Feds Can’t Dictate Venue for Utility Showdown

CHICAGO (CN) - The chief judge of the 7th Circuit balked at a request from the U.S. government to defend electric utility regulations in Washington.

In May, the Federal Energy Regulatory Commission finalized Order 1000, changing electric-transmission planning and cost-allocation requirements for public utilities. The order made regional planning processes mandatory, where they had once been voluntary; eliminated the "federal right of refusal," which had traditionally given priority to incumbent utility providers; and provided for intraregional cost allocation.

Several parties petitioned for judicial review of the order. They are expected to challenge commission's regulatory authority under the Federal Power Act.

The Sacramento Municipal Utility District filed its objection in the 7th Circuit. The Coalition for Fair Transmission Policy, the South Carolina Public Service Authority, and the Public Service Enterprise Group did the same in the D.C. Circuit.

Hoping to consolidate the cases in the D.C. Circuit, the commission filed an "Unopposed Motion to Transfer" the Sacramento entity's case.

Chief Judge Frank Easterbrook found, however, that "the motion conspicuously did not cite any statute, rule or decision authorizing a transfer."

When petitions to review an agency decision are filed in multiple courts, the Judicial Panel on Multidistrict Litigation is supposed to choose which circuit will hear the appeal, Easterbrook explained. The selected circuit can "thereafter" transfer the petitions elsewhere "for the convenience of the parties and in the interest of justice."

"For a long time the norm was that, if multiple parties filed petitions in different circuits, the court in which the first petition had been filed would resolve all challenges to the agency's decision," he wrote. "That led to unseemly races to the courthouse in an effort to secure favorable venues."

The commission cannot avoid the procedures implemented to remedy the courthouse races, even for the sake of convenience, the court held.

"A court's views of convenience (or of wise policy more generally) are poor grounds for disregarding a law," Easterbrook wrote (parentheses in original). "The commission's motion rests on an unarticulated belief that, despite statute establishing rules of procedure, courts can do anything they think wise. Not at all."

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