On June 1, 2017, the United States Court of Appeals for the D.C. Circuit ("D.C. Circuit") dismissed LSP Transmission Holdings, LLC's and LS Power Transmission, LLC's (collectively, "LS Power") challenges to Southwest Power Pool, Inc.'s ("SPP") tariff revisions regarding the criteria SPP considers in its Order No. 1000 planning process to select developers for transmission projects identified for cost allocation through the Order No. 1000 planning process. In doing so, the D.C. Circuit held that LS Power lacked standing to challenge FERC's orders approving SPP's tariff revisions because LS Power has no active bids to build a transmission project, nor has LS Power had a bid rejected by SPP.
SPP adopted a two-stage process for new transmission projects that seek to benefit from regional cost allocation under the Order No. 1000 planning process. SPP proposed to first identify the most efficient and cost effective projects. SPP then would pick a developer for each project through competitive bidding. After FERC approved SPP's revisions, LS Power petitioned the D.C. Circuit for review of FERC's orders. LS Power argued that SPP's tariff revisions violate Order No. 1000 and FERC's statutory duties because: (1) some of SPP's criteria for evaluating developer bids are "duplicative or too attenuated from rates;" and (2) on the basis of state and local laws, SPP improperly excludes projects from the competitive bid process.
In its opinion, the D.C. Circuit dismissed LS Power's challenges, holding that LS Power lacked standing to challenge FERC's orders approving SPP's tariff revisions. The court noted that LS Power had suffered no injury-in-fact to demonstrate standing. With regard to LS Power's challenge to the SPP tariff evaluation criteria, the court noted that LS Power conceded that it has no active bids to develop an SPP project, nor has SPP rejected a bid by LS Power. With respect to LS Power's challenge to the state and local law exclusions, the court stated that LS Power has not identified a specific project that SPP has awarded to an incumbent utility exercising a right of first refusal under state law. Thus, the D.C. Circuit held that LS Power's alleged injury is only conjectural. The court further noted that LS Power could challenge SPP's tariff once it has a bid rejected by SPP and suffers a "concrete injury." Accordingly, the D.C. Circuit dismissed LS Power's petition.
A copy of the D.C. Circuit's opinion is available here.
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