Nextera Energy Res., LLC v. Fed. Energy Regulatory Comm'n

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2018 Decided July 31, 2018
No. 17-1110
NEXTERA ENERGY RESOURCES, LLC, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
CPV POWER HOLDINGS, LP, ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
John N. Estes III argued the cause for petitioners. With
him on the briefs were John Lee Shepherd, Jr., Cara J. Lewis,
and Abraham Silverman.
Carol J. Banta, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. On the brief
were Robert H. Solomon, Solicitor, and Holly E. Cafer, Senior
Attorney.
2
Jason R. Marshall argued the cause for intervenors. With
him on the brief were Phyllis G. Kimmel, Larry F. Eisenstat,
Richard Lehfeldt, Clare E. Kindall, and Robert L. Marconi,
Assistant Attorneys General, Office of the Attorney General
for the State of Connecticut.
John N. Moore was on the brief for amicus curiae Natural
Resources Defense Council, et al. in support of respondent.
Before: WILKINS, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: A group of power
generation companies, utility holding companies, and power
distribution and sales companies petitions for review of four
Federal Energy Regulatory Commission (“FERC” or “the
Commission”) orders. ISO New England Inc. (“ISO-NE”), 147
FERC ¶ 61,173 (May 30, 2014), reh’g denied, 150 FERC
¶ 61,065 (Jan. 30, 2015); ISO-NE, 155 FERC ¶ 61,023 (Apr. 8,
2016), reh’g denied, 158 FERC ¶ 61,138 (Feb. 3, 2017). In the
orders under review, the Commission approved an exemption
to the minimum offer price rule in the ISO New England
forward capacity market for a limited amount of qualifying
renewable energy. The petitioners argue that the renewable
exemption creates unjust, unreasonable, and unduly
discriminatory rates in violation of the Federal Power Act and
that the Commission was arbitrary and capricious in violation
of the Administrative Procedure Act. The petitioners also
contend that the Commission erred by not setting a hearing on
disputed facts. We conclude that FERC engaged in reasoned
decision-making to find that the renewable exemption to the
minimum offer price rule results in a just and reasonable rate.
3
Likewise, FERC did not abuse its discretion by denying the
petitioners’ request for a hearing. Accordingly, we deny the
petition for review.
I. Background
This case concerns a petition for review of FERC orders
that carve out an exception to the minimum offer price rule for
certain qualifying renewable energy resources in the New
England energy market. The petitioners, NextEra Energy
Resources, LLC, NRG Power Marketing LLC, GenOn Energy
Management, LLC, Connecticut Jet Power LLC, Devon Power
LLC, Middletown Power LLC, Montville Power LLC,
Norwalk Power LLC, NRG Canal LLC, Energy Curtailment
Specialists, Inc., PSEG Power LLC, PSEG Energy Resources
& Trade LLC, and PSEG Power Connecticut LLC
(collectively, the “Generators”), are power generation
companies, utility holding companies, and power distribution
and sales companies that serve the six-state New England
energy market. The Federal Power Act establishes the
Commission’s authority to regulate wholesale electric rates,
such as those determined by the results of the energy markets.
16 U.S.C. §§ 824d-824e.
A. The New England Forward Capacity Market
Regional entities, called “independent system
operators” or ISOs, operate regional transmission services and
foster competition in the market by running auction markets for
energy. See New England Power Generators Ass’n v. FERC,
881 F.3d 202, 205-06 (D.C. Cir. 2018). ISO New England Inc.
is the system operator for the New England region.
ISO New England administers a forward capacity
market for the region. It conducts the forward capacity market
4
pursuant to rules set out in a jurisdictional tariff approved by
FERC. The features of ISO New England’s complex forward
capacity market have been the subject of multiple petitions for
review. See, e.g., Public Citizen, Inc. v. FERC, 839 F.3d 1165
(D.C. Cir. 2016); New England Power Generators Ass’n v.
