FERC and the Courts
Since 1992, TAPS had been active in most FERC
transmission and market power (e.g., merger) rulemakings, notices of inquiry, and the like. As a general rule, TAPS does not
participate in individual contested cases, such as individual mergers or rate filings, for budgetary and other reasons. Individual
members are responsible for intervening in contested cases that directly affect them.
TAPS
achieved a number of victories for transmission-dependent utilities in FERC's Order 888 proceeding, including comparable treatment
of network and other service to native load (e.g., load growth, network resource designations); interface use based on total
network resources using the interface (not load ratio share); network customer rights to insist on the filing of unexecuted
network service and operating agreements; credits for customer contributed reactive power; increased minimum deviation band.
The Commission relied heavily on TAPS comments in developing the factual case and legal authority to support issuance of Order
888.
TAPS’
appeal of portions of Order 888 was consolidated with appeals of others under the caption TAPS v. FERC in the DC Circuit
Court. In that appeal, TAPS supported FERC's assertion of jurisdiction to require transmission service on a nation-wide basis,
rather than in individual complaint proceedings, against attacks by state commissions, private utilities, some public systems
and others. TAPS also sought to expand FERC's authority over bundled, as well as unbundled, retail transmission service in
order to achieve true comparability. The D.C. Circuit rebuffed the state commissions’ efforts to roll back FERC’s
assertion of authority over unbundled retail transmission and low voltage wholesale transmission, while opening the door to
revisit what the Court termed FERC’s policy choice not to assert jurisdiction over the transmission component of bundled
retail sales. After the United States Supreme Court granted certiorari on the jurisdictional issues, TAPS participated
by filing briefs and assisting allied parties. The United States Supreme Court affirmed the D.C. Circuit Court decision
in New York v. FERC.
TAPS also was instrumental in obtaining an important correction to the Court of Appeals decision
after it was issued. The Court had mistakenly stated that FERC no longer has authority under Sections 211 and 212 to order
the provision of transmission service. At TAPS' request, the Court deleted this portion of the decision. FERC agreed with
our effort to correct the decision, but was unwilling to ask the Court to act.
TAPS has participated
in all major FERC rulemakings dealing with tranmission and market power issues, including the recent rulemakings to revisit
Order 888 (resulting in Order 890) and to address wholesale competition in regions with organized electric markets (resulting
in Order 719). In addition to filing comments, TAPS representatives have been selected from among many applicants to
testify before FERC in these proceedings. FERC staff recognizes TAPS as one of a handful of entities that can be expected
to file detailed and knowledgeable comments in major electric policy dockets.
TAPS' attorneys provide
TAPS members with regular memoranda that summarize and analyze significant FERC decisions on transmission and market power
issues.
