Old Dominion Elec. Coop. v. Fed. Energy Regulatory Comm'n , 892 F.3d 1223 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 24, 2017 Decided June 15, 2018
No. 16-1111
OLD DOMINION ELECTRIC COOPERATIVE,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
DUKE ENERGY CORPORATION, ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Adrienne Elizabeth Clair argued the cause for petitioner.
With her on the briefs was Dennis Lane.
Susanna Y. Chu, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were Robert H. Solomon, Solicitor, and Elizabeth E.
Rylander, Attorney.
Joseph W. Mayes was on the brief for intervenor-movant
Independent Market Monitor for PJM in support of respondent.
Before: TATEL, GRIFFITH and MILLETT, Circuit Judges.
2
MILLETT, Circuit Judge: The weather conditions giving
rise to this case may have been out of the ordinary, but the legal
principles controlling its resolution are decidedly routine. In
January 2014, a period of exceptionally cold temperatures,
commonly referred to as a “Polar Vortex,” descended on the
Eastern United States. As temperatures plunged, the demand
for electricity soared. In working to help meet that demand,
Old Dominion Electric Cooperative, an electricity generator
and provider, found that its operational costs outstripped the
amounts it could charge for electricity under the governing
tariff. Old Dominion then asked the Federal Energy
Regulatory Commission to waive provisions of the governing
tariff retroactively so that it could recover its costs. The
Commission declined on the ground that such retroactive
charges would violate the filed rate doctrine and the rule
against retroactive ratemaking. The Commission was right to
do so, and we accordingly deny Old Dominion’s petition for
review. We also deny the motion of the Independent Market
Monitor to intervene, but will accord it amicus curiae status.
I
A
The Federal Power Act charges the Commission with
ensuring that “[a]ll rates and charges made, demanded, or
received by any public utility for or in connection with the
transmission or sale of electric energy subject to the
jurisdiction of the Commission * * * shall be just and
reasonable.” 16 U.S.C. § 824d(a). To effectuate those goals,
regulated utilities must file with the Commission and keep
open for public inspection a schedule of the rates they intend to
charge ratepayers. Id. § 824d(c), (d). While the Act permits
regulated utilities to set their filed rate unilaterally and record
3
it in a tariff, see id. § 824d(c), the rates actually charged may
not exceed those on file with the Commission, Towns of
Concord, Norwood, and Wellesley Mass. v. FERC, 955 F.2d
67, 68 (D.C. Cir. 1992).
The Act also empowers the Commission to fix or change
rates and charges, but only prospectively. 16 U.S.C. § 824e(a).
When a utility wishes to alter the rates it charges, it must
provide sixty-days’ notice to the Commission and file new rate
schedules “stating plainly the change or changes to be made in
the schedule or schedules then in force and the time when the
change or changes will go into effect.” Id. § 824d(d). The
Commission may waive the sixty-day notice requirement for
good cause, but the Commission has no authority under the Act
to allow retroactive change in the rates charged to consumers.
See id.; Columbia Gas Transmission Corp. v. FERC, 895 F.2d
791, 795–796 (D.C. Cir. 1990) (Columbia III); see also
Consolidated Edison Co. v. FERC, 958 F.2d 429, 434 (D.C.
Cir. 1992).
Those rules mandating the open and transparent filing of
rates and broadly proscribing their retroactive adjustment are
known collectively as the “filed rate doctrine.” At bottom, that
doctrine means that “a regulated seller of [power]” is
prohibited “from collecting a rate other than the one filed with
the Commission,” and “the Commission itself” cannot
retroactively “impos[e] a rate increase for [power] already
sold.” Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 578
(1981).