FERC, 757 F.3d 283 (D.C. Cir. 2014) (“NEPGA”);
Connecticut Dep’t of Pub. Util. Control v. FERC, 569 F.3d 477
(D.C. Cir. 2009); Maine Pub. Utils. Comm’n v. FERC, 520
F.3d 464 (D.C. Cir. 2008) (per curiam), rev’d in part sub nom.
NRG Power Mktg., LLC v. Maine Pub. Utils. Comm’n, 558
U.S. 165 (2010).
In the forward capacity market, local utilities contract
with generators to buy quantities of energy three years ahead
of their energy needs. With three years’ notice, demand in the
forward capacity market is able to signal that a new entrant is
needed while there is still time to develop additional generation
capability.
ISO New England sets prices in the forward capacity
market by administering a forward capacity auction. First, ISO
New England determines the projected amount of capacity
(“Installed Capacity Requirement”) that the region will require
to operate reliably in three years. Next, ISO New England
holds a descending price auction, in which generators submit
offers to provide quantities of power at certain prices, three
years in the future. If the bid capacity at a given price exceeds
the Installed Capacity Requirement, ISO New England lowers
the auction price. As the auction price decreases, generators
offer less capacity to the auction or exit the auction altogether.
A “clearing price” is reached at the lowest price that yields
enough supply to meet the Installed Capacity Requirement set
by ISO New England. All generators that have successfully
bid in the auction are paid the clearing price for the capacity
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they provide, even if they submitted a bid lower than the
eventual clearing price.
The original ISO New England tariff used a “vertical”
demand curve, specifying a fixed demand that defined the
capacity sought by the auction. The clearing price was reached
at the lowest price that met the fixed demand.
In the orders under review, ISO New England
implemented a sloped demand curve. The sloped demand
curve establishes a downward trending relationship between
price and demand. Price is expressed in the chart as a multiple
of the net cost of new entry and demand is expressed as a
reserve margin. Using the sloped demand curve, if the offered
capacity price is decreased, it corresponds to an increased
demand. Rather than the New England region procuring
enough capacity to meet a fixed demand as under the vertical
demand curve, it procures enough capacity to meet the variable
demand that is set by the supply prices offered in the auction.
The clearing price is reached at the point of intersection of the
supply curve and the demand curve.
The system-wide sloped demand curve was
implemented beginning with the auction for the ninth capacity
year (2018-2019). At the time of this petition for review, ISO
New England had completed auctions through the eleventh
capacity year (2020-2021).
One of the rules in the ISO New England forward
capacity auction is the “minimum offer price rule.” The
minimum offer price rule mitigates the potential for the
improper exercise of market power that can occur if a
generation resource submits capacity to the auction at a below-
cost price, suppressing the clearing price. See NEPGA, 757
F.3d at 288-92. States and some utilities participate in the
6
market as both buyers and sellers of power, giving them the
opportunity to exercise this type of market power. For
example, a state-sponsored power generation resource could
submit a below-cost price offer to the auction, increasing the
supply of lower priced power, and lowering the clearing price.
Then, that state, as a net buyer of capacity, benefits by
purchasing capacity at the resulting artificially low price. The
minimum offer price rule mitigates this type of market power
by requiring new resources to submit capacity to the auction
above a minimum price floor. The minimum price floor is set
at the approximate net cost of entry of a new generation
resource.
The present petition for review concerns an exemption
to this rule that allows a limited amount of state-sponsored
renewable generation sources to submit price offers below the
minimum price floor.
B. Regulatory History and Orders Under Review
When the Commission initially approved the minimum
offer price rule in the ISO New England tariff, it rejected
proposed exemptions to that rule. ISO New England, Inc., 135
FERC ¶ 61,029 (Apr. 13, 2011) (“Buyer Market Power
Order”), reh’g denied in part, 138 FERC ¶ 61,027 (Jan. 19,
2012). In rejecting a categorical exemption to the minimum
offer price rule, the Commission reasoned that “uneconomic
entry can produce unjust and unreasonable prices by artificially
depressing capacity prices.” Buyer Market Power Order at
P 170. The Commission stated that the parties could return and
file a complaint to seek an exemption under section 206 of the
Federal Power Act. Id. at P 171. We upheld this order on
review. NEPGA, 757 F.3d 283.
