American Forest Paper Association v. FERC

Dec 23: In the U.S. Court of Appeals, D.C. Circuit, Case No. 07-1328. In its brief summary, the Appeals Court says, "Petitioners insist the term 'markets' as used in the recent amendment to the Public Utility Regulatory Policies Act (PURPA) must always denote a competitive market. The Federal Energy Regulatory Commission (FERC) interprets the word 'markets' to encompass both competitive and non-competitive markets." The Appeals Court said that "FERC’s interpretation is reasonable" and denied the petition for review.

The Appeals Court further explains, "Section 824a-3(m)(1) [of PURPA] refers to 'markets' several times. In a formal rulemaking, FERC interpreted the term 'markets' in subparagraph (m)(1)(A) as encompassing both competitive and non-competitive markets. . . The fact that FERC chose to adopt certain rebuttable presumptions via rulemaking, rather than by case-by-case adjudication, does not violate any of the statute’s requirements. And, as we have long held in such scenarios, the 'decision whether to proceed by rulemaking or adjudication lies within the [agency’s] discretion.”

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