DC Circuit Rules That FERC Deadlock is not Reviewable in ISO-NE Capacity Auction Lawsuit

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.”

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