February 7, 2020
ESA and Allies Defend FERC Order 841 at the DC Circuit
ESA, AEE, and SEIA filed a brief in support of FERC’s defense of its landmark rule to remove barriers to energy storage, Order 841. Petitions from NARUC and other organizations have challenged Order 841 as an overreach of federal authority into state affairs, due to the rule’s directive to establish a means of wholesale market participation for distributed energy storage. In the brief, ESA and others argue that Order 841 is consistent with long-standing precedents regarding the division of federal and state regulatory authority and the regulation of wholesale services provided over distribution facilities by FERC. Moreover, FERC is fulfilling its responsibility under the Federal Power Act (FPA) to ensure rates, terms, and conditions of electric service are just, reasonable, and not unduly discriminatory; were Order 841 overturned, it would give states an effective “veto” over distributed energy storage access to wholesale electric markets, inconsistent with its duty under the FPA.