Summary
The D.C. Circuit reviewed the Federal Energy Regulatory Commission’s certification of the Broadview solar facility as a “small power production facility” under the Public Utility Regulatory Policies Act of 1978. Following the Supreme Court’s decision in Loper Bright, which eliminated Chevron deference, the court independently interpreted the statute’s 80-megawatt capacity limit. The court concluded that “power production capacity” refers to the facility’s maximum net output of alternating current power delivered to the grid, rather than its direct current generation capacity. Accordingly, the court affirmed FERC’s certification order and denied the petitions for review.
Topics
Practice areas
Questions Presented
- Whether PURPA's reference to a small power production facility with a power production capacity of no more than 80 MW refers to the facility's maximum net AC output to the electrical grid or to the capacity of the solar array and battery considered differently.
- Whether FERC's certification of Broadview as a qualifying small power production facility should be upheld under an independent judicial interpretation of PURPA after Loper Bright.
- Whether the Supreme Court's remand affected the court's prior holdings rejecting other arbitrary-and-capricious challenges and dismissing SEIA for lack of Article III standing.
Holdings
- Under 16 U.S.C. § 796(17)(A), a facility's 'power production capacity' means the maximum amount of AC power that the entire facility can deliver to the electrical grid at any one time, rather than the maximum DC generation capacity of an individual component or an aggregate including power stored in the battery.
- The Supreme Court's vacatur and remand for consideration in light of Loper Bright did not disturb prior holdings that were outside the scope of the Supreme Court's review, including the rejection of specified arbitrary-and-capricious challenges and the dismissal of SEIA for lack of standing.
Key quotations
“Taking a fresh look at the statutory text and context of 16 U.S.C. § 796(17)(A), 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)
“Because Broadview can send 80 megawatts to the grid while it simultaneously sends 50 megawatts to its battery before later sending those 50 megawatts to the grid, Broadview’s facility is capable of producing more than 80 megawatts of power — which makes Broadview too large to be a “small facility.”” (dissent at 13-14)
Factual background
Broadview's Montana solar facility includes a solar array capable of producing up to 160 MW of DC power, a battery capable of storing up to 50 MW of DC power, and inverters with a total net capacity 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 certified Broadview as a PURPA small power production facility by treating its power production capacity as its maximum net output, or send-out capacity, after accounting for all components.
Procedural history
FERC initially denied Broadview's certification application because its solar array had a 160 MW capacity, but on rehearing FERC reversed course and certified the facility based on its 80 MW maximum net AC output to the grid. The D.C. Circuit previously upheld FERC's interpretation under Chevron and rejected the petitioners' arbitrary-and-capricious challenges, while dismissing SEIA's petition for lack of standing. The Supreme Court vacated the prior judgment and remanded for further consideration in light of Loper Bright. On remand, the court independently interpreted PURPA, reinstated the portions of its prior decision not affected by the Supreme Court's remand, and denied the petitions for review.