Counsel for NEPGA and EPSA filed a response to a letter Public Citizen filed with the U.S. Court of Appeals for the D.C. Circuit in its appeal of the FCA 8 results currently pending before the Court (Nos. 14-1244 and 14-1246). NEPGA, EPSA, NRG, Calpine, and HQUS are Intervenors in support of the Respondent FERC. Several Connecticut regulatory authorities joined Public Citizen as joint Petitioners. In its letter, Public Citizen brings to the Court’s attention its holding in Xcel Energy Services v. FERC (815 F.3d 947 (D.C. Cir 2016)), asserting that the holding supports Public Citizen’s argument that the Federal Power Act compelled FERC to opine on the justness of the FCA 8 rates prior to them going into effect at the conclusion of the statutory 60 day notice period. The Court issued its opinion in Xcel Energy months after Public Citizen filed its Final Brief in its FCA 8 appeal – for that reason, and because Public Citizen asserts that the Court’s holding in Xcel Energy is relevant to the FCA 8 appeal, Public Citizen asserts that it is authorized to notify the Court of the Xcel Energy decision pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure (providing for the filing of “pertinent and significant authorities” that come to a party’s attention after the party has filed its final brief). FERC also filed a response to Public Citizen’s letter. Counsel for NEPGA and EPSA argues, in part, that the Xcel holding provides that when FERC affirmatively finds that a proposed rate may not be just and reasonable, it must suspend the rate or require a refund. Because FERC did not make an affirmative finding on the FCA 8 results, counsel explains that the Xcel decision does not bear on FERC’s responsibilities under the Federal Power Act in the context of the FCA 8 results.