In a similar vein, the rule against retroactive ratemaking
“prohibits the Commission from adjusting current rates to
make up for a utility’s over- or under-collection in prior
periods.” Towns of Concord, 955 F.2d at 71 n.2. That
otherwise categorical prohibition against retroactively
4
charging rates that differ from those that were on file during the
relevant time period yields in only two limited circumstances:
(i) when a court invalidates the set rate as unlawful, and (ii)
when the filed rate takes the form not of a number but of a
formula that varies as the incorporated factors change over
time. See West Deptford Energy, LLC v. FERC, 766 F.3d 10,
22–23 (D.C. Cir. 2014) (compiling cases). Neither of those
exceptions apply to this case. 1
B
PJM Interconnection, LLC (“PJM”) is a Regional
Transmission Organization and Independent System Operator
that exercises operational control over, but not ownership of,
the electrical transmission facilities belonging to its
participating members. See Midwest ISO Transmission
Owners v. FERC, 373 F.3d 1361, 1364 (D.C. Cir. 2004). The
Commission has tasked PJM, as a Regional Transmission
Organization, with supervising and coordinating the movement
of electricity throughout its market area, 18 C.F.R. § 35.34,
which comprises thirteen states and the District of Columbia,
see Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288,
1292–1293 (2016).
1 The latter exception for formulaic rates is not really an
exception at all. It just recognizes that sometimes a rate is set by a
predetermined and concrete formula rather than a pre-set number.
See, e.g., Public Utilities Comm’n v. FERC, 254 F.3d 250, 254 (D.C.
Cir. 2001) (explaining that, because the charged rate is subject to
change according to the formula’s fixed and predictable components,
fluctuations in the overall cost to consumers under a true formula rate
are not retroactive even though the ultimate charge to the customer
may be unknown at the time of purchase).
5
One way that electricity is transferred throughout the PJM
market is through competitive auctions. See Hughes, 136 S.
Ct. at 1293. In same-day auctions, generators bid to provide
the immediate delivery of electricity needed to slake sudden
spikes in demand. In next-day auctions, generators bid to
satisfy anticipated near-term demand. And in a “capacity
auction,” generators make bids that, if accepted, bind them to
providing needed electricity in the longer term. See id.
Old Dominion Electric Cooperative is a not-for-profit
electrical generation and transmission utility that participates
as both a generator and a load-serving entity (that is, a public
utility) in the PJM market. This case involves three of Old
Dominion’s natural-gas-fired electrical power plants in
Maryland and Virginia: Marsh Run, Louisa, and Rock Springs.
Each of those facilities is a “generation capacity resource,”
which means that Old Dominion contractually committed itself
to offer all of those units’ available generation capacity into
PJM’s daily market and to generate electricity whenever called
upon by PJM. Old Dominion Elec. Coop., 151 FERC ¶
61,207 at P 2 n.2 (2015).
PJM fulfills its oversight and market management
responsibilities through rules prescribed in (1) the PJM Open
Access Transmission Tariff and (2) the PJM Operating
Agreement, to which participating generators like Old
Dominion subscribe. Several provisions of those instruments
bear on the dispute in this case.
First, the Operating Agreement empowers PJM to take
“measures appropriate to alleviate an Emergency, in order to
preserve reliability” in the electricity market and to meet
consumer need. Agreement § 1.6.2(vii). That authority
includes directing generators “to start, shutdown, or change
[the] output levels of [their] generations units[.]” Agreement
6
§ 1.7.20(b). According to Old Dominion, generators
“understand[] PJM dispatch instructions to be determinations
with which [they are] expected to comply” under the PJM
Tariff § 1.8.2(a). J.A. 56 n.2.
Second, generation capacity resources “must offer”
capacity into the same-day and day-ahead auctions.
Agreement § 1.10.1A(d). That “must offer” requirement
commands generators to submit offers for all “available
capacity” of any designated capacity generation facilities.
Tariff § 1.10.1A(d).
Third, the Tariff caps the prices at which generators may
offer their capacity into the day-ahead market at
$1,000/megawatt-hour. Tariff § 1.10.1A(d)(viii).
Finally, Commission regulations require transmission
organizations, like PJM, to self-monitor their markets and
report any issues affecting their reliability, efficiency, and non-
discriminatory operation. 18 C.F.R. § 35.34(k)(6). PJM
retained a private company, Monitoring Analytics, LLC
(“Monitor”) to act as its independent market monitor. Monitor
has moved to intervene in this appeal.
