An amicus brief drafted by the Institute for Public Representation received mention from Justice Breyer last month, during oral argument for the case Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association.
The case dealt with FERC Order 745, which allows for compensation of “demand response” resources—i.e., curtailed electricity use that can be dispatched to help balance electricity supply and demand. At issue in the case is whether FERC overstepped its jurisdictional bounds with the Order, and whether its issuance of the Order was arbitrary and capricious. The final version of Order 745 differed from the original draft: while the original instructed wholesale market administrators to pay for demand response at all hours, the final version said that administrators should only pay for demand response when doing so would yield a net benefit to the wholesale marketplace. This change responded to comments submitted during FERC’s public comment process, which expressed concern about overcompensation of demand response providers. The mechanism FERC designed to identify when demand response would yield a net benefit was dubbed the “Net Benefits Test.” IPR’s amicus brief, written by former IPR Teaching Fellow Justin Gundlach and economist Dr. Charles Cicchetti, explained the role of the Net Benefits Test in the final version of FERC’s Order.
During his argument, Paul Clement—counsel for the Electric Power Supply Association—referenced the Net Benefits Test. Justice Breyer interrupted, asking whether “Cicchetti . . . writes about that in the brief, doesn’t he?” After Clement agreed, Justice Breyer continued, “And so I think that’s the best brief to read on [the Net Benefits Test].” Clement responded, “Yes.” He may have then realized that agreeing that IPR’s Cicchetti amicus brief is the “best brief” may have conceded too much, in that the brief rejected Clement’s clients’ position that FERC’s use of the Net Benefits Test did not save it from being arbitrary and capricious. Clement added that an expert amicus countering the Cicchetti amicus “has the better of the argument,” but Justice Breyer was clear: he promised to closely read IPR’s Cicchetti brief.