Jenner & Block

Team Wins an Important Victory, Maintaining Net Metering for Small Renewable Generation

On July 16, a Jenner & Block team scored a victory in a case that attracted significant nationwide attention not only for its immense practical implications, but because it would have reversed decades of Federal Energy Regulatory Commission (FERC) precedent and preempted state law in more than 40 states.
FERC dismissed a petition for declaratory order seeking relief that would have gutted the “net metering” programs that compensate owners of rooftop solar and other small-scale renewable generation for the energy their systems produce.  The petition had asked FERC to assert jurisdiction over sales from these small generators, and to compensate owners for the power they send to the grid at wholesale rates, which are much lower than the compensation provided under current net metering programs.  As a result, the petition was widely reported as potentially lethal to the rooftop solar industry.  
A firm team represented the National Association of Regulatory Utility Commissioners (NARUC), a non-profit organization dedicated to representing the state public service commissions who regulate the utilities that provide services such as energy, telecommunications, power, water, and transportation.  On behalf of NARUC, the team explained in depth the vast diversity among states’ net metering programs and, in addition to other arguments on the merits, argued that the petition should be dismissed because it sought only generic relief, and failed to identify any particular programs, or features of those programs, that would justify preemption.
In a unanimous decision, FERC adopted that conclusion, finding that the petition did not “identify a specific controversy or harm.”  FERC’s decision will preserve the current jurisdictional boundary and the current compensation for net-metered customers.  
NARUC’s president, Brandon Presley, wrote on Twitter, “If I never achieve another thing as NARUC President, fighting back the NERA petition at FERC and winning will be one of my proudest moments.  This should send a signal that when state jurisdiction is attacked, under any guise, we bring our A game and all hands will be on deck.”
The matter was led by Partners Suedeen G. Kelly, Matthew E. Price, and Glenn Rippie, Associate Hanna M. Conger, and Law Clerk Rachel Wilf-Townsend, with support from Senior Paralegal Cheryl Olson, Associate Manager of Docketing Services Tyler Edwards, and summer associate Karolina Bartosik.