C
In January 2014, a Polar Vortex brought extraordinarily
cold temperatures for an unusually prolonged period of time to
broad swaths of the continental United States, including the
PJM market region. The plunging temperatures triggered a
corresponding surge in the demand for electrical power to heat
homes and businesses. Increased demand for power generation
caused a regional spike in the price of natural gas, which is one
of the primary fuels that generators like Old Dominion use to
produce electricity.
7
Invoking market rules, PJM used its emergency authority
to make sure that the electrical service needed to meet
consumer demand was available and reliable. As part of those
actions, beginning in early January, PJM repeatedly called on
its generators to prepare for additional outputs of electricity.
As relevant here, PJM tasked Old Dominion with ensuring that
three of its generation capacity resources (Rock Springs,
Louisa, and Marsh Run) would be able to fulfill their
contractual commitments and run at full capacity during
several anticipated acute spikes in energy demand: January 7–
9, January 23, and January 28.
To meet that need, Old Dominion had to purchase natural
gas at inflated prices. In turn, Old Dominion’s marginal costs
to generate electricity spiked to approximately
$1,200/megawatt-hour. PJM Interconnection, LLC, 146 FERC
¶ 61,041 at P 2 (2014). But the Tariff prohibited it from
submitting bids for its electricity in the day-ahead auction that
exceeded $1,000/megawatt-hour. In other words, runaway
generation costs driven by extreme weather and market
conditions ran headlong into the PJM Tariff’s pre-set rate cap.
As a result, some generators, including Old Dominion, were
forced temporarily to sell energy capacity at a loss. See also
Duke Energy Corp. v. FERC, No. 16-1133 (D.C. Cir. June 15,
2018).
Old Dominion sought assurances from PJM that it would
be able to recover those losses. On January 21, 2014, PJM
posted a statement on its website that reiterated the generators’
contractual obligation to offer full capacity into the day-ahead
market at a price not to exceed $1,000/megawatt-hour,
notwithstanding the unanticipated circumstances. PJM also
expressed its intent to file with the Commission “as soon as
practical” a “retroactive waiver” of the rate cap to compensate
8
those generation capacity resources whose costs for electricity
generation had exceeded the Tariff’s rate cap. J.A. 137. PJM
further stated that it would file a second waiver request seeking
a temporary, prospective waiver of the rate cap provision.
Two days later, PJM filed two concurrent waiver requests
with the Commission. In one waiver, PJM requested
immediate “make whole” relief—to be effective the next day
(i.e., January 24, 2014)—that would allow generators to
recover the difference between the actual costs of generating
capacity and the Tariff’s rate cap for “must offer” bids
submitted in the price auctions for forthcoming electricity
generation.
The second waiver sought to stop the financial
hemorrhaging by waiving the filed Tariff’s rate cap “only
prospectively.” J.A. 140. With that waiver, generation
capacity resources that were contractually obligated to
continue providing electricity could submit bids into the same-
day and next-day auctions that exceeded the $1,000/megawatt-
hour rate cap. That waiver would apply going forward until
March 31, 2014.
Notably, and contrary to PJM’s January 21 website post,
neither waiver requested retroactive relief. The Commission
promptly granted both waivers. PJM Interconnection, LLC,
146 FERC ¶ 61,041, on reh’g, 149 FERC ¶ 61,059 (2014);
PJM Interconnection, LLC, 146 FERC ¶ 61,078 (2014), on
reh’g, 149 FERC ¶ 61,060 (2014).
As it turned out, PJM had overestimated the amount of
energy that would be required on several of the Polar Vortex’s
coldest days. To correct its mistake, PJM reduced or cancelled
some of its orders for generation services.
