Amicus Curiae Brief — Edison Electric Institute, et al., Petitioners v. Federal Energy Regulatory Commission, et al.

No. 22-1246

In the Supreme Court of the United States

EDISON ELECTRIC INSTITUTE, ET AL.,

PETITIONERS,

v.

FEDERAL ENERGY REGULATORY COMMISSION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF AMICUS CURIAE

PACIFICORP D/B/A PACIFIC POWER AND

ROCKY MOUNTAIN POWER SUPPORTING

PETITIONERS

CHRISTOPHER R. JONES

ANTONIA M. DOUGLAS

TROUTMAN PEPPER

HAMILTON SANDERS LLP

401 9th Street, NW

Suite 1000

Washington, DC 20004

MISHA TSEYTLIN

Counsel of Record

KAITLIN L. O’DONNELL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.,

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amicus Curiae

QUESTIONS PRESENTED

1. Whether “power production capacity” refers to

a facility’s maximum net output to the grid at any one

time, or whether that term instead refers to the

maximum amount of power that a facility can create.

2. Whether the Court should reconsider how and

when Chevron should apply, or at least clarify that

courts must exhaust normal statutory-interpretation

tools before concluding that a statute is “ambiguous”

at Chevron step one.

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................................... i

TABLE OF AUTHORITIES ..................................... iii

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...........................................................3

ARGUMENT ...............................................................4

I.

FERC’s Interpretation Of The Phrase

“Power

Production

Capacity”

Is

Inconsistent With PURPA’s Clear Terms .......4

II. Whether Large Facilities May Enjoy The

Significant Benefits PURPA Confers Is

Such An Important Issue That This Court

Should Grant Review Even If It Does Not

Overturn Chevron Deference In Loper..........11

CONCLUSION ..........................................................17

iii

TABLE OF AUTHORITIES

Cases

Jones v. Hendrix,

143 S. Ct. 1857 (2023)........................................... 7

Loper Bright Enters., Inc. v. Raimondo,

No. 22-451 (U.S. May 1, 2023).............................. 5

Williams v. Taylor,

529 U.S. 362 (2000)........................................... 8, 9

Statutes And Rules

16 U.S.C. § 2601 ......................................................... 5

16 U.S.C. § 796 .................. 3, 4, 5, 6, 7, 8, 9, 10, 11, 12

16 U.S.C. § 824a-3 ...................................................... 6

26 U.S.C. § 48E .......................................................... 9

Public Utility Regulatory Policies Act of

1978, Pub. L. No. 95-617, 92 Stat. 3117

(1978) ..................................................................... 8

Regulations

18 C.F.R. § 292.204 .................................................... 4

iv

Other Authorities

Allison M. Kolberg, Comment, Bear Gulch

Solar, LLC v. Montana Public Service

Commission: State Commissions and

the Future of the PURPA Mandatory

Purchase Requirement, 44 Harv. Envtl.

L. Rev. 279 (2020) ..................................... 6, 11, 12

Black’s Law Dictionary (5th ed. 1979) ...................... 7

In re PacifiCorp, dba Pacific Power, Request

for a General Rate Revision, Or. Pub.

Util. Comm’n, Docket No. UE 374, Staff’s

Rebuttal Testimony and Exhibits of Scott

Gibbens (July 24, 2020) ...................................... 16

Nat’l Assoc. of Regul. Util. Comm’rs, Aligning

PURPA with the Modern Energy Landscape,

A Proposal to FERC (Oct. 11, 2018) ................... 11

Order No. 872,

172 FERC ¶ 61,041 (2020).................5, 6, 8, 12, 16

Order No. 872-A,

173 FERC ¶ 61,158 (2020).................................. 14

PacifiCorp, 2023 Integrated Resource Plan

Volume I (Mar. 31, 2023) ...................................... 2

Peter Maloney, PURPA’s Puzzle: FERC

Workshop Revisits 1978 Law, Embattled

as Ever, UtilityDive (July 28, 2016) ........ 5, 11, 12

v

Powering America: Reevaluating PURPA’s

Objective and Its Effects on Today’s

Consumers: Hearing Before the Subcomm.

