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Ninth Circuit Reviews FERC Orders 872 and 872-A Regarding PURPA

On September 6, 2023, a partially divided panel of the US Court of Appeals for the Ninth Circuit granted in part and denied in part a Petition for Review brought by the Solar Energy Industries Association and other environmental organizations regarding Federal Energy Regulatory Commission (FERC) Orders 872 and 872-A (Order 872). Order 872 modified which facilities are considered eligible to be “Qualifying Facilities” (QFs) under the federal Public Utility Regulatory Policy Act (PURPA) and how those facilities are compensated. Under PURPA, QFs receive a special rate for selling their electricity back to the local electric utility and certain other related regulatory treatment.

The panel rejected Petitioners’ argument that Order 872 as a whole is inconsistent with PURPA and also rejected petitioners’ challenges to four specific provisions of Order 872. However, the panel also held that FERC violated the federal National Environmental Policy Act (NEPA) by failing to prepare an Environmental Assessment (EA) before issuing Order 872. The panel determined that the appropriate remedy was to remand the case to FERC without vacating Order 872.

The partially dissenting Judge would have held that the Petitioners lacked standing to seek review of Order 872 under NEPA. The Judge also presented a partially different view of certain administrative law issues.

The Court’s opinion may be found here:


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