9
But that was too late to help the many generators that had
purchased the expensive natural gas needed to supply the
forecasted output and that had sunk start-up costs responding
to now-cancelled or curtailed orders. Old Dominion had to
resell some of its excess natural gas at a loss after the surge in
demand had subsided and the market price had dropped. And
it absorbed losses on the excess quantities it could not, or did
not, resell. More specifically, the Polar Vortex and PJM’s call
for generation capacity resources to meet the anticipated spike
in demand caused Old Dominion to incur losses in the form of:
(i) actual costs in excess of the $1,000/megawatt-hour rate that
pre-dated the January 24, 2014 waiver; (ii) start-up costs
arising from PJM’s cancelled requests for service; and (iii)
costs that arose when units dispatched to generate for a certain
period were instructed to cease operations earlier than
anticipated.
D
Old Dominion requested that the Commission provide
dual-faceted relief for its losses. First, Old Dominion sought
to have the effective date of PJM’s “make whole” waiver
extend back one additional day to cover losses it suffered on
January 23, the date PJM filed its waiver request with the
Commission. PJM Interconnection, LLC, 146 FERC ¶ 61,041
(2014). Second, Old Dominion requested a waiver of
provisions in the Tariff and PJM Agreement proscribing
retroactive rate charges so that it could recover the start-up
costs of its unused energy production that it incurred when PJM
cancelled or cut back on prior orders for service. Combined,
Old Dominion claimed nearly $15 million in costs attributable
to PJM’s emergency measures during the Polar Vortex.
The Commission denied Old Dominion’s request in all
respects. The Commission agreed with Old Dominion’s
10
concession that the filed Tariff precluded its requested
retroactive changes to the rates. The Commission also found
that Old Dominion’s ratepayers lacked sufficient notice that the
approved rate was subject to change. For those reasons, the
Commission concluded that Old Dominion’s waiver was
impermissible under the filed rate doctrine and the closely
related rule against retroactive ratemaking.
Old Dominion sought rehearing based entirely on grounds
of fairness and equity. Specifically, it argued that the
Commission has discretionary authority to “retroactively
waive a tariff in order to authorize ‘actions other than those
prescribed by the filed rate[]’” when “it concludes that the
‘tariff should not be applied under a particular out-of-the-
ordinary set of facts[.]’” Old Dominion Elec. Coop., 154 FERC
¶ 61,155 at P 11 (2016).
The Commission disagreed, explaining that Old
Dominion’s requested waiver constituted “a classic example of
a violation of the filed rate doctrine and the prohibition of
retroactive ratemaking.” Old Dominion Elec. Coop., 154
FERC ¶ 61,155 at P 9. The Commission also found that this
court’s precedent stripped it of any power to disregard on
equitable grounds either the filed rate doctrine or the rule
against retroactive ratemaking, no matter how compelling the
equities might be. Id. at P 17 (citing Columbia III, 895 F.2d at
797).
II
We review final orders of the Commission, 16 U.S.C.
§ 825l(b), under the Administrative Procedure Act’s familiar
“arbitrary and capricious” standard, 5 U.S.C. § 706(2)(A); see
FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760, 782
(2016). Under that standard, we defer to the Commission’s
11
reasonably explained decisions, Alcoa Inc. v. FERC, 564 F.3d
1342, 1347 (D.C. Cir. 2009), and to its interpretations of its
own precedent, NSTAR Elec. & Gas Corp. v. FERC, 481 F.3d
794, 799 (D.C. Cir. 2007). Those same principles apply with
equal force to our review of the Commission’s application of
the filed rate doctrine, which is “Chevron-like in nature.” Old
Dominion Elec. Coop. v. FERC, 518 F.3d 43, 48 (D.C. Cir.
2008) (internal quotation marks omitted). Put simply, we
afford the Commission’s interpretation of the filed Tariff and
the PJM Operating Agreement “substantial deference” unless
“the tariff language is unambiguous.” Id. (internal quotation
marks omitted).
