Cherokee County Cogeneration Partners, LLC v. FERC, No. 21-1163 (D.C. Cir. 2022)
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Petitioner, Cherokee, owns a qualifying cogeneration facility in South Carolina. Intervenor, Duke Energy Carolinas, LLC, is a public utility that sells wholesale and retail electric services to customers in North Carolina and South Carolina. Petitioner sells the entirety of its generated capacity and energy to Duke “under a Power Sales Agreement (PPA) pursuant to PURPA.”
This case arose because Petitioner sought compensation for the reactive service it provides to Duke’s transmission system. Petitioner filed a proposed rate schedule for its reactive service with FERC pursuant to section 205 of the Federal Power Act. 16 U.S.C. Section 824d.
Duke intervened and claimed that FERC lacked jurisdiction over Petitioner’s section 205 filing. Duke contended that Petitioner’s facility is a qualifying facility selling energy or capacity to Duke pursuant to South Carolina’s implementation of PURPA. Petitioner contended that FERC’s dismissal of its section 205 rate filing is arbitrary and capricious.
The DC Circuit denied the petition for review. The court explained that while it clearly has jurisdiction over the petitions, it lacks authority to consider Petitioner’s arguments because they were not adequately presented in its petition for rehearing. The court wrote that FERC did not devise a new rationale out of the blue, instead, Petitioner made the “energy or capacity” argument in its original Answer to Duke’s motion to dismiss, but then dropped it in its petition for rehearing. Thus, Petitioner did not meet its obligation to show that its filing avoided the cogeneration regulation’s exemption from FERC jurisdiction. As such, the court concluded it does not have authority to consider the Petitioner’s arguments.
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