In my dissent to Order No. 1920, the transmission planning and cost allocation final rule, I wrote that “Order No. 1000 [which Order No. 1920 relies upon for its claim of legal authority] was built on what may be a foundation of sand known as ‘Chevron deference.’”[1] I also said in my dissent that Order No. 1920 is “not entitled to Chevron deference in any form”[2] because it goes far beyond Order No. 1000 by claiming legal authority that Congress has never granted.[3]
Today, in Loper Bright Enterprises v. Raimondo, together with Relentless, Inc. v. Department of Commerce, the U.S. Supreme Court overruled Chevron and the deference it allotted to administrative agencies. So the most important legal lifeline that Order No. 1920 needed was pulled away today, and the final rule’s chances of surviving court challenges just shrank to slim to none.
The 50 petitions for rehearing and/or amendment of Order No. 1920 remain pending. Many are devastating takedowns, including those from the National Association of Regulatory Utility Commissioners (NARUC) and many individual states, PJM Interconnection, industrial consumers, and rural electric co-operatives (NRECA). Many seek specific amendments to Order No. 1920 in light of its then - and even more now - dubious legal foundation.
As a practical matter, Order No. 1920 will not work in its current form, which was obvious when it was released, and the many petitions make that even more clear. The Commission can wait for a court to strike it down – now far more likely given today’s Supreme Court decision doing away with Chevron deference – or it can respond to those many petitions asking for rehearing or amendments with a new opportunity for amendments. The Commission still has an opportunity to amend Order No. 1920 into a true compromise that will promote sensible long-term transmission planning, while protecting consumers and respecting and elevating the important role of states throughout the process.
Given today’s Supreme Court decision overturning Chevron, I hope that this Commission, with its new lineup of commissioners, will be willing to work on amending Order No. 1920 into something that can actually work in the field and is within our legal authority, which the current version is not.
[1] Bldg. for the Future Through Elec. Reg’l Transmission Plan. & Cost Allocation & Generator Interconnection, Order No. 1920, 187 FERC ¶ 61,068 (2024) (Christie, Comm’r, dissenting at P 33 & n.93) (Order No. 1920 Dissent), https://www.ferc.gov/news-events/news/e-1-commissioner-christie-dissent-transmission-planning-and-cost-allocation-rule; see also Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (Chevron).
[2] Order No. 1920 Dissent at P 41.
[3] See id. at Section III.