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No. 07-658

 

In the Supreme Court of the United States

NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, ET AL., PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL ENERGY REGULATORY
COMMISSION IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

CYNTHIA A. MARLETTE
General Counsel
ROBERT H. SOLOMON
Solicitor
JEFFERY S. DENNIS
Attorney
Federal Energy Regulatory
Commission
Washington, D.C. 20426

QUESTIONS PRESENTED

1. Whether the Federal Energy Regulatory Com mission (FERC), in exercising its authority under the Federal Power Act, 16 U.S.C. 791a et seq., had authority to prohibit public utilities from exercising their state- granted eminent domain authority in a discriminatory manner when responding to electrical interconnection requests.

2. Whether FERC has authority to regulate the in terconnection of electric generators to certain distri bution-level transmission facilities, where such facilities are already subject to a FERC-filed tariff and the inter connection is for the purpose of making a FERC-juris dictional wholesale sale of electric energy.

3. Whether the orders under review are imper missibly vague.

 

 

In the Supreme Court of the United States

No. 07-658

NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, ET AL., PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL ENERGY REGULATORY COMMISSION IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A1- A31) is reported at 475 F.3d 1277. The orders of the Federal Energy Regulatory Commission are reported at 104 F.E.R.C. ¶ 61,103, 106 F.E.R.C. ¶ 61,220, 109 F.E.R.C. ¶ 61,287, and 111 F.E.R.C. ¶ 61,401.

JURISDICTION

The judgment of the court of appeals was entered on January 12, 2007. A petition for rehearing was denied on June 20, 2007 (Pet. App. A37-A38). On September 11, 2007, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including November 19, 2007, and the petition was filed on that date. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Section 201 of the Federal Power Act (FPA), 16 U.S.C. 791a et seq., gives the Federal Energy Regula tory Commission (Commission or FERC) jurisdiction over the "transmission of electric energy in interstate commerce," the "sale of electric energy at wholesale in interstate commerce," and "all facilities for such trans mission or sale." 16 U.S.C. 824(b)(1). See New York v. FERC, 535 U.S. 1, 19-20 (2002). The States retain jurisdiction over "any other sale of electric energy" and "facilities used in local distribution" of electricity. 16 U.S.C. 824(b)(1). The FPA directs FERC to ensure that all rates and charges for (or in connection with) trans mission services or wholesale electric sales subject to its jurisdiction, and all rules, regulations, or practices af fecting such rates and charges, are just and reasonable and not unduly discriminatory or preferential. 16 U.S.C. 824d, 824e (2000 & Supp. V 2005).

b. "Historically, electric utilities were vertically inte grated, owning generation, transmission, and distribu tion facilities and selling these services as a 'bundled' package to wholesale and retail customers in a limited geographical service area." Public Util. Dist. No. 1 v. FERC, 272 F.3d 607, 610 (D.C. Cir. 2001). In 1996, the Commission adopted Order No. 888, which ordered the functional unbundling of wholesale generation and transmission services-that is, it required public utili ties to announce separate rates for their wholesale generation, transmission, and ancillary services.1 In particu lar, utilities were required to offer non-discriminatory, open-access transmission service, to take transmission service for their own wholesale sales and purchases un der the same general tariff applicable to others, and to separate their transmission and generation marketing functions and communications. See New York, 535 U.S. at 11. FERC based Order No. 888 on its finding "that electric utilities were discriminating in the 'bulk power markets,' in violation of 16 U.S.C. 824d, by providing either inferior access to their transmission networks or no access at all to third-party wholesalers of power." Ibid. In New York, this Court upheld Order No. 888 in its entirety.