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In 2012, intervenor New England States Committee on
Electricity, Inc. filed a complaint seeking an exemption to the
minimum offer price rule for certain state-sponsored renewable
resources. The proposed exemption was driven by the states’
goals to diversify their energy supply and promote the
development of renewable energy generation.
The Commission denied the New England States
Committee’s complaint. New England States Comm. on Elec.
v. ISO New England Inc., 142 FERC ¶ 61,108 (Feb. 12, 2013)
(“New England Complaint Order”), reh’g denied, 151 FERC
¶ 61,056 (Apr. 20, 2015). The Commission explained that the
New England States Committee did not provide any
evidentiary support that a renewable exemption would have a
limited price-suppression impact. New England Complaint
Order at P 34. Also, the Commission distinguished the New
England States Committee’s request for an exemption from one
that it approved in the mid-Atlantic market under the PJM
system operator. Id. at P 35. The Commission explained that
“because [the ISO New England] capacity market relies on a
vertical demand curve while PJM’s capacity market relies on a
sloped demand curve,” a renewable exemption would have a
larger price impact in the ISO New England system. Id.
On April 1, 2014, ISO New England filed a package of
reforms to its tariff under section 205 of the Federal Power Act.
ISO-NE, Docket No. ER14-1639-000, ISO New England Inc.
Tariff Filing (Apr. 1, 2014) (“ISO-NE Tariff”). The reforms
implemented a new system-wide sloped demand curve to
replace the vertical curves and included a plan for developing
local sloped demand curves in the future. In the reformed tariff,
ISO New England included a limited renewable exemption to
the minimum offer price rule.
8
The reformed tariff allows up to 200 megawatts of
qualifying new entrant renewable capacity to be exempt from
the minimum offer price rule beginning with the ninth capacity
year auction. ISO-NE Tariff, pp. 129-30, 143-44. The tariff
also included a carry-over rule, allowing any unused portion of
the 200 megawatt renewable capacity to carry forward for two
additional auctions (three years), up to a total cap of 600
megawatts. Id.
The Generators protested the renewable exemption,
arguing that it was unjust and unreasonable because it will
undermine competitive entry and result in significant price
suppression. On May 30, 2014, FERC approved ISO New
England’s reformed tariff. ISO-NE, 147 FERC ¶ 61,173 (May
30, 2014) (“Initial Order”). In approving the reformed tariff,
FERC rejected the Generators’ arguments regarding the
renewable exemption. Although FERC recognized that
“exemptions in general can lower prices, the exemption
proposed here is coupled with a sloped demand curve that will
limit the impact of price suppression as compared to the
existing vertical demand curve.” Id. at P 83. FERC also
explained that “[t]he renewable resource exemption is also tied
to load growth . . . , so entry of renewable resources will, in
most cases, only displace the new entry required to meet load
growth.” Id.
On June 30, 2014, the Generators requested a rehearing
on FERC’s approval of the renewable exemption in the ISO
New England tariff. The Commission denied the Generators’
request for rehearing on January 30, 2015. ISO-NE, 150 FERC
¶ 61,065 (Jan. 30, 2015) (“Rehearing Order”).
On March 30, 2015, the Generators filed a petition for
review in this Court. After FERC sought a voluntary remand
to permit additional consideration of certain arguments, this
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Court granted the request for remand on December 1, 2015.
NextEra Energy Res., LLC v. FERC, No. 15-1070 (D.C. Cir.
2015).
On remand, the Commission directed ISO New
England to revise its tariff to “provide for the inclusion of zonal
sloped demand curves in its [Forward Capacity Market] rules,
to be implemented beginning with the eleventh Forward
Capacity Auction.” ISO-NE, 153 FERC ¶ 61,338 at P 1 (Dec.
