# Entergy Services, Inc. v. Federal Energy Regulatory Commission, Southern Company Services, Inc., Intervenors

> Court of Appeals for the D.C. Circuit · February 11, 2005 · 391 F.3d 1240

URL: https://www.frixlaw.com/law-library/cases/9843278

## Case

- **Full name:** ENTERGY SERVICES, INC., Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Southern Company Services, Inc., Et Al., Intervenors
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** February 11, 2005
- **Citations:** 391 F.3d 1240; 364 U.S. App. D.C. 33
- **Precedential status:** Published
- **Opinion:** Concurrence by Tatel
- **Judges:** Sentelle, Tatel, Roberts
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9843278

## How later opinions describe it (automated extraction)

- holding that petitioners do not have standing to challenge FERC's "At or Beyond” rule until "they are confronted with it in a matter before the Commission regarding a 'live' interconnection agreement”

## Opinion text

TATEL, Circuit Judge,
concurring in part and concurring in the judgment.
I agree with the court on the merits and join Parts I and II.B-D of its opinion. I also agree that we lack jurisdiction over the Entergy and Southern petitions, but I cannot join Part II.A because, in my view, the court’s approach “incorrectly con-flatefs] our case law on initial standing to bring suit with our case law on postcom-mencement mootness,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174 , 120 S.Ct. 693, 700-01 , 145 L.Ed.2d 610 (2000) (citations omitted).
. Two of the three petitions fail — unarguably, in my view — on standing grounds alone. Entergy filed its petition for review on June 24, 2002, ten days after FERC accepted ,the company’s proposed termination of its Interconnection Agreement (“IA”) with Amelia Energy Center. Southern filed its second petition for review on February 13, 2003, more than a month after the effective cancellation of its IA with Athens Development. Since neither IA remained in effect at the time the companies sought judicial review, precedent requires that we address jurisdiction as a question of standing, not mootness.
In Advanced Management Technology, Inc. v. FAA, 211 F.3d 633 (D.C.Cir.2000), we had to decide whether standing or mootness doctrine applied in a situation where the petitioner filed its challenge to the agency’s termination of a contract after the agency had re-awarded the contract to petitioner. “The claim may sound like one of mootness — a justiciable controversy existed but no longer remains — but the timing makes [petitioner’s] problem one of standing.... Standing is assessed ‘at the time the action commences,’ i.e., in this case, at the time [petitioner] sought relief from an Article III court.” Id. at 636 (quoting Laidlaw Envtl. Servs., 528 U.S. at 191 , 120 S.Ct. at 709-10 ) (internal citation omitted); see-also WorldCom, Inc. v. FCC, 308 F.3d 1, 10 (D.C.Cir.2002) (where petitioner lacked standing at the onset of its suit because the issue had lost “practical significance,” it could not argue that its situation was “capable of repetition yet evading review” since “that familiar exception to mootness cannot confer standing on a claim when injury in fact was missing at the outset”) (internal quotation marks omitted); City of Orrville v. FERC, 147 F.3d 979 , 985 n. 5 (D.C.Cir.1998) (“Because [petitioner’s] preliminary permit expired before it petitioned for review, ... its claims are properly disposed of on standing, rather than mootness, grounds.”). The court cites Northwest Pipeline Corp. v. FERC, 863 F.2d 73, 76 (D.C.Cir.1988), but in that case we applied a mootness analysis because petitioner filed for review in 1987 (as the docket number makes clear), well before “the challenged rate terms disappeared into the regulatory netherworld” in June 1988. See id.
Given this case law, I believe this court had no reason to consider whether mootness exceptions apply to the Entergy and second Southern petitions, as the two companies lacked standing in the first place. Once their IAs had terminated, neither qualified as a party “aggrieved by an order issued by the Commission” within the meaning of section 313(b) of the Federal Power Act, 16 U.S.C. § 8251 (b). “The requirement of aggrievement serves to dis *1253 tinguish a person with a direct stake in the outcome of a litigation from a person with a mere interest in the problem.” City of Orrville, 147 F.3d at 985 (quoting North Carolina Utils. Comm’n v. FERC, 653 F.2d 655 , 662 (D.C.Cir.1981)). After their IAs terminated, Entergy and Southern had only a “mere interest.” They thus lack standing to petition for review in this court.
Southern’s first petition for review presents a different, more complex situation. Southern filed that petition on November 1, 2002, almost three months before FERC accepted the termination of the company’s IA with Blount County Energy. “[A]t the time the action eommence[d],” Laidlaw Envtl. Servs., 528 U.S. at 191 , 120 S.Ct. at 709-10 , Southern therefore had standing to challenge FERC’s modification of the company’s IA, as well as the policies on which that order rested. With the cancellation of the IA, Southern’s specific challenge became moot, and (as the court notes) neither the “voluntary cessation” nor the “capable of repetition yet evading review” exception applies.
