DC Circuit Court of Appeals

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On February 14, 2023, the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Energy Regulatory Commission’s (FERC) method for calculating the size of a small power production qualifying facility (QF) under PURPA as the net output or “send-out” capacity of the project. See Solar Energy Industries Association v. FERC, No. 21-1126 (D.C. Cir. 2023). To be a small power production QF under PURPA, a facility must use a qualified renewable resource, such as biomass, waste, wind, solar, or geothermal resources, to produce energy, and have a power production capacity that does not exceed 80 megawatts when considered with other facilities at the same site. FERC’s method of calculating the maximum size limitation was contested by Edison Electric Institute and Northwestern Energy (collectively, Utilities).…

Power plant silhouetteEarlier today, the U.S. Court of Appeals for the D.C. Circuit issued an order granted EPA’s motion to hold the Clean Power Plan litigation in abeyance while EPA reviews the carbon pollution emission guidelines for existing power plants and the standards of performance of new, modified, and reconstructed power plants and, if appropriate, publishes proposed rules suspending, revising, or rescinding those rules. Review of the rules is required by President Trump’s Executive Order targeting climate change regulation (discussed further here).

The motion for abeyance was opposed by numerous parties, including cities and states; Calpine Corporation and municipal power companies; the American Wind Energy Association and Solar Energy Industries Association; and environmental organizations. They argued that…