Date Filed: Sept 7, 2022
Venue: U.S. Court of Appeals for the Third Circuit
Case: PJM Power Providers Group and Electric Power Supply Association v. FERC
Case Nos. 21-3068 & 21-3205 (consolidated with 21-3243, 22-1158)
Filers: Electric Power Supply Association, The PJM Power Providers Group
Summary: Petitioners EPSA and P3 in the appeals of PJM’s Focused MOPR FERC proceeding have filed a motion to strike the Respondent brief filed with the 3rd Circuit by FERC’s Solicitor as the brief does not represent the Commission as a body because the Commission did not vote on an order addressing the issues put forth in the brief. Rather, the purported Respondent’s brief reflects the views of two Commissioners as set out in a joint statement, which is not a majority here. The brief adopts and advocates legal and policy positions that have never received the support of a majority of Commissioners and thus the Court should strike it. The brief is simply not what it claims to be—it does not represent the views of the Commission, and the Solicitor should not be permitted to suggest otherwise in this proceeding. More, the misattribution of the Solicitor’s positions to the Commission would have substantial, adverse effects. In particular, it changes both the deference the Court owes to those arguments and the legal effects those arguments may have in this and future proceedings. The Court should remedy the prejudice to this litigation by striking the Solicitor’ Brief.