would leave FERC with unfettered authority, noting the restrictions the court had imposed in the California ISO case (372 F.3d 395), in which it ruled that FERC exceeded its jurisdiction in replacing the ISO board members on the theory that the composition of the board affected wholesale rates.

The court held that FERC’s authority was limited to matters “that directly affect the rate or are closely related to the rate, not all those remote things beyond the rate structure that might in some sense indirectly or ultimately do so.”

Edwards said requiring DR be paid the full LMP was reasonable to overcome barriers to entry.

Impact of Ruling

Before Order 745, ISOs and RTOs differed in the level of compensation paid to DR, with some underpaying demand resources in some circumstances, the commission ruled.

FERC’s response to the court’s rejection will be affected by the change in the composition of the commission since it issued the order. Order 745 was approved on a 4-1 vote that included two commissioners no longer on the panel: former Chairman Jon Wellinghoff, a strong proponent of DR, and Mark Spitzer.

Commissioner Tony Clark, who often sides with Moeller, replaced Spitzer, noted attorney Carolyn Elefant in a recent blog post.

Elefant said that an adverse ruling could affect FERC’s enforcement action against Lincoln Paper Co. for allegedly manipulating the ISO New England’s DR program. The Maine-based company filed a motion to dismiss in February that challenged the enforcement action on jurisdictional grounds.

Wellinghoff, now strategic counsel for the Advanced Energy Management Alliance (AEMA), said if the decision survives an appeal it will “lead to increased electricity costs for consumers by putting more money in the pockets of power generators.”

The alliance, a trade group for DR providers, noted a report by PJM’s Market Monitor that estimated DR saved consumers $11.8 billion in 2013.

Environmental groups also lamented the ruling. “As the U.S. advances into the clean energy economy, demand response should play an increasingly larger role in how our electricity is produced, delivered and consumed,” the Environmental Defense Fund said in a news release. “This order stymies that growth.”

If the jurisdictional ruling stands, “it could severely limit FERC’s ability to create a level playing field in wholesale markets and even planning for energy efficiency, demand response and other technologies,” said John Moore, senior attorney for the Natural Resources Defense Council’s Sustainable FERC Project.

“At a time when the transmission grid and our electric resource portfolio are changing rapidly — think more solar and wind power, rooftop solar, electric cars and two-way grid communications — the court’s decision could seriously constrain FERC’s ability to reform grid rules to accommodate these new dynamics, effectively cementing the agency into a 20th century approach to addressing 21st century challenges,” Moore said.

PJM Response

PJM noted that the ruling will not take effect immediately. The court told its clerk of the court to withhold issuance of the mandate on the order until seven days after disposition of any petitions for rehearing.

“Therefore, PJM hereby advises that it will continue to abide by the terms of its Tariff and Operating Agreement as relates to demand response in its markets,” the RTO said in a statement. “In other words, PJM will continue to operate business as usual.”

“At this point, it’s business as usual,” Andy Ott, executive vice president for markets said in a press conference today on capacity market results. If the order stands, he said, “FERC will have to [provide] some clarification on our Tariff.”