The 8th U.S. Circuit Court of Appeals on Sept. 16 denied review petitions by several SPP members over FERC’s rejection of generators’ rehearing requests seeking compensation under tariff Attachment Z2.
The court said it found “no error” in FERC’s 2022 decisions and rejected the petitions filed by EDF Renewables, Enel Green Power, NextEra Energy Resources and Southern Power (23-1520, et al.).
At issue is Attachment Z2 of the SPP tariff, under which transmission upgrade sponsors receive credits from any upgrade users whose service could not be provided “but for” the upgrade. The attachment also requires the RTO to invoice the charges monthly and to make any adjustments within one year. Because of software problems, it took SPP eight years to implement the attachment before 2016, during which the RTO did not invoice for the upgrade charges.
FERC found in four separate orders that SPP had violated the filed-rate doctrine, its tariff and its contracts with three of the four generators. However, the commission declined to grant a remedy, citing the one-year limitation on adjusting bills for customers. It also noted that SPP is a nonprofit entity with no independent funds to cover requested remedies.
The 8th Circuit concluded that although Attachment Z2 — and its requirement for upgrade credits — is part of the filed rate, FERC did not violate the filed-rate doctrine by not granting credits to the generators. The court said Attachment Z2 does not conflict with the billing requirements of the tariff and found that it “sets out the arrangement for sharing upgrade costs” but is silent on the timing of billing for upgrade charges.
“The commission thus had only one choice regarding [SPP’s] customers: adhere to [the tariff] and the filed-rate doctrine,” the court wrote.
The generators also contended that FERC failed to adequately explain whether its decision was based on a lack of authority or an exercise of equitable discretion, but the 8th Circuit disagreed, saying the commission “articulated a satisfactory explanation for its orders.”
And “in any event, any error in failing to explain would be harmless here, because the agency was required by law to decline the requested remedies, and a remand would be unnecessary,” it concluded.
A similar request by other SPP members was denied in 2023 by the D.C. Circuit Court of Appeals, which said it lacked jurisdiction to consider the utilities’ filed-rate doctrine argument because they failed to exhaust it at the rehearing stage. (See Appeals Court Denies Review of SPP Z2 Charges.)