28, 2015). Then, FERC reaffirmed the renewable exemption
over the Generators’ objections. ISO-NE, 155 FERC ¶ 61,023
(Apr. 8, 2016) (“Remand Order”), reh’g denied, 158 FERC
¶ 61,138 (Feb. 3, 2017) (“Remand Rehearing Order”). The
Generators petitioned for review.
Before briefing was complete, ISO New England
decided that changing market conditions necessitated phasing
out the renewable energy exemption. The Commission
accepted ISO New England’s revised tariff phasing out the
renewable energy exemption. ISO-NE, 162 FERC ¶ 61,205 at
PP 25, 99 (Mar. 9, 2018). The revised tariff is not the subject
of the present petition.
II. Analysis
Under the Federal Power Act, FERC is required to
ensure that generators provide energy at a “just and reasonable”
rate. 16 U.S.C. § 824d(a), (e). We review the Commission’s
final orders under the Administrative Procedure Act. We will
vacate FERC decisions that are “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.” 5
U.S.C. § 706(2)(A). The Commission’s factual findings will
be upheld if supported by substantial evidence. 16 U.S.C.
§ 825l(b). “[W]e afford great deference to the Commission in
its rate decisions” because “‘just and reasonable’ is obviously
10
incapable of precise judicial definition.” Morgan Stanley
Capital Grp. Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cty.,
554 U.S. 527, 532 (2008).
The Generators petition for review of FERC’s orders,
arguing that the renewable exemption creates an unjust and
unreasonable rate and that the Commission was arbitrary and
capricious. Additionally, the Generators contend that the
Commission should have held a hearing on issues of disputed
facts.
A. Did FERC set a “just and reasonable” rate?
The Generators’ central complaint is that state-
subsidized renewable resources entering the forward capacity
market with below-cost prices will suppress the clearing price.
The Generators argue that any price suppression amounts to a
subsidy for renewable resources paid for by third-party
suppliers.
First, we consider the Generators’ argument that the
renewable exemption is contrary to the purpose of the forward
capacity market. The forward capacity market uses
“competitive bidding for future capacity contracts” to “both
incentivize[] and account[] for new entry by more efficient
generators, while ensuring a price both adequate to support
reliability and fair to consumers.” Connecticut Dep’t of Pub.
Util. Control, 569 F.3d at 480. In approving the renewable
energy exemption, the Commission “sought to accommodate
[state] policy decisions” to develop renewable resources “by
allowing a limited portion of renewable resources to submit
bids into the capacity market that are exempt from the
minimum offer price rule.” Remand Rehearing Order at P 8.
The Commission acknowledged that renewable “resources will
be constructed with or without a renewables exemption.”
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Remand Order at P 62. If those resources “are not reflected in
the [Forward Capacity Market], then the [Forward Capacity
Market] may send an incorrect signal to construct new capacity
that is not needed.” Remand Rehearing Order at PP 9, 48. This
would lead the market to procure redundant capacity. Id. The
Commission determined that the exemption allowed it “to send
appropriate price signals regarding where and when new
resources are needed.” Id. at P 9. As a result, the Commission
concluded that “[t]he renewables exemption fulfills [its]
statutory mandate by protecting consumers from paying for
redundant capacity.” Remand Order at P 33.
The Commission must “protect[] . . . consumers from
excessive rates and charges.” Xcel Energy Servs. Inc. v. FERC,
815 F.3d 947, 952 (D.C. Cir. 2016) (quoting Municipal Light
Bds. of Reading & Wakefield v. FPC, 450 F.2d 1341, 1348
(D.C. Cir. 1971)). We defer to the Commission’s
determination that the renewable exemption effectuates the
market’s primary purpose by sending the correct demand
signals to new entrants and by protecting consumers from
excessive rates.
