Section 210 offers two paths for judicial review and enforcement of these rules. First, section 210(g) provides for judicial review, in state court, of any proceeding conducted by a state regulatory authority or nonregulated electric utility for purposes of implementing any requirement of a section 210(a) rule. (The directive sending litigants to state court is found through the statute’s cross reference of 16 U.S.C. § 2633.) Section 210(g) also allows anyone to sue a utility or a qualifying facility in state court to enforce a rule established by a state regulatory authority or nonregulated electric utility. 18 U.S.C. § 824a-3(g). Section 210(h), in turn, allows FERC to enforce the requirements of PURPA in federal court. Importantly, if FERC declines a request of a utility or QF for FERC to enforce the requirement of section 210(f) that the state regulatory authority or nonregulated utility implement FERC’s rules—which is what FERC typically does in response to a petition for enforcement—that entity can itself sue the state regulatory authority or nonregulated utility in federal court. Id. § 824a-3(h).
This forum dichotomy has proven befuddling, with parties frequently litigating the question of whether an action by a state regulatory authority or nonregulated electric utility amounts to a failure to implement. (Rest assured, the volumes of the Federal Reporter are not overwhelmed with these cases; this is not the National Environmental Policy Act. But when there is litigation, the issue tends to surface.) From the disputes has evolved a (sort of) test: Is the claim an as-applied claim or an implementation claim. An implementation claim “demands facial consistency with FERC rules. PURPA requires that utilities implement FERC rules, and it empowers federal courts to review whether the utilities’ implementation was successful on its face. . . . But the utility may apply its own rules improperly to individual customers, in which case the customers may bring a claim in state court.” Vote Solar v. City of Farmington, 2 F.4th 1285, 1290 (10th Cir. 2021). In Exelon Wind 1, L.L.C. v. Nelson, the Fifth Circuit described the analysis this way: “An implementation claim involves a contention that the state agency . . . has failed to implement a lawful implementation plan under § 824a–3(f) of PURPA, whereas an as-applied claim involves a contention that the state agency’s . . . implementation plan is unlawful, as it applies to or affects an individual petitioner.” 766 F.3d 380, 388 (5th Cir. 2014).
Recent years have seen a recurring fact pattern further complicate matters. As discussed, section 210(a) directed FERC to develop rules to promote QFs, including rules that require utilities to both sell electricity to QFs and purchase electricity from QFs. The former type of transaction represents a retail sale—that is, a sale of electricity for end-use consumption. The regulation of such sales falls exclusively to the states. See, e.g., Hughes v. Talen Energy Mkt’g, LLC, 136 S. Ct. 1288, 1292 (2016) (“[T]he law places beyond FERC’s power, and leaves to the States alone, the regulation of any other sale—most notably, any retail sale—of electricity.” (quotations omitted)); Niagara Mohawk Power Corp. v. FERC, 452 F.3d 822, 824 (D.C. Cir. 2006) (“FERC has jurisdiction over both the interstate transmission of electricity and the sale of electricity at wholesale in interstate commerce. States retain jurisdiction over retail sales of electricity. …”). Indeed, FERC itself advised in a policy statement issued in the wake of Order No. 69 that disputes over such sales appropriately went to state forums for resolution. Policy Statement Regarding the Commission’s Enforcement Role Under Section of the Public Utility Regulatory Policies Act of 1978, FERC Docket No. PL83-4, 48 Fed. Reg. 29,475, 29,476 n.9 (June 27, 1983) (“The Commission notes that sales by electric utilities to qualifying facilities are retail sales which are not ‘operations’ under the Federal Power Act and are not, therefore, subject to Commission enforcement jurisdiction.”).
Notwithstanding this precedent and FERC’s advisory statement contemporaneously issued with its regulations implementing PURPA, on several occasions this century, FERC has acted in a way that indicates that enforcement jurisdiction under 210(h) might well lie in a federal court, even if the case involves a retail sale of electricity. See ConocoPhillips Co. v. L.A. Dep’t of Water & Power, 110 FERC ¶ 61,368, P 7 n.5 (Mar. 28, 2005) (stating that “Petitioners have alleged facts that, if true, indicate LADWP’s implementation of PURPA is inconsistent with our regulations”); In re Michael Eisenfeld et al., 167 FERC ¶ 61,228 (June 18, 2019). Indeed, in three recent instances, FERC commissioners have expressly opined as much, without acknowledging or reconciling the underlying jurisdictional question. See Schedler v. Salt River Project Agric. Improvement & Power Dist., 186 FERC ¶ 61,206 (Mar. 21, 2024) (Clements, Comm’r, concurring) (“While states and relevant non-jurisdictional entities such as SRP have retail rate authority, PURPA provides for federal jurisdiction over a utility or retail authority’s implementation of PURPA’s obligation to purchase from and sell to Qualifying Facilities.”); but see id. (Christie, Comm’r, concurring) (“I write separately to state that I find persuasive the various arguments raised … that the issues presented in the underlying Petition for Enforcement are state issues, which should be addressed at the state level, not at the federal level.”); see also Bankston v. Ala. Pub. Serv. Comm’n, 183 FERC ¶ 61,064 (Apr. 28, 2023) (Clements, Comm’r, concurring) (“[N]one of the pleadings in this proceeding alter the conclusion that Chairman Glick and I previously jointly expressed that this rate appears to violate the regulations set forth in FERC Order No. 69.” (citing 175 FERC ¶ 61,181 (2021) (Glick, Chairman, & Clements, Comm’r, jointly concurring))).
With the change in administration, one might think an opportunity could be on the horizon for FERC to clarify matters and, at a minimum, reconcile some of its recent observations with the 1983 Policy Statement. The esoteric issues presented by these types of proceedings—whether a federal or state court should be deciding whether a particular retail electricity rate or program complies with PURPA, and what the contours of such a case are—requires resolution that only can be provided by a court. Orders like those cited above are nonbinding advisory opinions. See Portland Gen. Elec. Co. v. FERC, 854 F.3d 692, 702 (D.C. Cir. 2017) (“FERC could avoid a great deal of confusion and waste of judicial resources by not using words like ‘shall’ and ‘must,’ and by making clear in its orders—as opposed to later in this court—that its discussions of PURPA-related issues are advisory only.”). And with respect to design of section 210, as crafted by the 1978 Congress, perhaps it is fitting that this unique jurisdictional question—which may be such that the traditional as-implemented versus as-applied paradigm does not suit the analysis at all—be decided by a federal court.