on Energy of the H.R. Comm. on Energy &

Commerce, 115th Cong. 2 (2017) ....................... 12

Qualifying Facility Rates and Requirements;

Implementation Issues Under the Public

Utility Regulatory Policies Act of 1978, 84

Fed. Reg. 53246 (proposed Oct. 4, 2019) ............ 17

The American Heritage School Dictionary (1977) .... 7

The Oxford English Dictionary (2d ed. 1989) ........... 7

Webster’s New Twentieth Century Dictionary

of the English Language (2d ed. 1978) ................ 7

INTEREST OF AMICUS CURIAE1

Amicus Curiae PacifiCorp d/b/a Pacific Power and

Rocky Mountain Power is a public utility serving

customers in Washington, Oregon, California, Utah,

Idaho, and Wyoming. As particularly relevant here,

Amicus is required under the Public Utility

Regulatory Policies Act of 1978’s (“PURPA”)

mandatory purchase obligation to purchase power

from many qualifying facilities and regularly receives

requests from new qualifying facilities interested in

selling their output to Amicus. Amicus will be legally

required to purchase power from qualifying facilities

that meet the eligibility requirements, as interpreted

by the Federal Energy Regulatory Commission

(“FERC” or the “Commission”) and affirmed by the

U.S. Court of Appeals for the D.C. Circuit in the

opinion that is the subject of the Petition for a Writ of

Certiorari. Amicus has previously filed an amicus

brief supporting Petitioners. See Br. of Amicus

Curiae PacifiCorp d/b/a Pacific Power and Rocky

Mountain Power Supporting Petitioners Edison

Electric Institute and Northwestern Corporation,

Pursuant to this Court’s Rule 37.2, Amicus provided

timely notice to all parties of its intent to file this amicus brief.

Further, per this Court’s Rule 37.6, Amicus affirms that no

counsel for a party authored this brief in whole or in part, and

that no party, counsel for a party, or any person other than

Amicus, its members, or its counsel made a monetary

contribution intended to fund the preparation or submission of

this amicus brief.

1

2

Solar Energy Indus. Assoc. v. FERC, No. 21-1126

(D.C. Cir. Apr. 12, 2022).

Amicus is committed to integrating renewable

energy resources into the Nation’s electric grid at the

lowest reasonable cost for its customers. It has

championed the development of innovative energy

markets in the Western United States, in part to

support the greater integration of renewable energy

and decrease customer costs. As announced in its

latest integrated resource plan, Amicus anticipates

taking several more significant steps between now

and 2042 to support the Western United States’

growth toward a grid powered by clean energy,

including by adding 9,111 megawatts of new wind

resources and 7,855 megawatts of new solar

resources. PacifiCorp, 2023 Integrated Resource Plan

Volume I, at 2 (Mar. 31, 2023).2

Available

at

https://www.pacificorp.com/content

/dam/pcorp/documents/en/pacificorp/energy/integrated-resource

-plan/2023-irp/2023_IRP_Volume_I.pdf (all websites last visited

July 28, 2023).

2

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

The D.C. Circuit’s decision upholding FERC’s

reading of PURPA expands that statute’s mandatory

purchase obligation far beyond its plain terms,

allowing large, sophisticated electric generation

facilities to obtain a substantial benefit that Congress

never gave them, to the detriment of Amicus and its

customers.

Applying the Chevron deference

doctrine—the continued viability of which this Court

is currently considering—the D.C. Circuit deferred to

FERC’s conclusion that PURPA’s mandatory

purchase obligation applies to large generation

facilities, so long as those facilities artificially limit to

80 megawatts or less the amount of power that they

can send to the energy grid. That interpretation is

inconsistent with PURPA’s plain text, context, and

purpose. In limiting PURPA’s special privileges to

“small” generation facilities, see 16 U.S.C.