“[S]etting a just and reasonable rate necessarily
‘involves a balancing of the investor and the consumer
interests.’” Wisconsin Pub. Power Inc. v. FERC, 493 F.3d 239,
262 (D.C. Cir. 2007) (per curiam) (quoting Federal Power
Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 603 (1944)). The
Commission recognized that the renewable exemption has the
potential to cause price suppression, which is counter to the
Generators’ interests. Nonetheless, the Commission
determined that the renewables exemption “is consistent with
the purpose of the” Forward Capacity Market, “namely,
ensuring that price signals are sufficient to incent existing
resources to stay in the capacity market, and new resources to
enter, so that ISO [New England] meets its reliability
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requirements at least cost.” Remand Order at P 35. In this
case, the Commission reasonably balanced the potential for
limited price suppression against competing interests in
concluding that the renewable exemption to the minimum offer
price rule is consistent with the purpose of the forward capacity
market.
Next, the Generators argue that allowing price
suppression contravenes precedent regarding just and
reasonable rates. According to the Generators, the
Commission’s approval of an exemption to the minimum offer
price rule conflicts with its earlier decision in the Buyer Market
Power Order to reject a categorical exemption to the minimum
offer price rule. In NEPGA, this Court upheld the
Commission’s rejection of a categorical exemption because the
Commission “reasonably acted to balance competing interests”
by “mak[ing] the judgment that encouraging renewable
energies was less important than allowing such out-of-market
entrants to depress capacity prices.” NEPGA, 757 F.3d at 295.
Although we deferred to FERC’s decision “to decline a
categorical mitigation exemption,” id., we never held that the
Commission must always weigh encouraging renewable
energies as less important than preventing price suppression.
In the orders under review in this case, the Commission
has performed an updated balancing of competing interests in
the New England market. In the Buyer Market Power Order
proceeding, the Commission explained that “[w]hether to grant
an exemption is based on each case’s unique facts” and the
“[p]arties have not provided sufficient specificity to allow us to
approve an appropriately narrow exemption.” Remand Order
at P 4 (quoting Buyer Market Power Order at P 171). In this
case, the Commission considered the price suppression
associated with the uneconomic entry of a small quantity of
renewable resources, rather than the categorical exemption it
13
had considered previously in the Buyer Market Power Order,
and weighed it against state policies to promote renewable
entry. Remand Order at PP 32-36, 39-43, 67-68; Remand
Rehearing Order at PP 19-29, 67-68. In its evaluation, the
Commission explained that the new sloped demand curve
mitigates the price suppression. Id. The Commission also
considered expert testimony stating that any price suppression
is limited by the renewable qualifying criteria, the low caps on
the maximum amount exempted renewable capacity, and
projected load growth and retirements. Id. The Commission
explained why its view on the renewables exemption evolved
and why the specific circumstances of this case led it to
conclude that the renewable exemption is just and reasonable.
Id. Under these circumstances, the Commission’s decisions are
distinguishable from the Buyer Market Power Order, and the
decisions are not in conflict.
The Generators also argue that the orders under review
are unreasonable because they are inconsistent with the
Commission’s decision to reject a renewable exemption to the
minimum offer price rule in the New England Complaint
Order. However, the New England Complaint Order is also
distinguishable from the present orders because the tariff still
relied on a vertical demand curve which results in more
significant price suppression than a sloped demand curve. See
New England Complaint Order at PP 15, 34-35; Remand
Rehearing Order at PP 67-68.
Additionally, the burden of proof is different in the
present case than in the New England Complaint Order. In the
New England Complaint Order, the Commission rejected the
complaint under section 206 of the Federal Power Act.
Remand Rehearing Order at P 49. Under section 206, the
complainant had to prove the existing rate was unjust and
unreasonable without the renewable exemption, and then prove
14
that the proposed exemption was just and reasonable. See
Maine v. FERC, 854 F.3d 9, 24-25 (D.C. Cir. 2017). The
present orders under review involve a tariff filing under section
205 of the Federal Power Act. Under section 205, FERC has
to prove that it is establishing a just and reasonable rate. See
id. The Commission is not required to show that the previous
rate was unjust and unreasonable in order to demonstrate that
the revised rate was just and reasonable under section 205. See
id. The New England Complaint Order does not constrain the
Commission from considering that changed circumstances
now render the renewable exemption just and reasonable.
