7th Circuit opinion overturning FERC rule that was basis for pass thru of transmission line costs to WVa in FERC cases involving TRAIL and PATH
Some of you may have already seen the attached opinion by Judge Posner of the United States Court of Appeals for the Seventh Circuit, which is based in Chicago and is the intermediate appellate court between US District Courts and the Supreme Court. In essence, Posner struck down the FERC rule that allowed PJM to recoup the costs of construction of a new high voltage electric transmission line -- even in part -- from utilities that derived no discernible benefit from the line. Importantly, the court deemed the value associated with "reliability" -- the chief benefit cited as justification for the TRAIL and PATH lines in W. Va. -- to be negligible and, in any event, insufficient to justify the pass thru of costs to utilities who received no other tangible economic benefit.
Although the decision repeats, in a very different context (one relating to recoverable transmission rates, not authority to construct transmission lines) many of the arguments we made last year in TRAIL and will make this year in PATH, it will be some time before we will use the decision in our own case. Additionally, there was a powerful dissent, quoting the conflicting opinion of then Judge John Roberts in a DC Circuit case which reached the opposite outcome, obviously for the purpose of highlighting the fact that there is now a "conflict of decisions among circuits" (one of the grounds SCOTUS uses to decide whether to hear an appeal) and attempting to draw the attention of now Chief Justice John Roberts.
Stand by....
Thanks so much Bill,
I had seen the opinion --- and Bill Howley 'blogged' about it on the Power Line the other day --- but i always appreciate reminders and repetition is usually most helpful --- for me at least.
I've been meaning to email you with the Loehr testimony to Congress that i mentioned to you on the steps of the Culture Center after the PSC status hearing last week..... Tim Higgins picked up on the Loehr document and we circulated it to the folks on our Upshur PATH email list. http://conserveland.org/pp/Transmission/loehr_testimony.pdf I haven't gone back to read Mr. Loehr's testimony in the TrAIL case, so i apologize if much of this statement before Senator Bingaman's Senate Energy Committee last summer is similar to what you've already heard from him. But i found it very informative.
--- Good to meet you the other day and thanks for including me on this email today. As i said last week Frank forwards the PATH case information. However, if you don't mind including me on your emails it might save Frank a few extra steps.
Cindy
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----- Original Message ----- From: William V. DePaulo, Esq. To: Energy Committee ; Jim Sconyers ; Frank Young ; Cindy Rank Sent: Monday, August 17, 2009 3:41 PM Subject: 7th Circuit opinion overturning FERC rule that was basis for pass thru of transmission line costs to WVa in FERC cases involving TRAIL and PATH
Some of you may have already seen the attached opinion by Judge Posner of the United States Court of Appeals for the Seventh Circuit, which is based in Chicago and is the intermediate appellate court between US District Courts and the Supreme Court. In essence, Posner struck down the FERC rule that allowed PJM to recoup the costs of construction of a new high voltage electric transmission line -- even in part -- from utilities that derived no discernible benefit from the line. Importantly, the court deemed the value associated with "reliability" -- the chief benefit cited as justification for the TRAIL and PATH lines in W. Va. -- to be negligible and, in any event, insufficient to justify the pass thru of costs to utilities who received no other tangible economic benefit.
Although the decision repeats, in a very different context (one relating to recoverable transmission rates, not authority to construct transmission lines) many of the arguments we made last year in TRAIL and will make this year in PATH, it will be some time before we will use the decision in our own case. Additionally, there was a powerful dissent, quoting the conflicting opinion of then Judge John Roberts in a DC Circuit case which reached the opposite outcome, obviously for the purpose of highlighting the fact that there is now a "conflict of decisions among circuits" (one of the grounds SCOTUS uses to decide whether to hear an appeal) and attempting to draw the attention of now Chief Justice John Roberts.
Stand by....
-- William V. DePaulo, Esq. 179 Summers Street, Suite 232 Charleston, WV 25301-2163 Tel: 304-342-5588 Fax: 304-342-5505 william.depaulo@gmail.com www.passeggiata.com
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cindyrank -
William V. DePaulo, Esq.