A Divided Court Decides the Future of Demand Response: Oral Argument of FERC v. Electric Power Supply Association

By: Anthony Fares

5th December, 2015

In May 2014, the D.C. Circuit held, by a vote of 2-1, that the Federal Energy Regulatory Commission’s (“FERC”) Order 745 governing demand response resources in the wholesale energy market exceeded FERC’s authority under the Federal Power Act and was arbitrary and capricious under the Administrative Procedure Act. FERC, alongside three aggregators of electricity consumers and two parties representing customers of wholesale market operators, petitioned for certiorari. I attended oral argument on October 14, 2015; having seen the attorneys argue and the Justices react to their arguments, I gained a unique perspective on this case. This Field Report will present a brief background of the relevant facts and law, analyze the arguments presented in court, and predict how the U.S. Supreme Court will decide the case.

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