Next, the Generators ask the Court to consider a Third
Circuit decision to affirm the elimination of an exemption to
the minimum offer price rule in the mid-Atlantic power market,
but that holding also does not counsel a different outcome in
this case. See New Jersey Bd. of Pub. Utils. v. FERC, 744 F.3d
74, 100 (3d Cir. 2014) (“New Jersey”). In New Jersey, the
Third Circuit considered a Commission order to eliminate a
broad exemption to the minimum offer price rule that applied
to any state-mandated resources. Id. at 95. New Jersey and
Maryland planned to submit “thousands of megawatts of new
capacity” below the minimum offer price floor under this
exemption. Id. at 96. The Third Circuit affirmed the
Commission’s fact-specific determination that there was
“mounting evidence of risk” that price suppression would
distort the market and send the wrong signals regarding the
need for new entrants to the market. Id. at 100-01. Notably, in
the same decision, the Third Circuit also affirmed a more
limited exemption for solar and wind resources. Id. at 106-07.
The Third Circuit concluded that “FERC is permitted to weigh
the danger of price suppression against the counter-danger of
over-mitigation, and determine where it wishes to strike the
balance.” New Jersey, 744 F.3d at 109. We agree. Unlike in
New Jersey, in this case the Commission found that the danger
15
of price suppression was minor compared to other market
considerations.
FERC has, at various times, considered exemptions to the
minimum offer price rule in other markets. See Remand Order
at PP 32-34. In some cases, the Commission accepted an
exemption, despite the potential for price suppression. See,
e.g., New York Pub. Serv. Comm’n, 153 FERC ¶ 61,022 at P 10
(Oct. 9, 2015); PJM Interconnection, 135 FERC ¶ 61,022 at
P 152 (Apr. 12, 2011). In some cases, the Commission rejected
an exemption because of the potential for price suppression and
market distortions. See, e.g., PJM Interconnection, 135 FERC
¶ 61,022 at P 139; New England Complaint Order at PP 32-35;
New York Indep. Sys. Operator, Inc., 122 FERC ¶ 61,211 at
P 110 (Mar. 7, 2008).
In those cases in which the Commission has considered
exemptions to the minimum offer price rule, it considered
exemptions using a fact-specific balancing test, factoring in the
scope of the exemption, the existence of sloped demand curves,
and the overall impact on the market, and only accepted
exemptions that were appropriate based on the specific features
of the market. The Commission engaged in the same type of
analysis in the present case, and its conclusion is not contrary
to precedent. This type of balancing requires an expert
understanding of the market, which is well within the
Commission’s realm of expertise. We see no reason to disturb
the Commission’s balancing just because it came out in favor
of the renewable exemption despite the potential for price
suppression.
B. Did FERC engage in reasoned decision-making?
Now that we have established that an exemption to the
minimum offer price rule can be just and reasonable under the
16
Federal Power Act, we will consider the Generators’ arguments
that FERC was arbitrary and capricious in its evaluation of the
renewable exemption.
First, the Generators argue that FERC acted
unreasonably because it failed to quantify the price suppression
resulting from the exemption. We defer to the Commission’s
reasoning when it relies on substantial evidence to make a
predictive judgment in an area in which it has expertise, such
as in the power markets. Wisconsin, 493 F.3d at 260. The
Generators would like the Court to either require a quantitative
assessment of price suppression or for FERC to explain
“specifically why it could not have done so.” Sierra Club v.
FERC, 867 F.3d 1357, 1374 (D.C. Cir. 2017). In Sierra Club,
we required a quantitative assessment of greenhouse gas
emissions, because such an assessment was necessary to
forecast the environmental impact of the decision under
review. Id. Price suppression is not a scientific determination,
but rather an economic construct. We permit the Commission
to base its market predictions on “basic economic theory, given
that it explained and applied the relevant economic principles
in a reasonable manner.” Sacramento Mun. Util. Dist. v.
