FERC’s Order 745 — Still In Effect For Now

The D.C. Circuit Court of Appeals has stayed its mandate vacating FERC Order no. 745, regarding demand response.  The mandate is stayed at least until December 16, 2014, by which point FERC must petition the Supreme Court for review.  If FERC does seek cert., the stay will continue until the Supreme Court denies the petition or rules against FERC on the merits.

I don’t know if FERC will seek cert.  I know that the Commissioners supporting the order were disappointed that the D.C. Circuit did not grant en banc review, given the strong dissent by Judge Edwards.  Since FERC sought the stay, the Commission must at least be considering a cert. petition.

As I discussed when the decision was issued, the dissent has a lot of force and FERC stands a reasonably good shot before the Supreme Court.  The decision would seem to come down to whether a seemingly increasing reliance on Chevron deference overcomes the court’s strong federalism agenda, favoring state over federal authority.

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