On October 25, the DC Circuit ruled that it lacked jurisdiction to take up a lawsuit brought against FERC for inaction on ISO-NE’s controversial capacity auction conducted in 2014. Public Citizen and Connecticut sued FERC after FERC deadlocked 2-2 on a vote over whether it should block or investigate the results of the ISO-NE annual forward capacity auction (FCA 8). The tie vote at FERC, with one Commissioner vacancy at the time, allowed the auction results to stand. In reviewing FERC’s inaction, the DC Circuit held, “In sum, we hold FERC’s deadlock does not constitute agency action, and the Notices describing the effects of the deadlock are not reviewable orders under the FPA.” The DC Circuit’s opinion suggests that the challengers should take their complaints to Congress: “Any unfairness associated with this outcome inheres in the very text of the FPA. Accordingly, it lies with Congress, not this Court, to provide the remedy.”
On October 25, TOTAL filed its opening brief in the Fifth Circuit in its declaratory judgment action against FERC. As it argued before the district court, TOTAL argues that FERC must go to federal court to prove its allegations of market manipulation under the Natural Gas Act (NGA). TOTAL claims that FERC cannot force respondents in such cases to defend themselves in an in-house agency proceeding before a FERC administrative law judge, subject only to deferential review in a federal appellate court. According to TOTAL, Section 24 of the NGA declares that federal district courts have “exclusive jurisdiction of violations” of the NGA and of “all” suits and actions to “enforce any liability or duty created by” the NGA.