FERC, 616 F.3d 520, 531 (D.C. Cir. 2010) (per curiam); see
also South Carolina Pub. Serv. Auth. v. FERC, 762 F.3d 41, 65
(D.C. Cir. 2014) (per curiam).
The Commission considered the contradictory expert
testimony that the Generators presented that described and
quantified potentially severe price suppression. See Remand
Order at PP 37-44. The Commission credited competing
expert testimony that predicted the price impact was more
limited. Id. at PP 40-41. The Commission explained that the
experts’ conclusions differed because they disagreed on the
predicted steepness of the supply curve, and it rejected the
Generators’ experts’ assumptions on that topic. Id. It is well
17
within the Commission’s expertise to resolve conflicting expert
testimony and make a judgment on which best predicts the
scope and magnitude of the price suppression. The
Commission is not required to rely only on quantitative
predictions. Accordingly, we conclude that FERC relied on
substantial evidence in determining that the price suppression
from the renewable exemption will be minimal.
Second, the Generators argue that FERC acted
unreasonably by relying on the sloped demand curve to justify
its decision. The Generators argue that even though the sloped
demand curve mitigates the price suppression compared to a
vertical demand curve, it still results in significant price
suppression and an unjust rate.
The Generators’ objection revolves around the
determination of the point where the supply curve intersects the
demand curve, which sets the clearing price. When below-cost
energy is added to the market, it shifts the supply curve to the
right, so that it intersects the demand curve at a lower clearing
price. Remand Rehearing Order at P 21. The Generators
assert that the supply curve is steep where it intersects the
demand curve. Because it is steep, small rightward shifts to the
supply curve caused by the introduction of a limited amount of
below-cost resources result in an intersection with the demand
curve at a much lower clearing price. See id. at P 22. The
Commission agrees that the steepness of the supply curve
influences the magnitude of the price suppression. However,
the Commission credited the testimony of an expert witness
that explained that the supply curves are likely to be flatter than
the supply curves offered by the Generators’ experts. Remand
Order at P 41; Remand Rehearing Order at P 25.
Likewise, the Generators also argue the Commission
acted unreasonably in accepting ISO New England’s revised
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demand curves and the addition of local sloped demand curves
upon remand. Generators argue that the new demand curves
are steeper at the point that they intersect the supply curve than
the previous demand curves, resulting in greater price
suppression. The Commission determined that the steepness in
the new demand curves is mitigated because actual supply
curves have been flatter than Generators predicted, and, if the
performance of the demand curves changes over time, there are
proceedings to review new curves that can address any issues.
See Remand Order at P 44; Remand Rehearing Order at P 37.
The Generators object to the inclusion of data from the ninth
and tenth capacity year in the Commission’s reasoning.
However, the record was still open at the time the Commission
considered the Remand Order and the Commission may fairly
consider the market’s actual performance. 1
Again, we defer to the Commission’s resolution of
conflicting expert testimony regarding the relationship
between the intersection between the supply and demand
1
It may appear that the Commission selectively relied on evidence
of the performance of the supply curves during the ninth and tenth
capacity year while it simultaneously refused to consider evidence
that the predicted load growth was not materializing. However, as
the Commission acknowledged, load growth was lower than
anticipated during the ninth and tenth capacity years. Remand
Rehearing Order at P 72. But, the Commission relied on retirements
in addition to load growth to offset the renewables exemption. The
Commission considered evidence that the actual retirements in those
years offset the small amount of exempted renewable energy that
actually cleared the market even absent load growth. Id. at P 73. The
Commission further acknowledged that ISO New England affirmed
it was committed to revisiting the cap in future years if the load
growth and retirements failed to offset the entry of exempted
renewables into the market. Id. at P 74.
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curves and the clearing price. The Commission reasonably
determined that price suppression would be minimal because
sloped demand curves mitigate price suppression.