A
The governing law is not in question here. The filed rate
doctrine and the rule against retroactive ratemaking leave the
Commission no discretion to waive the operation of a filed rate
or to retroactively change or adjust a rate for good cause or for
any other equitable considerations. Columbia III, 895 F.2d at
794–797. These corollary rules operate as a nearly
impenetrable shield for consumers, ensuring rate predictability
and preventing discriminatory or extortionate pricing. West
Deptford, 766 F.3d at 12; see Arkansas La., 453 U.S. at 578
(explaining that not even “the Commission itself” possesses the
authority to contravene the prospective application of rates).
Given those emphatic rules against retroactively changing
filed rates and the absence of any equitable waiver authority in
the Commission, the only question in this case is whether
granting Old Dominion the waiver it sought would have
violated one of those prohibitions. We agree with the
Commission that either waiver would have run afoul of both.
12
To begin with, there is no dispute that the PJM Tariff’s
filed rate did not allow the cost recovery that Old Dominion
seeks. In fact, Old Dominion repeatedly conceded before the
Commission and this court that the filed Tariff categorically
precluded its compensation for losses caused by the rate cap.
That would seem to be the end of the matter. But Old
Dominion argues that recouping its losses would be consistent
with the filed rate doctrine because ratepayers were on notice
that the Tariff set a market rate for electricity, and the Polar
Vortex altered that market rate.
Close, but no cigar. Old Dominion is correct that no
violation of the filed rate doctrine occurs when “buyers are on
adequate [advance] notice that resolution of some specific issue
may cause a later adjustment to the rate being collected at the
time of service.” Natural Gas Clearinghouse v. FERC, 965
F.2d 1066, 1075 (D.C. Cir. 1992). When the very terms of the
filed rate warn customers, at the time they contract for service,
that the price charged will fluctuate based on an identified
formula with specified cost drivers, then the rate is allowed to
change when fluctuations in those cost drivers occur. That,
after all, is how formulae work. And that comports with the
filed rate doctrine because the rate changes are foreordained,
not retroactive. See, e.g., Public Utilities Comm’n, 254 F.3d at
254 (explaining the well-established acceptability of formula
rates that specify the cost components that form the basis of the
rates a utility charges its customers); Transwestern Pipeline
Co. v. FERC, 897 F.2d 570, 578 (D.C. Cir. 1990) (“The
Commission need not confine rates to specific, absolute
numbers but may approve a tariff containing a rate ‘formula’
or a rate ‘rule’ * * *; it may not, however, simply announce
some formula and later reveal that the formula was to govern
from the date of announcement[.]”).
13
Old Dominion’s notice theory does not work in this case.
Old Dominion has failed to identify any Tariff provisions that
openly specify the type of market-variable cost components
required for formula rates. Cf. Public Utilities Comm’n, 254
F.3d at 255 (citing, as an example, rate increases caused by new
wage agreements where the utility agreed to a formula rate with
a labor cost component); West Deptford, 766 F.3d at 22
(ratepayers have notice that rates determined by filed formulas
will be determined according to the formula); NSTAR, 481 F.3d
at 801 (rates may constantly change as long the changes are
consistent with the formula on file with the Commission).
Plus, if there were such variables, then they presumably
would run in both directions. Yet tellingly, Old Dominion is
unable to cite a single instance in which bull market conditions
for utilities produced a refund to consumers of over-billed
amounts.
The coup de grace for Old Dominion’s theory is that the
filed rate on its face assured customers that, however the
market might change, charges would be capped at $1,000 per
megawatt-hour. Tariff, Attachment K, Appendix
§ 1.10.1A(d)(viii). Customers, in other words, were on explicit
notice that, although market forces might cause some variation
within a range, the rates charged would never exceed the
agreed-upon rate cap. Old Dominion points to nothing in the
Tariff’s terms that lifts that cap for the charges for which it
seeks recoupment. To toss that cap aside after the fact just
because it did exactly what a cap is supposed to do—serve as a
firm ceiling on market prices—would retroactively rewrite the
terms of the filed rate. The filed rate doctrine and rule against
retroactive rulemaking flatly forbid such a result.