We thus need to determine whether a justiciable controversy remains due to Southern’s broader reason for objecting to the challenged order — namely, the company’s claim that the policies underlying that order require it to revise other IAs, revisions that will cost it some $22 million. This court faced a similar issue in Capitol Technical Services, Inc. v. FAA, 791 F.2d 964, 967 (D.C.Cir.1986), where petitioner, maintenance provider for foreign aircraft, sought an exemption from an FAA noise-control regulation so that it could fly two DC-8s to the United States for servicing. By the time we heard the petition, however, the time for servicing the two airplanes had passed. Id. at 965-66 . We held that although petitioner’s challenge to the FAA’s denial of an exemption for the specific planes had become moot, the “challenge to th[e] general policy is not moot” because “[cjlearly Capitol sought not only a particular exemption, but also a decision favorable to the continued viability of its business.” Id. at 968 ; see also City of Houston v. Dep’t of Hous. & Urban Dev., 24 F.3d 1421, 1428-30 (D.C.Cir.1994); Better Gov’t Ass’n v. Dep’t of State, 780 F.2d 86, 90-92 (D.C.Cir.1986). Significantly, we did not reevaluate whether Capitol had standing to petition for review on policy grounds. Had we done so under the court’s logic today, we would have concluded that Capitol lacked standing to pursue its policy challenge, since Capitol was in a “position identical to that of any other [maintenance provider] whose hypothetical future [requests for foreign aircraft exemptions] may be evaluated according to the rule,” see majority op. supra, at 1246 . Instead, we applied mootness doctrine to evaluate the justiciability of Capitol’s policy challenge and found “plainly meritless” the agency’s argument that “[i]f Capitol wishes to obtain exemptions for future flights by noncompliant foreign operators to its maintenance facilities ... it should reapply for exemptions and, if unsatisfied, seek review of those decisions.” 791 F.2d at 969 . Concluding that Capitol’s policy concerns remained alive, we went on to find its challenge ripe because the FAA’s policy was fit for review and Capitol would suffer hardship without immediate review. Id. at 969 & n. 26 (applying the ripeness test developed in Abbott Laboratories v. Gardner, 387 U.S. 136 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967)). As to fitness, we observed that the issues were “purely legal ... [and] there can be no question that the agency action has taken final form; indeed, the agency has not even suggested that any further policy evolution could be expected.” Id.
Disregarding Capitol Technical Services, the court today holds that once a *1254 petitioner’s specific challenge has become moot, we must go back and reevaluate the petitioner’s standing. In support, the court relies on City of Houston, 24 F.3d at 1429 -30 & n. 6, which stands for the proposition, established since at least City of Los Angeles v. Lyons, 461 U.S. 95 , 103 S.Ct. 1660 , 75 L.Ed.2d 675 (1983), that plaintiffs in civil suits must establish standing separately for each type of relief they seek- — declaratory relief, injunctive relief, damages, etc. By contrast, like the petitioner in Capitol Technical Services, Southern has filed a petition for review of an agency action and seeks the same relief on both specific and policy grounds: vaca-tur of FERC’s order based on a finding that the order was arbitrary and capricious. At the time Southern petitioned for review, it plainly had standing to seek this relief, and under Capitol Technical Services our jurisdiction over Southern’s policy challenge should turn on whether that challenge has also become moot or, alternatively, whether it is unripe for review.
As to mootness, we have typically applied the policy-challenge exception to mootness in situations where the specific requests became moot due to circumstances beyond petitioners’ control. See Capitol Technical Servs., Inc., 791 F.2d at 967-68 ; City of Houston, 24 F.3d at 1424, 1428-29 ; Better Gov’t Ass’n, 780 F.2d at 88, 90-92 . But Southern’s specific request became moot due to its voluntary decision to seek cancellation of its IA. I am thus unsure whether Southern’s policy challenge remains alive. In any event, I am convinced the challenge is unripe.
To begin with, this case differs from Capitol Technical Services in a significant respect. There, the FAA “ha[d] not even suggested that any further policy evolution could be expected.” 791 F.2d at 969 . At the time of Southern’s challenge, by contrast, FERC’s policy had not yet become final. Indeed, in later rulemaking orders, FERC revisited its “At or Beyond Test” (and particularly its explanations for the test). See Standardization of Generator Interconnection Agreements and Procedures, Order No. 2003, [Regs. Preambles] FERC Stats. & Regs. ¶ 31,146, 68 Fed. Reg. 49,846 (2003); on reh’g, Order No. 2003-A, [Regs. Preambles] FERC Stats. & Regs. ¶ 31,160, 69 Fed. Reg. 15,932 (2004). Absent a specific need for relief, it seems unfair to require FERC to defend its earlier, less complete explanation of its policy. Moreover, the “only hardship” Southern “will endure as a result of delaying consideration of this issue is the burden of having to file another suit.” See Webb v. Dep’t of Health & Human Servs., 696 F.2d 101, 107 (D.C.Cir.1982). Because this relatively minimal hardship does not outweigh the relatively strong interest in postponing judicial review, I would find Southern’s policy challenge unripe.
Over a quarter century ago, Justice Brennan warned that “Art. Ill jurisprudence ... in such areas as mootness and standing is creating an obstacle course of confusing standardless rules to be fathomed by courts and litigants.” Kremens v. Bartley, 431 U.S. 119, 140 , 97 S.Ct. 1709, 1720-21 , 52 L.Ed.2d 184 (1977) (Brennan, J., dissenting). The opinion in this case may add still more obstacles to the already littered course. Until today, where a petitioner sought review after the challenged order had ceased to aggrieve it, as with two of the petitions in this case, we evaluated the case under standing doctrine alone. Yet the court today addresses mootness even though “if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum.” See Laidlaw Envtl. Servs., 528 U.S. at 191 , 120 S.Ct. at 709-10 . Moreover, we have no reason to reevaluate a *1255 petitioner’s standing during the course of a proceeding, as we retain authority to weed out those cases that cease to present justi-ciable controversies by using the doctrines designed for that purpose — mootness and ripeness. The court’s midstream assessment of standing muddies this sensible framework. True, standing and mootness are closely related, but they are cousins, not twins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9843278. Public record. Not legal advice.