Big Win for Clean Air and Clean Energy as D.C. Circuit Upholds FERC Order 841

(Washington, D.C. – July 10, 2020) The U.S. Court of Appeals for the D.C. Circuit today upheld a Federal Energy Regulatory Commission order that will help protect the climate, clean air and public health, and will have a vital impact on clean energy jobs for America’s future.

Opponents had argued that FERC’s Order 841 – an order that permits energy storage to compete fairly in wholesale power markets – interfered with states’ rights under the Federal Power Act. But a three-judge panel of the D.C. Circuit unanimously ruled that “[w]e find no foul here.”

“Today’s decision is a big step towards realizing cleaner, healthier air for all Americans and creating opportunities for more clean energy jobs,” said Michael Panfil, an attorney for EDF, which was a party to the case. “FERC’s order 841 creates an even playing field for energy storage to compete with traditional fossil fuel generators. It removes market barriers for energy storage and unlocks its enormous public health, environmental and cost-saving potential.”

FERC’s Order 841 was initially crafted under the Obama administration. It “remove[s] barriers to the participation of electric storage resources” in wholesale power markets. The order could catalyze energy storage deployment by up to 50 gigawatts, according to expert analysis. The order unlocks critical benefits from such deployment while carefully respecting longstanding state authority to craft climate, clean air and clean energy policy.

Opponents, including an association of traditional utility companies and NARUC, sued to block the rule. EDF intervened in the case in support of FERC’s order, along with NRDC and VoteSolar, who were both represented by EarthJustice.

A coalition of clean energy trade associations including the Energy Storage Association, the Solar Energy Industries Association, and the Advanced Energy Economy, also intervened in the case in support of FERC Order 841.

A coalition of state Attorneys General from Rhode Island, California, Massachusetts, Michigan and the District of Columbia filed amicus briefs in support of the order, as did a coalition of innovative tech companies including Sunrun, Tesla, Vivint Solar Developer, and ENGIE Storage Services.

The case was heard by Judges Rogers, Garland and Wilkins, who today unanimously upheld Order 841, saying:

“[FERC] specifically considered the benefits of enabling broad ESR participation to promoting just and reasonable wholesale rates. For example, [FERC] explained that promoting more participation of ESRs in wholesale markets increases competition, likely causing prices to lower, and more diversity in the types of ESRs encourages participation models that will be untethered to specific storage technologies … States remain equipped with every tool they possessed prior to Order No. 841 to manage their facilities and systems.”