Although the DC Circuit may have relaxed the formal tone of its decisions, it certainly hasn’t relaxed the strict jurisdictional requirements for judicial review of FERC orders under Section 313 of the Federal Power Act.

Thus, in Indiana Utility Regulatory Commission v. FERC (January 17, 2012), the DC Circuit declined to “cut [the Indiana Commission ] some slack” in determining whether it had properly preserved its objections to FERC’s order on rehearing.

To decline to “cut any slack” is funny phrasing for a not so funny situation from the Indiana Commission’s perspective.  On review, the Indiana Commission’s primary argument was that FERC’s order approving revisions to a PJM tariff would “encroach on Indiana state jurisdictional authority,” in violation of the Section 201.

Ordinarily, arguments that FERC exceeded its statutory authority receive the close attention from the court, and can be winners for petitioners because an ultra vires type of argument is not subject to the same presumption of deference as orders where FERC makes findings of fact.  Unfortunately for the Indiana Commission, the DC Circuit refused to hear the merits of the argument that FERC exceeded its statutory authority because the court determined that it hadn’t been raised with specificity on rehearing.  Instead, on rehearing at FERC, the Indiana Commission had alluded to the ultra vireos argument in a single sentence and incorporated by reference previous discussion.  The DC Circuit held that indirect references did not meet the statutory criteria that objections to FERC’s order be “set forth specifically” on rehearing to preserve them for judicial review, and dismissed the petition insofar as it argues that the Commission encroached upon state jurisdiction. [click to continue…]