Order No. 888 did not directly address the intercon nection of electric generating facilities and transmission facilities. The Commission recognized, however, that interconnection of generators to the grid was a critical component of open-access transmission service and was therefore subject to the basic requirement that public utilities offer comparable, non-discriminatory service under the terms of their FERC-filed open-access tariffs. See Tennessee Power Co., 90 F.E.R.C. ¶ 61,238 (2000); Standardization of Generator Interconnection Agree ments and Procedures, Order No. 2003, 104 F.E.R.C. ¶ 61,103, at ¶ 9 (2003), on reh'g, Order No. 2003-A, 106 F.E.R.C. ¶ 61,220 (2004), on reh'g, Order No. 2003-B, 109 F.E.R.C. ¶ 61,287 (2004), on reh'g, Order No. 2003- C, 111 F.E.R.C. ¶ 61,401 (2005). Initially, FERC ad dressed interconnection issues on a case-by-case basis, but that approach led to complex technical disputes about issues such as the feasibility of interconnection and responsibility for costs. See Order No. 2003, 104 F.E.R.C. ¶ 61,103, ¶¶ 10, 11. The delays caused by such disputes, the Commission found, "undermine[d] the abil ity of generators to compete in the market and provide[d] an unfair advantage to utilities that own both transmission and generation facilities." Id. ¶ 11.

2. In light of the inadequacy of a case-by-case analy sis, the Commission decided to adopt standard intercon nection procedures and a standard interconnection agreement. See Order No. 2003, 104 F.E.R.C. ¶ 61,103, at ¶ 12. After notice-and-comment rulemaking, the Commission issued Order No. 2003, which requires any public utility that owns, controls or operates facilities used for transmitting electric energy in interstate com merce to have on file with FERC, as part of its open- access tariff, standard interconnection procedures and a standard interconnection agreement applicable to all generators with a capacity of 20 megawatts or greater. See id. ¶ 11 & n.10.2

Order No. 2003 governs interconnections to any transmission facilities "that, at the time the interconnec tion is requested, may be used either to transmit electric energy in interstate commerce or to sell electric energy at wholesale in interstate commerce pursuant to a Com mission-filed [open-access tariff]." Order No. 2003, 104 F.E.R.C. ¶ 61,103, ¶ 804; see Order No. 2003-A, 106 F.E.R.C. ¶ 61,220, ¶ 710; Order No. 2003-C, 111 F.E.R.C. ¶ 61,401, ¶ 51. Thus, the order applies to "in terconnections to a 'distribution' facility" when two con ditions are satisfied: (1) "the facility is included in a public utility's Commission-filed [open-access tariff]," and (2) "the interconnection is for the purpose of facili tating a jurisdictional wholesale sale of electric energy." Order No. 2003-A, 106 F.E.R.C. ¶ 61,220, ¶ 730.

The Commission acknowledged that, under 16 U.S.C. 824(b)(1), it generally does not have jurisdiction over "facilities used in local distribution." It explained that "distribution" is an "unfortunately vague term * * * usually used to refer to lower-voltage lines that are not networked and that carry power in one direction." Or der No. 2003, 104 F.E.R.C. ¶ 61,103, ¶ 803. "Some low er-voltage facilities are 'local distribution' facilities not under [FERC] jurisdiction, but some are used for juris dictional service such as carrying power to a wholesale power customer for resale and are included in a public utility's [open-access tariff]." Ibid. With regard to facil ities that have a "dual use"-i.e., facilities used both to deliver wholesale electricity for resale and to distribute retail electricity to end users-only the use of such facil ities to facilitate a FERC-jurisdictional wholesale sale would be subject to FERC jurisdiction; States would retain authority over uses subject to their jurisdiction. See Order No. 2003-A, 106 F.E.R.C. ¶ 61,220, ¶ 735. In adopting that interpretation of its jurisdiction under the FPA, the Commission explained, it was "asserting no jurisdiction beyond what it asserted in Order No. 888." See id. ¶ 705.

As part of its mandate of non-discrimination, Order No. 2003 requires a utility, when interconnecting with an unaffiliated generator, to use efforts similar to those it typically employs on behalf of its own or an affiliate's generators to secure land rights for the customer's in terconnection facilities. Order No. 2003, 104 F.E.R.C. ¶ 61,103, ¶ 391. To obtain those rights, a utility might find it necessary to use the eminent-domain authority granted to it by a State. The Commission made clear, however, that "any use of eminent domain power must be in accordance with state law." Order No. 2003-A, 106 F.E.R.C. ¶ 61,220, ¶ 300. And a utility is required to use eminent domain to interconnect with an unaffiliated generator "only to the extent that it uses eminent do main to site Interconnection Facilities * * * for its own, or affiliated, generation." Ibid.

