Summary
The D.C. Circuit reviews a Federal Energy Regulatory Commission order certifying a Montana solar facility as a 'small power production facility' under PURPA. Following remand from the Supreme Court in light of Loper Bright v. Raimondo, the court independently interprets the statute and holds that 'power production capacity' refers to the maximum net output of AC power delivered to the grid, which is capped at 80 MW for this facility. Consequently, the court denies the petitions for review and upholds FERC's certification.
Topics
Practice areas
Questions Presented
- Whether PURPA's phrase "power production capacity" refers to the maximum DC or total component capacity of Broadview's solar facility, or to the facility's maximum net AC output delivered to the electrical grid.
- Whether FERC's certification order should be upheld after the Supreme Court remanded the case for reconsideration in light of Loper Bright.
- Whether the court should disturb its prior rulings rejecting the petitioners' arbitrary-and-capricious challenges and dismissing SEIA for lack of Article III standing.
Holdings
- Under 16 U.S.C. § 796(17)(A), a small power production facility's "power production capacity" is best understood as the maximum amount of AC power that the entire facility can deliver to the electrical grid at any one time. Broadview therefore satisfies PURPA's 80-MW limit because its inverters cap its grid output at 80 MW.
- After Loper Bright, the court independently interpreted PURPA without Chevron deference and concluded that FERC's certification order was lawful.
- The court reinstated its prior holdings rejecting challenges to FERC's handling of form errors, treatment of the solar array and battery as one facility, and use of instantaneous net output, as well as its dismissal of SEIA for lack of Article III standing.
Key quotations
“we apply the statute without deference under Loper Bright and conclude that the maximum “power production capacity” of the “facility” is best read to refer to the amount of AC power that the facility can send out to the grid.” (at 4)
“we hold that a small power production facility’s “power production capacity” refers to its maximum net output of AC power to the electrical grid at any given point in time.” (at 9)
“For the foregoing reasons, we deny the petitions for review.” (at 18)
Factual background
Broadview's Montana solar facility includes a solar array capable of generating 160 MW of DC power, a battery capable of storing or discharging up to 50 MW of DC power, and inverters with a combined maximum output of 80 MW of AC power. Because the electrical grid accepts AC power, the facility cannot send more than 80 MW to the grid at any one time. FERC ultimately certified Broadview as a PURPA small power production facility, which would require NorthWestern Energy and other covered utilities to purchase its power.
Procedural history
FERC initially denied Broadview's certification application because its solar array had a nominal capacity of 160 MW, but granted rehearing and certified the facility after reinstating its longstanding approach of measuring net send-out capacity. The D.C. Circuit previously denied the petitions under Chevron and rejected related arbitrary-and-capricious challenges, while dismissing SEIA's petition for lack of standing. The Supreme Court vacated and remanded for reconsideration in light of Loper Bright. On remand, the court independently interpreted PURPA, affirmed the certification, reinstated the unaffected portions of its prior decision, and denied the petitions for review.