Old Dominion argues alternatively that PJM’s January 21
statement on its website, noting that it was seeking FERC’s
14
approval for certain generators to exceed the rate-cap, gave
customers the required prospective notice that emergency
retroactive rate increases could ensue. That argument fails at
every step.
First, the website statement was not filed with the
Commission. That is required for all rate changes. 16 U.S.C.
§ 824d(d); see West Deptford, 766 F.3d at 23–24; see also City
of Piqua v. FERC, 610 F.2d 950, 954 (D.C. Cir. 1979). As a
result, the statement did not provide the legally required notice
to even first-line purchasers in the wholesale markets, such as
load-serving entities, let alone to the downstream retail
customers. See Columbia III, 895 F.2d at 797 (citing Columbia
Gas Trans. Corp. v. FERC, 831 F.2d 1135, 1140–1141 (D.C.
Cir. 1987), abrogated on other grounds by Transwestern, 897
F.2d at 579); cf. City of Piqua, 610 F.2d at 954–955 (approving
a seemingly retroactive rate because a pre-existing contractual
agreement provided ratepayers prospective notice of the
impending rate change from the date of the contract).
Second, the website post was limited to retroactive “make
whole” payments (which the actual waiver did not request), and
to prospective relief allowing generators to submit cost-based
offers into the day-ahead market above $1,000/megawatt-hour.
On top of that, the website post reiterated that, unless and until
the Commission granted the prospective waiver of the Tariff’s
rate cap provision, the market rules remained in effect—
including the $1,000 rate cap. To be sure, the Commission
ultimately waived the sixty-day statutory notice period and
granted PJM’s requested prospective relief effective January
24, 2014. That just confirms that the Commission stuck to its
prospective-only authority to adjust rates and that it left the past
rates as it found them.
15
For all of those reasons, we uphold the Commission’s
decision denying retroactive rate adjustments and deny Old
Dominion’s petition for review.
B
Turning to Monitor’s pending motion to intervene, we
hold that Monitor has no legally cognizable interest in this case,
and thus lacks standing. Accordingly, its motion to intervene
is denied.
Intervenors become full-blown parties to litigation, and so
all would-be intervenors must demonstrate Article III
standing. 2 See Fund for Animals, Inc. v. Norton, 322 F.3d 728,
732-733 (D.C. Cir. 2003). To do so, the prospective intervenor
must establish injury-in-fact to a legally protected interest,
causation, and redressability. See Crossroads Grassroots
Policy Strategies v. FEC, 788 F.3d 312, 316 (D.C. Cir. 2015).
This court also looks to the timeliness of the motion to
intervene and to whether the existing parties can be expected
to vindicate the would-be intervenor’s interests. See Deutsche
Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 192 (D.C. Cir.
2013). The Monitor, however, has failed to establish that the
2 The Supreme Court recently held that an intervenor of right
who seeks distinctive relief must demonstrate its own Article III
standing. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645,
1651 (2017). But that decision had no occasion to consider whether
all intervenors must do so. Town of Chester thus does not cast doubt
upon, let alone eviscerate, our settled precedent that all intervenors
must demonstrate Article III standing. Cf. Dellums v. United States
Nuclear Regulatory Comm’n, 863 F.2d 968, 987 n.11 (D.C. Cir.
1988) (intervening Supreme Court precedent must clearly dictate a
departure from circuit law before a subsequent panel is free to
discard an earlier panel’s holding).
16
litigation implicates any legally protected interest sufficient to
confer Article III standing.
The role of the Monitor is, as explained in the PJM
Agreement, to “objectively monitor, investigate, evaluate and
report on the PJM Markets, including, but not limited to,
structural, design or operational flaws” that the markets might
display. Monitor Br. A10–A11. 3 PJM retained the Monitor as
an outside consultant to undertake those market-monitoring
tasks. The Monitor is charged with “mak[ing] such
recommendations” to PJM “as [it] shall deem appropriate” to
“address design flaws, structural problems, compliance” and
other market anomalies that the Monitor detects. Monitor Br.