§ 796(17)(A), Congress provided that only a specific

subset of facilities benefit from the statute’s

mandatory purchase obligation: namely, small

facilities that Congress sought to exempt from having

to compete in the energy marketplace. Broadview

Solar (“Broadview”), which has a solar array capable

of generating 160 megawatts of power, is plainly not

entitled to, and does not require, this exemption.

If allowed to stand, the D.C. Circuit’s decision

upholding FERC’s ruling will cause immediate and

lasting harm to Amicus and its customers. Large

4

generation facilities like Broadview are not eligible

for, and do not need, PURPA’s special protections to

compete in the robust renewable energy market. By

allowing these facilities to exempt themselves

through gamesmanship from the competitive market

applicable to facilities with their actual size, FERC’s

ruling undermines competitive solicitations and

utility planning. Utilities like Amicus will incur

additional costs in interfacing with these large

facilities, which often participate in both the

competitive market and the qualifying facility queue.

Energy consumers too will suffer, as they are saddled

with the costs of mandatory purchases at abovemarket prices. This harms the Nation’s energy grid,

as FERC’s ruling incentivizes large and sophisticated

generation projects to prioritize their own interests

over the needs of consumers.

This Court should grant the Petition.

ARGUMENT

I.

FERC’s Interpretation Of The Phrase “Power

Production Capacity” Is Inconsistent With

PURPA’s Clear Terms

PURPA’s mandatory purchase obligation applies

only to “small” power production facilities capable of

generating 80 megawatts or less of power. 16 U.S.C.

§ 796(17)(A)(ii); 18 C.F.R. § 292.204(a). In concluding

that the phrase “power production capacity” is

ambiguous under Chevron step one and that FERC’s

5

approach was reasonable under Chevron step two, the

D.C. Circuit got the law wrong. This Court should

grant the Petition or, at minimum, hold the Petition

pending the outcome of Loper Bright Enterprises, Inc.

v. Raimondo, No. 22-451 (U.S. May 1, 2023). See

Pet.5.

1. Properly interpreted, the phrase “power

production capacity” refers to the maximum amount

of power that a qualifying facility can create. 16

U.S.C. § 796(17)(A).

Congress enacted PURPA in 1978 to incentivize

investment in renewable energy infrastructure. See

id. § 2601. At the time, the 1973 oil embargo and its

attendant energy security crisis were still fresh in

mind. See Peter Maloney, PURPA’s Puzzle: FERC

Workshop Revisits 1978 Law, Embattled as Ever,

UtilityDive (July 28, 2016).3 PURPA was a means of

“reduc[ing] the country’s dependence on oil and

natural gas,” Order No. 872, 172 FERC ¶ 61,041, at

P 47 (2020) (“Order 872”), by, among other things,

“improv[ing] the wholesale distribution of electric

energy,” 16 U.S.C. § 2601(2). To that end, PURPA

contains provisions “intended to spur the

development of small renewable power plants” and

diversify the nation’s energy grid. Maloney, supra;

Available at https://www.utilitydive.com/news/purpaspuzzle-ferc-workshop-revisits-1978-law-embattled-as-ever/423

005/.

3

6

see Allison M. Kolberg, Comment, Bear Gulch Solar,

LLC v. Montana Public Service Commission: State

Commissions and the Future of the PURPA

Mandatory Purchase Requirement, 44 Harv. Envtl. L.

Rev. 279, 283 & n.20 (2020) (PURPA aims to support

and increase the number of “alternative energy

producers at cogeneration and small power

production facilities”).

One of the most significant of PURPA’s

provisions, and the one at issue here, is Section 210’s

mandatory purchase obligation, which provides a

substantial market advantage for certain “small”

generation facilities with limited “power production

capacity.” 16 U.S.C. § 824a-3(a)(2). Section 210

imposes on publicly regulated utilities a legal duty to

purchase energy from these “small” facilities, or

“qualifying facilities,” at the utility’s avoided cost. Id.