3. Petitioners-a group of state public utility regula tory commissions-sought review of Order No. 2003 and the orders following it. The court of appeals denied the petitions for review. Pet. App. A1-A24.

a. The court of appeals held that FERC had not ex ceeded its jurisdiction in regulating interconnections to facilities that are also used for local distribution. Peti tioners relied on Detroit Edison Co. v. FERC, 334 F.3d 48 (D.C. Cir. 2003), in which the court had rejected FERC's attempt to assert jurisdiction over unbundled retail electricity transactions because such transactions involved neither a wholesale sale of electric energy nor a transmission of electric energy in interstate com merce. In this case, by contrast, the court explained that "the issue is the inverse of Detroit Edison; Order No. 2003 applies to jurisdictional transactions only." Pet. App. A10.

The court of appeals also rejected petitioners' argu ments that Order No. 2003 exceeded the limits of the Commission's FPA jurisdiction by regulating "certain facets of the engineering and construction of facilities needed for the relevant transmissions." Pet. App. A11. The court concluded that petitioners had identified "no specific aspect of the regulations that they claim is untethered to the Commission's authority over inter state transmissions and wholesale sales." Ibid. The court further noted that while the Commission's exercise of its ordinary and "indisputable" authority under the FPA might as a practical matter impinge on non-juris dictional matters, "petitioners in this facial attack have identified no impingement that exceeds what may be encompassed in such conventional exercises of jurisdic tion." Ibid.

The court of appeals likewise rejected petitioners' contention that FERC engaged in improper "jurisdic tional 'boot-strapping'" by applying Order No. 2003 to interconnections to "dual-use" facilities (i.e., facilities used for both FERC-jurisdictional and state-jurisdic tional transactions). Pet. App. A14-A15. The court ex plained that FERC's exercise of jurisdiction is "the ex act opposite of boot-strapping," since the Commission only asserted authority over interconnections to "distri bution" facilities "when the facility is included in a public utility's Commission-filed [open-access tariff] and the interconnection is for the purpose of facilitating a juris dictional wholesale sale of electric energy." Id. at A15 (quoting Order No. 2003-A, 106 F.E.R.C. ¶ 61,220, ¶ 730).

Finally, the court of appeals rejected petitioners' challenge to the Commission's requirement that a public utility use reasonable efforts, similar to those it employs for its own or affiliated generators, to facilitate intercon nections. Pet. App. A16-A19. Petitioners suggested that, because that requirement encompassed the exer cise of eminent-domain authority, it amounted to federal "commandeering" of state eminent-domain power, con trary to New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997). The court concluded, however, that Order No. 2003 is a "far cry from what the Supreme Court found objectionable in New York and Printz." Pet. App. A16. The order "bind[s] only utilities-not state officials," id. at A18, and even then, it does "nothing more than impose a non- discrimination provision" on public utilities, id. at A17. The court emphasized that the order "explicitly leave[s] state law untouched." Ibid. "Thus the states remain completely free to continue licensing public utilities to exercise eminent domain, or to discontinue that prac tice," and "[n]othing * * * compels either continued state retention of the license, or public utilities' contin ued employment of eminent domain." Id. at A17-A18.

b. Judge Sentelle dissented in part. Pet. App. A24- A31. Although he agreed with the court's conclusion that FERC had acted within its jurisdiction in regulat ing distribution facilities, he disagreed with the decision to affirm the eminent-domain provisions of the order. In his view, "eminent domain is properly categorized as a 'substantial sovereign power' of the states, even when that power has been delegated to a public utility," id. at A28 (citation omitted), and therefore FERC may not regulate the use of state eminent-domain power in the absence of a clear statutory authorization, id. at A30. According to Judge Sentelle, Order No. 2003 exceeds FERC's statutory authority because it "will require transmission providers either to forego the use of their state-granted eminent domain power altogether, or to use this power to condemn property on behalf of unaffili ated generators." Id. at A28.