Third, the Generators argue that FERC acted
unreasonably by relying on anticipated load growth and
retirements to mitigate price suppression. The Commission
relied on expert testimony predicting that existing generators
would leave the market and the demand for capacity would
grow. Therefore, the small amount of renewable resources
would fill some of this demand while prices remained stable.
See Remand Order at P 53; Remand Rehearing Order at P 20.
The Generators counter that load growth failed to occur
as the Commission anticipated. “[R]easoned decisionmaking
does not require complete prescience.” Florida Gas
Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir.
2010). The Commission relied on the expert predictions that
were available at the time of its decision, and we defer to its
use of these predictions.
The Generators also argue that the Commission did not
rationally tie the magnitude of the exemption to any particular
prediction of load growth or retirement. However, FERC
explained that the 200 megawatt exemption was based on the
best estimate of load growth, which was “estimated at 189 MW
annually, plus an adjustment for the reserve margin required to
meet the installed capacity requirement.” Initial Order at P 83;
Rehearing Order at P 22. The Commission also acknowledged
load growth could be more or less than ISO New England
anticipated, but ISO New England committed to “revisit[ing]
the cap on the . . . exemption in the future, should the entry of
[renewable resources] exceed load growth.” Rehearing Order
at P 22. The Commission acted reasonably in tying the 200
megawatt exemption caps to load growth estimates.
20
With respect to retirements, the Generators argue that
the retirement rationale was inappropriately raised on remand,
that uneconomic entry will continue after retirements complete,
and that its experts found price suppression will occur even
with retirements. The Commission noted that ISO New
England had previously predicted 6,500 megawatts of
retirements by 2020, which is a substantial portion of the
35,000 megawatt market. Remand Order at P 53; Remand
Rehearing Order at P 73. More recently, ISO New England
“estimated that by 2020, resources representing about 30
percent of regional capacity have committed to cease operation
or are at risk of retirement.” Remand Order at P 53. The
Commission observed that the predicted retirements were far
in excess of the 600 megawatt carry-forward cap, and
concluded that the exempted renewable energy would only
make a small impact in replacing retiring resources. Id. Even
with retirements, the Commission acknowledged the potential
for minor price suppression. See Remand Rehearing Order at
P 20. But the Commission is not required to protect against all
price suppression. The Commission acted reasonably in
concluding that retirements would help mitigate any price
suppression.
Accordingly, we defer to the Commission’s conclusion
that the renewable energy exemption had only a limited
potential for price suppression because of the implementation
of the sloped demand curve, the prediction of a flatter supply
curve, and predicted load growth and retirements. Therefore,
we deny the Generators’ petition for review.
C. The Generators’ request for a hearing
Lastly, the Generators argue that the Commission
should have settled issues of disputed fact regarding price
21
suppression, load growth, and retirements at a hearing. The
Commission’s decision on whether to hold a hearing is
reviewed for abuse of discretion. Louisiana Pub. Serv.
Comm’n v. FERC, 184 F.3d 892, 895 (D.C. Cir. 1999). “In
general, FERC must hold an evidentiary hearing only when a
genuine issue of material fact exists, and even then, FERC need
not conduct such a hearing if [the disputed issues] may be
adequately resolved on the written record.” Minisink Residents
for Envtl. Pres. & Safety v. FERC, 762 F.3d 97, 114 (D.C. Cir.
2014) (quoting Cajun Elec. Power Coop., Inc. v. FERC, 28
F.3d 173, 177 (D.C. Cir. 1994) (per curiam)).
In this case, the Commission decided that the material
facts could be resolved on the written record. Remand
Rehearing Order at PP 99-100. The extensive written record
contained expert testimony and analysis regarding the market
effects of the renewable exemption, the development of the
sloped demand curve, and predictions for load growth and
retirements. See id. Accordingly, the Commission did not
abuse its discretion by relying on the written record to resolve
disputes of material fact on these issues.
III. Conclusion
For the reasons set forth above, the Generators’ petition
for review is denied.