§ 796(17)(A); id. § 824a-3(a)(2). The statute thus

gives qualifying facilities a guaranteed market for

their generation, thereby insulating them from

needing to compete in the marketplace. See id.

§ 824a-3(a)(2); Order No. 872 at PP 47–48 (2020). In

this way, qualifying facilities obtain a statutorily

conferred market advantage over their nonqualifying-facility competitors, so long as they satisfy

PURPA’s strict size requirements. Specifically, a

qualifying facility may not have a “power production

capacity” that is “greater than 80 megawatts.” 16

U.S.C. § 796(17)(A)(ii); Order No. 872 at PP 11–12

(“[W]hile PURPA provided for the encouragement of

small power production, PURPA also limited the

7

facilities which could be encouraged to those facilities

with no more than 80 [megawatt] power production

capacity at the same site.”).

The statutory text mandates the conclusion that

“power production capacity” refers to the maximum

amount of power that a generation facility can

generate. See Pet.13–20. As Petitioners explain,

“capacity” ordinarily means “the ability to produce;

equivalent to ‘full capacity,’” or “the maximum or

most efficient level of production.” Pet.15–16 (quoting

Capacity, The Oxford English Dictionary 857 (2d ed.

1989), and Capacity, The American Heritage School

Dictionary 135 (1977)). “[P]ower,” in turn, means “a

source or means of supplying energy.” Pet.15 (quoting

App.23a (Walker, J., dissenting)). And “production”

refers to that which is “made” or “generate[d].” Pet.14

(alteration in original) (quoting Production, Black’s

Law Dictionary 1089 (5th ed. 1979), and Produce,

Webster’s New Twentieth Century Dictionary of the

English Language 1436 (2d ed. 1978)). Put together,

these terms refer to the full, or maximum, amount of

power that a facility is able to generate or produce at

any given time. Pet.13–17.

The statutory context and purpose lead to the

same result. See Jones v. Hendrix, 143 S. Ct. 1857,

1869 (2023).

PURPA defines a “small power

production facility” as a facility that “produces electric

energy solely by the use” of a “primary energy source.”

16 U.S.C. § 796(17)(E) (emphasis added). The term

“produce” in this context refers to the energy that a

8

facility generates via an energy source, and thus

supports a determination that “power production

capacity” means the full amount of energy a facility is

capable of generating. Pet.17–18. Where Congress

wanted a different result, it used different terms; for

instance, in other sections of PURPA, Congress uses

the phrase “transmission capacity” to speak to a

facility’s ability to deliver or transmit power. Pet.18

(citing Pub. L. No. 95-617 §§ 202, 203, 92 Stat. 3117,

3135–38 (1978)). And any other definition risks

reading the word “small” out of the statute. 16 U.S.C.

§ 796(17)(E); Williams v. Taylor, 529 U.S. 362, 404

(2000) (it is “a cardinal principle of statutory

construction that we must give effect, if possible, to

every clause and word of a statute” (citation omitted));

see infra p.9. That result is at odds with Congress’

goal in enacting PURPA: to encourage investment in

small electric generation facilities and reduce the

barriers those facilities then faced when competing in

the open market. See Order No. 872 at P 11.

2. The alternative reading of “power production

capacity” that FERC adopted—“net output” or

“delivery capacity”—is contrary to PURPA’s terms

and undermines Congress’ purposes.

The D.C.

Circuit incorrectly held that the statute is reasonably

susceptible to this reading under Chevron step 2

(including because the Court should never have

advanced beyond Chevron step 1, given that plain

statutory text mandated Petitioners’ interpretation).

9

FERC’s misreading of the phrase “power

production capacity” violates PURPA’s plain text and

context. The statute provides that a qualifying

facility may not have a “power production capacity”

that is “greater than 80 megawatts,” 16 U.S.C.

