United States Court of Appeals, District of Columbia Circuit
February 13, 2017
Petitions for Review of Orders of the Federal Energy
Lawrence G. Acker argued the cause for petitioner Portland
General Electric Company. With him on the briefs was Gary D.
Lee Christensen argued the cause for petitioner PáTu
Wind Farm LLC. With him on the briefs were Peter J.
Richardson and Gregory M. Adams.
M. Fink was on the briefs for intervenors Northwest &
Intermountain Power Producers Coalition and Community
Renewable Energy Association in support of petitioner in case
Elizabeth E. Rylander, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief was Robert H. Solomon, Solicitor.
Lee Christensen, Peter J. Richardson, and Gregory M. Adams
were on the brief for intervenors PáTu Wind Farm, LLC
in support of respondent in case No. 15-1237.
Lawrence G. Acker and Gary D. Bachman were on the brief for
intervenor Portland General Electric Company in support of
Before: Tatel and Srinivasan, Circuit Judges, and Silberman,
Senior Circuit Judge.
a dispute between a small Oregon wind farm and the utility
serving Portland over how much of the former's power the
latter must purchase. The Federal Energy Regulatory
Commission ruled that under the Public Utility Regulatory
Policies Act and the power-purchase agreement between the
parties, the utility must purchase all of the wind farm's
power, though it rejected the wind farm's insistence that
the utility do so by utilizing a technology known as dynamic
scheduling. Both petition for review, and for the reasons set
forth in this opinion, we dismiss the utility's petition
for lack of jurisdiction and deny the wind farm's on the
centerpiece of these consolidated petitions is section 210 of
the Public Utility Regulatory Policies Act of 1978 (PURPA),
which Congress enacted in the wake of the 1973 energy crisis
in order to "encourage conservation and more efficient
use of scarce energy resources." FERC v.
Mississippi, 456 U.S. 742, 757 (1982); see
PURPA, Pub. L. No. 95-617 tit. II § 210, 92 Stat. 3117,
3144 (codified as amended at 16 U.S.C. § 824a-3). To
accomplish this objective, section 210 seeks "to reduce
reliance on fossil fuels" by increasing the number of
what are known as energy-efficient cogeneration and small
power-production facilities. American Paper Institute,
Inc. v. American Electric Power Service Corp., 461 U.S.
402, 417 (1983). Cogeneration facilities capture
otherwise-wasted heat and turn it into thermal energy; small
power-production facilities produce energy (fewer than 80
megawatts) primarily by using "biomass, waste, renewable
resources, geothermal resources, or any combination
thereof." 16 U.S.C. § 796(17)- (18). PURPA refers
to both as "qualifying facilities." This case
concerns a small power producer.
that various obstacles were frustrating the development of
such facilities, including the reluctance of traditional
utilities to buy their power, see Mississippi, 456
U.S. at 750 (describing "imped[iments to] the
development of nontraditional generating facilities"),
Congress enacted in section 210 a "self-contained
scheme" to mitigate those obstacles as well as to
stimulate markets for non-traditional power, Niagara
Mohawk Power Corp. v. FERC, 117 F.3d 1485, 1488 (D.C.
Cir. 1997). Subsection (a) of section 210 directs FERC to
promulgate broad, generally applicable rules that encourage
small power production by, among other things, requiring
utilities to sell power to and buy power from such facilities
at favorable rates, as detailed in subsections (b) through
(d). See PURPA § 210(a)-(d). Subsection (e)
authorizes FERC to ease the regulatory burdens on these
facilities by exempting them from the Federal Power Act, as
well as from certain federal and state regulations.
Id. § 210(e). Subsection (f), in turn, requires
state public-utility commissions to implement FERC's
rules at the local level. See id. § 210(f). And
subsections (g) and (h) establish a mechanism to enforce
PURPA rights, allocating distinct responsibilities to state
and federal forums. See id. §§ 210(g)-(h).
We shall have more to say about these provisions in Part II,
1980, FERC issued its first set of PURPA regulations, which
required utilities to buy energy from small power producers
"at a rate reflecting the cost that the purchasing
utility [could] avoid [by] obtaining energy . . . from [the
small power producer], rather than [by] generating an
equivalent amount of energy itself . . . ." Small
Power Production and Cogeneration Facilities; Regulations
Implementing Section 210 of the Public Utility Regulatory
Policies Act of 1978, 45 Fed. Reg. 12, 214, 12, 215
(1980) (codified at 18 C.F.R. Part 292). This so-called
avoided-cost rate usually exceeds the market price for
wholesale power. See, e.g., New Charleston Power
I, L.P. v. FERC, 56 F.3d 1430, 1433 (D.C. Cir. 1995)
(estimating $7 million-per-year difference between
avoided-cost and market rates for one particular biomass
facility). Under PURPA, state utility commissions are
responsible for calculating the avoided-cost rates for
utilities subject to their jurisdiction, which they may
"accomplish by . . . issu[ing] regulations, [by
addressing particular issues] on a case-by-case basis, or by
[taking] any other action designed to give effect to the
Commission's rules." 45 Fed. Reg. at 12, 216;
see PURPA § 210(b), (f), 16 U.S.C. §
implements its PURPA responsibilities largely through its
Public Utility Commission (OPUC), which, as relevant here,
has directed utilities subject to its jurisdiction to draft
off-the-shelf, standard-form power-purchase
agreements-replete with terms, conditions, and rate
schedules-that OPUC then reviews for compliance with PURPA.
See Oregon Public Utilities Commission Order No.
05-584, at 39-42 (May 13, 2005). OPUC has approved two
standard-form power-purchase agreements submitted by
petitioner Portland General Electric Co.: one for qualifying
facilities directly linked to the utility's grid and
another for "off system" facilities that must
transmit their power through a separate transmission system
to get to Portland's grid. See OPUC Order No.
07-065, at 1 (Feb. 27, 2007).
PáTu Wind Farm LLC, a six-turbine, nine-megawatt
generator in rural Oregon, is classified under PURPA as a
small power producer. Because PáTu is not directly
linked to Portland's grid, it sells power to Portland
under the OPUC-approved power-purchase agreement for
"off system" generators. In order to transmit its
power to Portland's grid, PáTu obtains
transmission services from two other entities: Wasco, a rural
electric cooperative, and Bonneville Power Administration, a
federal power agency. Wasco transmits PáTu's power