Date: December 4, 2023
Venue: U.S. Court of Appeals for the Third Circuit
Case: No. 23-1778, et al.
Summary: The Joint Petitioners in this case – EPSA, PJM Power Providers Group (P3), NRG Business Marketing, and Constellation Energy Generation – submitted their reply brief answering the Respondent Brief filed by the Federal Energy Regulatory Commission’s (FERC) on November 13. In the reply, Petitioners clarify how and why the PJM capacity market recalculation allowed by FERC does represent a retroactive rate change violating the filed rate doctrine. Highlighting the two ways in which the retroactive change is unlawful, the brief explains how the action is like a football referee refusing to blow the final whistle when the clock runs out and unexpectedly announcing that a fifth quarter will take place – because that surprise fifth quarter hasn’t happened yet does not make it “prospective,” as the existing rules of the game have been flouted.
The consolidated appeals are before the Third Circuit Court (CA3) and seek review of FERC’s orders in the PJM LDA Revisions proceeding in which PJM proposed and FERC accepted revisions to the Reliability Requirement for a Locational Deliverability Area (LDA – DPL South) for the capacity auction held in December 2022 for the 2024/25 Delivery Year.