§ 796(17)(A)(ii), and does not modify the term “power”

or seek to limit that term in any way. If Congress had

wanted to define a qualifying facility’s “power

production capacity” in terms of how much power the

facility actually sends to the grid—as opposed to how

much power it is capable of producing as a general

matter—it would have done so, as it has done in other

contexts. Pet.23 (noting Congress’ expanded tax

credit for “qualified facilities” defined as those “with a

maximum net output of less than 1 megawatt (as

measured in alternating current)” (quoting 26 U.S.C.

§ 48E(a)(2)(A)(ii))). Further, under FERC’s approach,

the “size” of a facility, 16 U.S.C. § 796(17)(A), no

longer matters: a facility of any size may qualify for

PURPA’s market benefits so long as the facility

artificially limits the amount of power it

instantaneously delivers to the grid. But Congress

clearly intended the word “small” to have some effect.

See Williams, 529 U.S. at 404 (every “word of a

statute” should be given effect (citation omitted)).

Indeed, PURPA requires purchases from both

“qualifying small power production facilities” and

“qualifying cogeneration facilities,” and qualifying

cogeneration facilities are not subject to the 80megawatt size limit. 16 U.S.C. § 796(17)–(18).

10

FERC’s effort to limit the term “power” in “power

production capacity” only to “grid-usable power,”

App.7a (emphasis added), makes little sense under

PURPA. FERC’s definition of “power production

capacity” is dependent not on the size of the

generation facility itself, but rather on the size of its

inverters, which convert the direct current energy

generated by a facility’s solar array to alternating

energy. But inverters do not “produce[ ]” power, see

App.7a, and are not by themselves capable of

providing any power to a utility. Rather, it is the

facility’s solar array that produces power by

harvesting solar energy. Because inverters do not

“produce[ ]” power, see App.7a, but rather take power

that has already been produced and convert it into

grid-usable power, it is wrong to tie a facility’s “power

production capacity” to the size of its inverters as

FERC and the D.C. Circuit did here. Indeed, it is

undisputed that large facilities like Broadview are

capable of “produc[ing]” significantly more “power”

(albeit direct current, rather than alternating

current, power) than they have chosen to deliver to

the grid at any one point in time. See Pet.17.

FERC’s approach also undermines PURPA’s

mandatory purchase obligation. That obligation

provides “small power production facilities,” 16 U.S.C.

§ 796(17)(A), a leg up in a market that was, at the

time, inhospitable to renewable energy development,

see Nat’l Assoc. of Regul. Util. Comm’rs, Aligning

PURPA with the Modern Energy Landscape, A

11

Proposal to FERC 2–4 (Oct. 11, 2018);4 Maloney,

supra; Kolberg, supra, at 283. In including a size

limit for small power production facilities, see 16

U.S.C. § 796(17), Congress provided that only those

facilities that lacked the production capacity to

compete successfully on the energy market benefit

from PURPA’s market protection. Oversized facilities

like Broadview that are capable of generating 160

megawatts of power do not require such a generous,

statutorily conferred market benefit, and allowing

such large facilities to partake in this benefit harms

the currently robust market for renewable energy, as

discussed below.

II. Whether Large Facilities May Enjoy The

Significant Benefits PURPA Confers Is Such An

Important Issue That This Court Should Grant

Review Even If It Does Not Overturn Chevron

Deference In Loper

The statutory issue here is important enough that

this Court should grant review regardless of how it

ultimately decides the question of the continued

vitality of Chevron deference in Loper. Reversal of

the D.C. Circuit’s erroneous decision is necessary to

ensure the integrity of the energy market and prevent

the harm to Amicus and its customers that results

when large generation facilities gain an unfair

Available

at

https://pubs.naruc.org/pub.cfm?id=

E265148B-C5CF-206F-514B-1575A998A847.

4

12

advantage over other developers under a PURPA

provision not designed for them.

Congress did not design PURPA to help large

facilities like Broadview gain unfair competitive

benefits in the energy market. When Congress

enacted PURPA’s mandatory purchase obligation in

1978, its goal was to foster a more diverse and robust

market for electric generation. Maloney, supra;

Kolberg, supra, at 283. Today, there is good reason

that PURPA still benefits only those “small” facilities

that Congress intended it to benefit, and not oversized

facilities like Broadview. 16 U.S.C. § 796(17)(A).