A4.
The Monitor’s role, however, is much in the nature of an
auditor—it is largely confined to observing the market’s
operations and then offering recommendations to PJM. The
Monitor has no authority to enforce or to interpret the PJM
Agreement or Tariff, to direct changes in the market’s
operations, to alter market rules, or to police individual
members’ compliance. Other than making some regulatory
filings, all the Monitor can do is inform the Commission,
authorized government agencies, or PJM’s participating
members if it disagrees with PJM’s implementation of the
market rules or operation of the PJM market. Beyond its
contractually assigned tasks, the Monitor has no independent
legal interest of its own in the PJM markets.
That is not enough for Article III. The Monitor’s
professional assignment to monitor the markets so that PJM
and its members can promote the market’s efficient and
3 We note that none of the relevant Agreement provisions,
namely Attachment M, are in the record for this court’s inspection.
17
successful operation does not invest the Monitor with any
legally cognizable rights concerning either how PJM addresses
Old Dominion’s application for retroactive relief or how Old
Dominion complies with the Tariff or Agreement. The
Monitor is not a contractual party to either the Tariff or the
Agreement, and it has no legal interests that are affected one
way or the other by any parties’ non-compliance. It is, instead,
an outside observer hired to study and report objectively on the
market’s operations.
The Monitor nonetheless asserts that its “responsibility to
monitor the markets” under the Agreement would be impaired
if Old Dominion prevails in this action. Monitor Br. A4. The
Monitor adds that it was a “core participant,” not just a “mere
observer,” in the Commission proceeding that led to the order
on review. Id. The Monitor further worries that, if the
Commission’s order were reversed, then the competitive
market design that the Monitor is “charged to protect” will need
“repair,” requiring the Monitor to “redeploy its limited
resources in an effort * * * to craft new rules that are harder to
undermine.” Monitor Br. A6.
We fail to see how this proceeding imperils any legally
protected interest of the Monitor. Whether Old Dominion wins
or loses, the Monitor’s ability to observe the market’s
operations and to make recommendations or to inform
potentially interested parties of its observations remains the
same.
Nor did the Commission’s order determine any legal rights
belonging to the Monitor or benefit the Monitor in any
discernable way. The Monitor thus has no “significant and
direct interest” in defending the Commission’s denial of Old
Dominion’s requested relief. Crossroads, 788 F.3d at 318.
The Monitor faces no “threatened loss” from this court’s
18
review, nor did it acquire any tangential benefit from the
Commission’s order. Cf. Fund for Animals, 322 F.3d at 733
(allowing Mongolian entity to intervene where Secretary of
Fish and Wildlife’s decision to not list argali sheep as
endangered indirectly benefitted Mongolian tourism and
conservation industries); Military Toxics Project v. EPA, 146
F.3d 948, 954 (D.C. Cir. 1998) (allowing manufacturers’
association to intervene on the side of the EPA because some
of its members indirectly benefitted from an EPA rule
regarding munitions).
The Monitor, for its part, identifies no law that vests it with
independent legal rights. The Monitor is not a creature of
statute and operates under no affirmative duty imposed by
public law. Quite the contrary, even its existence is a matter
entirely within PJM’s discretion. And its function is limited to
monitoring, advising, encouraging compliance, and informing
others through regulatory filings and other informal
communications, none of which are at stake in this case. Cf.
Sea-Land Serv., Inc. v. Department of Transp., 137 F.3d 640,
648 (D.C. Cir. 1998) (“[M]ere precedential effect within an
agency is not, alone, enough to create Article III standing, no
matter how foreseeable the future litigation.”).
Because it lacks any legally cognizable interest or right in
this proceeding, the Monitor lacks standing, and intervention is
denied. We will, however, grant the Monitor amicus curiae
status.
*****
For the foregoing reasons, we deny the petition for review
and the motion to intervene, but we will allow the Monitor to
participate as an amicus curiae.
19
So ordered.