The D.C. Circuit published two opinions in the week of January 13th. Both involved FERC, and the more interesting of the two raised questions about standing doctrine.

Industrial Energy Consumers of America v. FERC was the standing case. The petitioners, various organizations representing energy consumers, petitioned for review of FERC orders granting stage one approval of a public utility’s request for a type of rate incentive known an as abandonment incentive. The petitioners were concerned about whether the abandonment incentive would raise electricity rates for them. In an opinion by Senior Judge Rogers, the D.C. Circuit held that the petitioners lacked standing to sue. As Judge Rogers put it, “[p]etitioners claim injury from higher rates that [the utility] may one day charge consumers if it abandons the Project.” And that was not enough to demonstrate an imminent injury in fact.

Although there was some D.C. Circuit authority that seemed to support the petitioners’ claim of standing, Judge Rogers distinguished it as involving “concrete, imminent harms.” By contrast, the petitioners faced only the possibility of “higher future rates” and would “have an opportunity to challenge the prudence of costs [the public utility] seeks to recover” during the second stage of the approval process.

Judge Henderson wrote a concurring opinion that addressed the relationship between standing and ripeness and questioned associational standing. This case, Judge Henderson argued, showed the folly of separating constitutional ripeness from constitutional standing analysis. To the extent that ripeness doctrine does any independent work, it’s a prudential doctrine, but that only raises another question: what is the basis for a prudential decision not to adjudicate a “jurisdictionally sufficient case”? As Judge Henderson put it, “[p]rudential ripeness does not appear to fit the Supreme Court’s contemporary legal formalism” concerning federal jurisdiction. And while the Supreme Court has not overruled associational standing doctrine, “there is good reason to believe that associational standing” is constitutionally suspect too: “With a large enough membership, an association could potentially claim universal standing to challenge every statute up and down the U.S. Code.”

American Whitewater v. FERC addressed a conservation organization’s petition for review of FERC orders allowing the owner of a hydroelectric project to surrender its license. FERC has statutory authority to impose conditions when a license is surrendered. The petitioner argued that FERC should have taken a harder look at the possibility of requiring that two dams be removed. If the dams were removed, the organization’s members would be able to use the Salmon Falls River for recreation. The D.C. Circuit, in an opinion by Judge Henderson, concluded that FERC adequately considered the option to remove the dams: “the Surrender Order and Rehearing Order supplemented the EA and discussed the benefits and drawbacks of dam removal in detail, going well beyond what NEPA requires absent a significant impact on the environment.”