“[T]he outlook for the development of alternatives to

natural gas and oil-fired generation resources, such

as renewable resources, has changed . . .

dramatically” over the past several decades. Order

No. 872 at P 52 (citation omitted). Due to a host of

other legislative, regulatory, and market forces,

renewable resources have matured as components of

the resource mix and now account for a significant

portion of U.S. energy generation. See Powering

America: Reevaluating PURPA’s Objective and Its

Effects on Today’s Consumers: Hearing Before the

Subcomm. on Energy of the H.R. Comm. on Energy &

Commerce, 115th Cong. 2 (2017) (statement of Hon.

Fred Upton) (“[R]enewable sources of energy,

particularly wind and solar, have experienced

exponential growth in recent years. Last year alone,

capacity additions from utility scale renewable

resources surpassed the net additions of all other fuel

sources combined.”). Large, sophisticated renewable

13

facilities like Broadview—which consists of more than

470,000 solar panels capable of producing up to 160

megawatts of power as well as a 50-megawatt battery

energy storage system, Pet.7–8 (citing App.3a, 17a;

C.A. App. JA21–22, JA24, JA102)—will surely be part

of the nation’s energy future. But, under the extant

law, they should be selected in competitive

solicitations when purchasing utilities and their state

regulators deem the purchase in the best interest of

consumers, not because of a federal mandatory

purchase obligation that does not apply to them.

In Amicus’ experience, large generation facilities

like Broadview already participate successfully in the

competitive power market outside of PURPA, just as

Congress provided. Amicus is one of the largest

purchasers of independent competitive renewable

generation in the western United States, and

regularly enters into long-term contracts with

renewable projects to help meet its retail customers’

demands. Following a competitive solicitation issued

in 2017, Amicus acquired 1,150 megawatts of power

from new wind resources. (For general comparison,

an average-sized coal-fired plant would produce

roughly 500 megawatts.) Just a few years later, in

2020, Amicus issued a competitive solicitation for up

to 6,000 megawatts of power from various renewable

resources and received 55 bids for projects comprised

of solar and solar with battery energy storage

systems. Only 8 of those 55 facilities had a rated

capacity for the associated solar resource larger than

160 megawatts. In other words, most of these

14

facilities have a rated capacity below the maximum

amount of power Broadview can produce. Facilities of

roughly Broadview’s size (and smaller) compete

successfully in the marketplace; indeed, Amicus’ final

selection of bids included 1,302 megawatts of new

solar capacity, and 8 of the 10 bids that included solar

generation had a smaller rated capacity than 160

megawatts.

Yet, the D.C. Circuit’s decision allows large

generation facilities developed by sophisticated

parties such as Broadview to bypass—and thus

undermine—this

competitive

marketplace,

increasing costs for Amicus’ customers and imposing

potentially substantial burdens on the energy grid

and utilities like Amicus. Given the robust market for

renewable resources, qualifying facilities will often

participate in the competitive market and seek a

power purchase agreement pursuant to their

qualifying facility status, relying upon the qualifying

facility option as a backstop if the facility is not

selected in the competitive solicitation and can obtain

more favorable pricing under PURPA. Allowing large

facilities like Broadview to game the system in this

way imposes additional costs on utilities like Amicus,

which must then spend time and money engaging

with the facility on both fronts. By permitting FERC

to expand PURPA to allow large utility-scale projects

like Broadview to “masquerade as small power

production” facilities and thus bypass the competitive

market, Order No. 872-A, 173 FERC ¶ 61,158, at

P 245 (2020), the D.C. Circuit’s decision undermines

15

the market solicitations utilities like Amicus use to

obtain power at the lowest price for utility consumers.