ARGUMENT

In the orders at issue here, FERC acted reasonably to establish standard procedures to address the poten tial for undue discrimination by public utilities that own, operate, or control transmission facilities against com peting electric generators seeking to interconnect to the grid. In so doing, the Commission crafted a limited non- discrimination requirement related to a public utility's exercise of its state-granted eminent-domain author ity-a requirement that does not intrude on the States' exercise and control of that power. Further, the Com mission limited its jurisdiction over interconnections to facilities that are used in a FERC-jurisdictional whole sale sale and that are already subject to a FERC-filed open-access tariff. That is precisely the same jurisdic tional determination that the Commission reached in Order No. 888, which this Court affirmed in New York v. FERC, 535 U.S. 1 (2002). The court of appeals there fore correctly upheld the Commission's orders. Its deci sion does not conflict with any decision of this Court or of any other court of appeals, and further review is not warranted.

1. Petitioners assert (Pet. 18-26) that the decision of the court of appeals allows FERC to interfere with the States' sovereign powers of eminent domain. Petition ers are incorrect. As the court of appeals explained, "the orders here leave state law completely undisturbed and bind only utilities-not state officials." Pet. App. A18. In fact, Order No. 2003 does "nothing more than impose a non-discrimination provision on public utili ties." Id. at A17. Specifically, it requires that if a State grants eminent-domain authority to a public utility, and if the public utility exercises its authority for the benefit of its own or affiliated generators, then the public utility must take the same action on behalf of independent gen erators. See Order No. 2003-A, 106 F.E.R.C. ¶ 61,220, ¶ 300.

According to petitioners (Pet. 21-23), that provision of Order No. 2003 allows FERC to "dictate" the manner in which State-granted eminent domain power is used. But as the court of appeals explained, Order No. 2003 does no such thing. Rather, it is a non-discrimination provision that has only an indirect effect on the exercise of eminent-domain powers. And the incidental effect on state authority "is surely no greater than (many would say dramatically less than) that of a federal command that, if a state hires employees for the performance of traditional governmental functions, it must pay them no less than a federally determined wage." Pet. App. A18; cf. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985) (holding that a requirement that States comply with the Fair Labor Standards Act is not "destructive of state sovereignty"). Petitioners cite vari ous cases (Pet. 19) holding that a public utility acts as an agent of the State when it exercises eminent-domain authority, but the decision below is entirely consistent with that proposition. Order No. 2003 does not prohibit or compel the exercise of eminent-domain power; it re quires only non-discrimination.

Petitioners argue (Pet. 24-26) that FERC's order compels the States to enact and enforce a federal regula tory program, in violation of the Tenth Amendment as interpreted in New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997). The "commandeering" of state governments at issue in those cases involved "requir[ing] the States in their sov ereign capacity to regulate their own citizens." Reno v. Condon, 528 U.S. 141, 151 (2000). Order No. 2003, how ever, does not compel state officials to take any action or to enforce any of FERC's regulatory requirements. On the contrary, it requires that "any exercise of eminent domain by a public utility pursuant to the orders' non- discrimination mandate be 'consistent with state law.'" Pet. App. A17 (quoting Order No. 2003-A, 106 F.E.R.C. ¶ 61,220, Large Generator Interconnection Agreement § 5.13; id. ¶ 300).3 The order "does not require [States] to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals." Condon, 528 U.S. at 151. The court of appeals correctly held that "[t]he orders here are a far cry from what the Supreme Court found objectionable in New York and Printz." Pet. App. A16-A17.

2. Petitioners renew their contention (Pet. 26-36) that Order No. 2003 exceeds FERC's jurisdiction under the FPA. In their view, the Commission's assertion of jurisdiction over interconnections to "dual-use" distribu tion facilities is inconsistent with the divided federal- state regulatory regime recognized by the statute. That claim lacks merit. In its orders, FERC exercised the jurisdiction granted to it under the FPA over transmis sion of electric energy in interstate commerce and wholesale sales of electric energy, and it fully respected the jurisdiction reserved to the States by the FPA.

