Summary
The D.C. Circuit dismissed a petition for review of a Federal Energy Regulatory Commission order granting an abandonment incentive to a utility, holding that the petitioners lacked Article III standing due to a failure to demonstrate imminent injury. The court reasoned that any potential financial harm was highly attenuated and contingent on speculative future events, such as project abandonment and subsequent cost-recovery proceedings. A concurring opinion separately questioned the continuing vitality and utility of the prudential ripeness doctrine.
Topics
Practice areas
Questions Presented
- Whether petitioners had Article III standing to challenge FERC's stage-one approval of ITC Midwest's abandonment incentive.
- Whether the possibility of higher future rates, collateral-estoppel effects, or alleged deficiencies in FERC's evaluation of the incentive established an imminent injury in fact.
Holdings
- Petitioners lacked Article III standing because they failed to demonstrate a concrete, particularized, and actual or imminent injury resulting from FERC's stage-one incentive orders.
- The possibility that ITC might eventually recover additional abandoned-project costs through higher rates did not establish an imminent injury.
Key quotations
“To establish Article III standing, an injury must be ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” (at 6)
“A “highly attenuated chain of possibilities” predicated on “guesswork as to how independent decisionmakers will exercise their judgment” does not establish Article III standing.” (at 10)
Factual background
FERC granted ITC Midwest an abandonment incentive for the Iowa portion of a planned transmission project, allowing potential recovery of 100 percent of prudently incurred costs if the project were later abandoned for reasons beyond ITC's control. Petitioners, organizations representing electricity purchasers, argued that the incentive could lead to higher future rates and that ITC's ownership was uncertain because Iowa Right of First Refusal litigation was pending. The incentive constituted only the first stage of FERC's two-stage process; any future cost recovery would require a separate filing and a later prudence determination.
Procedural history
ITC Midwest requested an abandonment incentive for the Iowa portion of a planned transmission project. FERC granted the request at the eligibility stage and later denied petitioners' request for rehearing. Petitioners sought review of the incentive order, the rehearing denial, and the rehearing order in the D.C. Circuit.