Relatedly, the D.C. Circuit’s order also allows

oversized qualifying facilities to rely upon PURPA’s

mandatory purchase obligation to bypass and

undermine state utility planning processes,

compelling utilities to purchase power from large

qualifying facilities that their customers do not need.

Indeed, “[f]or those states that have competitive

solicitation requirements, the use of PURPA actually

encourages developers to evade competitive avenues

of resource selection if . . . a developer can simply

trump that process through a PURPA claim.” See

Nat’l Assoc. of Regul. Util. Comm’rs, supra, at 5. This

strategy, in turn, “renders the actual winning bidders

a mere stalking horse and will ultimately undermine

the integrity of the competitive solicitation.” Id.

By evading the competitive market and utility

planning processes, the long-term, fixed price, and

often above-market qualifying facility contracts that

Amicus will be forced to enter under FERC’s

misreading of PURPA will result in higher rates for

Amicus’ customers. Allowing large facilities like

Broadview to take advantage of PURPA’s mandatory

purchase obligation can impose additional costs on

publicly regulated utilities like Amicus, which costs

are necessarily passed on to energy consumers.

Amicus’ experience shows the potentially harmful

impacts of FERC’s expansion of PURPA to large

16

facilities like Broadview. Although the purchase

price for a qualifying facility contract is in theory

intended to reflect the purchasing utility’s avoided

cost, in practice long-term avoided cost estimates

have persistently exceeded the price of available

alternatives, thereby driving up consumer rates. See

Order No. 872 at P 55 (“[W]e further identified

evidence demonstrating that overestimations of

avoided cost have not been balanced by

underestimations, and that this trend may persist

with the general decline in the cost of electricity.”

(citation omitted)). Indeed, staff of the Public Utility

Commission of Oregon recently testified that

qualifying facility generation harms customers

“because cheaper power is available on the market or

via [utility]-owned generation.” In re PacifiCorp, dba

Pacific Power, Request for a General Rate Revision,

Or. Pub. Util. Comm’n, Docket No. UE 374, Staff’s

Rebuttal Testimony and Exhibits of Scott Gibbens

(Staff/2400, Gibbens/17) (July 24, 2020). 5 To take one

historical example, on August 1, 2014, a 10-year fixed

price contract at the Mid-Columbia wholesale power

market trading hub was priced at $45.87/MWh. Two

years later, on June 30, 2016, that same contract was

priced at $30.22/MWh. This constituted roughly a

34% decline in under two years. But Amicus was

nevertheless obligated to purchase 51.9 million

MWhs over a period of several years under its PURPA

5 Available at https://apps.puc.state.or.us/edockets/Docket

NoLayout.asp?DocketID=22279.

17

contract obligations at an average price of

$59.87/MWh. See Qualifying Facility Rates and

Requirements; Implementation Issues Under the

Public Utility Regulatory Policies Act of 1978, 84 Fed.

Reg. 53246, 53255 n.101 (proposed Oct. 4, 2019).

By permitting FERC to expand the types of

generation facilities that will qualify for PURPA’s

market protections beyond what the statutory text

provides, the D.C. Circuit’s decision also incentivizes

unnecessary and economically inefficient generation

projects. Because qualifying facilities are insulated

from the competitive market, they have little

incentive to site their locations competitively and can

instead build in locations that offer little value to the

energy grid.

Thus, with PURPA’s mandatory

purchase obligation to rely upon, a facility may site

its location in an area that already has sufficient

generation to serve load. Allowing oversized utilities

like Broadview to take advantage of PURPA’s market

purchase obligation, which Congress did not design

for them, risks distorting the energy market in ways

that Congress never envisioned or intended.

CONCLUSION

This Court should grant the Petition.

18

Respectfully submitted,

CHRISTOPHER R. JONES

ANTONIA M. DOUGLAS

TROUTMAN PEPPER

HAMILTON SANDERS LLP

401 9th Street, NW

Suite 1000

Washington, DC 20004

JULY 2023

MISHA TSEYTLIN

Counsel of Record

KAITLIN L. O’DONNELL

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.,

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amicus

Curiae