Order No. 2003 applies only to distribution-level in terconnections that involve transactions subject to FERC's jurisdiction under 16 U.S.C. 824(b)(1). As the court of appeals explained, the order governs intercon nections to transmission facilities that also engage in local distribution only where the facilities in question are "included in a public utility's Commission-filed [open-access tariff]," Pet. App. A15, and "only insofar as the interconnections are for the purpose of making sales of electric energy for resale in interstate commerce," id. at A9 (quotation marks omitted). In other words, the Commission exercised its jurisdiction over interconnec tions to distribution facilities that also engage in state- regulated activity only where two criteria are met: (1) the facilities are already used for transmission of elec tric energy in interstate commerce (and are thus subject to a Commission-filed open-access tariff), and (2) the interconnection is directly connected to a wholesale sale. Both of those matters are explicitly within the Commis sion's jurisdiction under Section 824(b)(1). See New York, 535 U.S. at 16-17; FPC v. Florida Power & Light Co., 404 U.S. 453, 454 (1972); Connecticut Light & Pow er Co. v. FPC, 324 U.S. 515, 523 (1945).

3. Petitioners err in suggesting (Pet. 26-36) that the decision below conflicts with several decisions of this Court and other courts.

a. Although petitioners mention it only in passing, this Court's decision in New York-and the underlying decision of the court of appeals in Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000) (TAPS)-fully support the court of appeals' deci sion here. In New York, the Court considered FERC's Order No. 888, which asserted jurisdiction under Sec tion 824 to regulate-and apply open-access require ments to-unbundled retail transmission of electricity. 535 U.S. at 11-12; see TAPS, 225 F.3d at 691. Recogniz ing that such transmission may take place over dis tribution-level facilities that had traditionally been un der exclusive state regulation, the Commission adopted a seven-factor test to determine whether such a facility is one that meets the FPA's legal definition of "local dis tribution" (and thus remains under state regulation) or is engaged in interstate transmission (and thus is sub ject to FERC jurisdiction). See New York, 535 U.S. at 12 n.9; TAPS, 225 F.3d at 695-696. The court of appeals in TAPS, and subsequently this Court in New York, up held FERC's jurisdictional determinations in all re spects.

Here, the Commission did nothing more than exer cise the same jurisdiction that it asserted in Order No. 888 with regard to distribution-level facilities. See Or der No. 2003-A, 106 F.E.R.C. ¶ 61,220, ¶¶ 699, 705, 731 (explaining FERC's adherence to the jurisdictional con clusions reached in Order No. 888). The standard proce dures and agreement of Order No. 2003 will apply to an interconnection to a distribution-level facility only if that facility is already subject to a Commission-filed open-ac cess tariff, pursuant to FERC's jurisdiction under Order No. 888, and the interconnection is for the purpose of making a wholesale sale. FERC correctly concluded that applying the interconnection rules to facilities al ready subject to a FERC-filed open-access tariff would "properly respect the jurisdictional bounds recognized by the courts in upholding Order No. 888." Order No. 2003-C, 111 F.E.R.C. ¶ 61,401, ¶ 51. Further exercising caution to ensure that it was acting within its FPA juris diction, the Commission appropriately required that the distribution-level interconnection be for the purpose of making a jurisdictional wholesale sale. See TAPS, 225 F.3d at 696 (Section 824(a) "makes clear that all aspects of wholesale sales are subject to federal regulation, re gardless of the facilities used.").

In addition to upholding the basic jurisdictional de terminations that FERC followed here, New York also confirms the Commission's ability to draw reasonable lines to define the extent of its own jurisdiction over wholesale sales and interstate transmission. See New York, 535 U.S. at 16-17. The Commission's decision to tie its exercise of jurisdiction over interconnections to both its FPA jurisdiction over transmission of electric energy in interstate commerce (by requiring that the distribution-level facility already be subject to a FERC open access tariff), and to its FPA jurisdiction over wholesale sales, is the essence of reasonable line-draw ing. Cf. Niagara Mohawk Power Corp. v. FERC, 452 F.3d 822, 828 (D.C. Cir. 2006) ("[I]n drawing the juris dictional lines in this area, some practical accommoda tion is necessary."), cert. denied, 127 S. Ct. 2129 (2007).

b. Petitioners assert (Pet. 31-32) that the decision of the court of appeals is inconsistent with that court's prior holding in Detroit Edison Co. v. FERC, 334 F.3d 48 (D.C. Cir. 2003). Even if petitioners were correct, such an intra-circuit conflict would not warrant this Court's review. See Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam). In any event, as the court of appeals explained, this case is the exact opposite of Detroit Edison. There, FERC approved a tariff that would have placed unbundled retail distribution service (as opposed to transmission service) under FERC juris diction. 334 F.3d at 51-52. The court of appeals was unconvinced by FERC's claim in that case that FERC could assert jurisdiction over all services occurring on facilities used for both wholesale and retail distribution, since the retail distribution service FERC asserted au thority over "involved neither jurisdictional sales nor jurisdictional transmission." Pet. App. A10. Here, by contrast, FERC applied Order No. 2003 "to jurisdic tional transactions only." Ibid.4

c. Petitioners further assert (Pet. 28-30) that the decision of the court of appeals conflicts with the Elev enth Circuit's decision in Southern Co. v. FCC, 293 F.3d 1338 (2002). That case did not involve the FPA, which the court addressed only in dicta. See id. at 1344. Its discussion of the statute simply pointed out that regula tion of local distribution facilities is "primarily in the hands of state and local authorities," ibid., an unremark able proposition that is fully consistent with the decision below.

4. Finally, petitioners suggest (Pet. 36-38) that the Commission's order is arbitrary and capricious because, in their view, it does not specify what distribution-level facilities are subject to an open-access tariff and are therefore covered by Order No. 2003. Although peti tioners do not identify the precise basis for their chal lenge, they appear to be arguing that the order is arbi trary because it is unreasonably vague. That claim lacks merit. As the court of appeals noted, the Commission acknowledged that while there was some potential for uncertainty, most cases would present no controversy, and in the event of a dispute the Commission would rely in the first instance on public utilities to provide the nec essary information, with the Commission resolving any further disputes. Pet. App. A15. The court determined that the record revealed "no grounds for upsetting the Commission's judgment" on that point. Ibid. That case- specific conclusion does not warrant further review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

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PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice

CYNTHIA A. MARLETTE
General Counsel
ROBERT H. SOLOMON
Solicitor
JEFFERY S. DENNIS
Attorney
Federal Energy Regulatory
Commission

 

 

JANUARY 2008

1 See generally Promoting Wholesale Competition Through Open Access Non-discriminatory Transmission Servs. by Pub. Utils.; Recov- ery of Stranded Costs by Pub. Utils. and Transmitting Utils., Order No. 888, 75 F.E.R.C. ¶ 61,080, at 61,238 (61 Fed. Reg. 21,540 (1996)), clarified, 76 F.E.R.C. ¶ 61,009, at 61,024, and 76 F.E.R.C. ¶ 61,347, at 62,646 (1996), orders on reh'g, Order No. 888-A, 78 F.E.R.C. ¶ 61,220, at 61,951 (62 Fed. Reg. 12,274 (1997)), Order No. 888-B, 81 F.E.R.C.

¶ 61,248, at 62,069 (1997), and Order No. 888-C, 82 F.E.R.C. ¶ 61,046 (1998), aff'd sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).

2 In a separate rulemaking, the Commission established interconnec tion procedures and a standard interconnection agreement applicable to small generators with a capacity of less than 20 megawatts that seek interconnection to the transmission system of a public utility. See Stan dardization of Small Generator Interconnection Agreements and Pro cedures, Order No. 2006, 111 F.E.R.C. ¶ 61,220, on reh'g, Order No. 2006-A, 113 F.E.R.C. ¶ 61,195 (2005), on clarification, Order No. 2006-B, 116 F.E.R.C. ¶ 61,046 (2006).

3 As a result, petitioners are incorrect when they suggest (Pet. 25) that FERC's order will require public utilities to broaden the use of em inent-domain authority beyond that authorized by state law.

4 In their discussion of Detroit Edison, petitioners also contend (Pet. 32-36) that by including certain construction, equipment, and engineer ing requirements in its standard interconnection procedures and agree ment, FERC is asserting jurisdiction over the actual physical distribu tion facility itself, rather than just the interconnection transaction. The court of appeals correctly rejected that argument, explaining that peti tioners had identified no requirements of Order No. 2003 that are not directly connected to FERC's undisputed authority over interstate transmission and wholesale sales. Pet. App. A11. Petitioners point to no such requirements here.