Utility Workers Union of America Local 464 and Robert Clark v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2018 Decided July 24, 2018
No. 16-1068
U TILITY W ORKERS UNION OF A MERICA LOCAL 464 AND
R OBERT C LARK,
P ETITIONERS
v.
FEDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
CPV TOWANTIC , LLC AND NEW ENGLAND P OWER
GENERATORS ASSOCIATION, INC .,
INTERVENORS
Consolidated with 16-1408
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Daniel J. Sponseller argued the cause and filed the briefs
for petitioners.
Ross R. Fulton, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. On the brief
were David L. Morenoff, General Counsel, Robert H. Solomon,
Solicitor, and Nicholas M. Gladd, Attorney.

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Before: R OGERS , M ILLETT and P ILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, Circuit Judge: Petitioners challenge the failure
of the Federal Energy Regulatory Commission (FERC or
Commission) to account for the effect on electricity prices of
the permanent retirement of the Brayton Point Power Station,
a coal-fired electric plant in Somerset, Massachusetts. Brayton
Point’s owners announced the closure just before the New
England regional independent system operator ran its eighth
annual forward capacity auction (FCA 8)—too late for other
wholesale electricity suppliers to participate in the auction and
pick up the slack. The resulting constricted supply contributed
to a spike in the auction clearing price, to the benefit of the
owner’s other plants and to the detriment of retail electricity
customers. Petitioners and others challenged the closure before
the Commission as an attempt to manipulate the results of FCA
8. See 16 U.S.C. § 824v; 18 C.F.R. § 1c.2. After the
Commission deadlocked and the FCA 8 auction results took
effect by operation of law, consumer advocates sought our
review. But, in the absence of final agency action, we lacked
jurisdiction to consider that petition. See Public Citizen, Inc. v.
FERC, 839 F.3d 1165 (D.C. Cir. 2016).
Meanwhile, in two later proceedings, petitioners asked
FERC to correct for what they assert were effects of Brayton
Point’s illegal closure on the next two annual forward capacity
auctions (FCA 9 and FCA 10). FERC denied the petitions and
approved the FCA 9 and FCA 10 results as just and reasonable
because “the record [was] devoid of any evidence” that the
claimed manipulation in the earlier cycle affected them. ISO
New England, Inc., 151 FERC ¶ 61,226, 2015 WL 3810715, at
*5-6 (2015); ISO New England, Inc., 155 FERC ¶ 61,273, 2016

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WL 3439781, at *10-11 (2016). Because no record evidence
establishes a causal link between the claimed manipulative
closure of Brayton Point and the clearing prices of FCA 9 and
FCA 10 that FERC approved, we hold that petitioners lack
standing to challenge FERC’s acceptance of those results.
I.
Petitioners here are the Utility Workers Union of America
Local 464 (Union) and its President, Robert Clark. Both Clark
and the Union’s members are retail electricity customers in
New England who claim that high clearing prices for future
capacity to generate electricity in FCA 9 and FCA 10 increased
the cost of their retail electricity service. They challenge
FERC’s orders approving the results of those wholesale
auctions as just and reasonable under Section 205 of the
Federal Power Act (FPA). See 16 U.S.C. § 824d. They
contend that FERC’s determination was contrary to the FPA,
and unsupported by substantial evidence or reasoned decision
making in violation of the Administrative Procedure Act. See
id.; 5 U.S.C. § 706(2)(A), (E); see also 16 U.S.C. § 825l(b).
Petitioners stake their injury on what they claim were
inflated capacity prices. Wholesale obligations to stand ready
to generate electricity during a specified period if needed—
contracts for future “capacity”—are locked in by regional
forward capacity auctions held more than three years ahead of
time. See generally New England Power Generators Ass’n v.
FERC, 881 F.3d 202, 205-06 (D.C. Cir. 2018) (describing
forward capacity auctions). For example, FCA 8 occurred in
February 2014 and determined the capacity supply obligations
generators would assume for one year, beginning in June 2017.
That three-year lead time exists to “provide for a planning
period for new entry and allow potential new capacity to
compete in the auctions.” Maine Pub. Utils. Comm’n v. FERC,

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520 F.3d 464, 469 (D.C. Cir. 2008) (quoting Devon Power,
LLC, 115 FERC ¶ 61,340 at 62,306 (2006)).
The rules governing these auctions are complex. See
generally ISO-NE Tariff § III.13; Joint App’x (J.A.) 407-41.
They provide for simultaneous auctions both for the entire
regional system and for various subregions. During the
relevant timeframe, the rules allowed a generator to “retire”
permanently from the capacity market, excluding it from all
future auctions. The rules also included an “administrative
pricing” provision that could override auction results if an
auction proved insufficiently competitive. In times of
“insufficient competition,” the Tariff also permitted the
Commission to approve higher capacity clearing prices for new
entrants to ensure that capacity needs are met. J.A. 38.
The eighth forward capacity auction for the New England
power pool, run in February 2014, yielded much higher prices
than had the first seven. See Public Citizen, 839 F.3d at 1168;
Markets: Results of the Annual Forward Capacity Auctions,
ISO New England, https://iso-ne.com/about/key-stats/markets
(last visited July 12, 2018). Market administrators blamed an
“abrupt change in the supply-demand balance,” caused in large
part by a cluster of generators that retired “[w]ell after the
deadline for seeking to qualify new resources to participate.”
Stephen J. Rourke, ISO New England, Inc. Forward Capacity
Auction Results Filing, Attachment B at 7-8 (Feb. 28, 2014)
(J.A. 35-36). The largest of them, accounting for more than
half the retiring capacity, was Brayton Point.
When the market administrator sought FERC’s approval
of the FCA 8 results, petitioners and others protested. They
contended that Brayton Point’s owners withdrew the plant’s
capacity too late for the market to attract new suppliers, thereby
raising the FCA 8 clearing price to inflate payments to the

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owners’ other generators, and that those actions constituted
illegal market manipulation. See Mot. to Intervene and Protest
of UWUA Local 464 and Robert Clark, In re: ISO-NE Eighth
Forward Capacity Auction Results Filing, FERC Dkt. No. ER
14-1409, at 5-8 (Apr. 15, 2014) (UWUA FCA 8 Protest); 16
U.S.C. § 824v; 18 C.F.R. § 1c.2. Petitioners offered evidence
to show that Brayton Point could have continued to operate
profitably, and that its retirement foreseeably earned the
owners a windfall at consumers’ expense. See UWUA FCA 8
Protest at 9-15.
The Commission—acting with only four members at the
time—deadlocked two-to-two over whether to approve the
FCA 8 results. Because that deadlock did not constitute agency
action resolving the issue, the results went into effect “by
operation of law.” Public Citizen, 839 F.3d at 1168. And,
absent final agency action, we lacked jurisdiction to review the
matter. Id. at 1172, 1174. Once the Commission regained a
fifth member, the Union renewed its protest of the auction
results. More than three years later, FERC has yet to act on
that renewed protest.
Meanwhile, preparations began for the following year’s
auction, FCA 9. Brayton Point, now permanently retired, did
not participate. New resources did. ISO New England, Inc.,
151 FERC ¶ 61,226, 2015 WL 3810715, at *5-6. Market
administrators certified the system-wide auction as competitive
(although demand outstripped supply and triggered
administrative pricing in one subregion). Id. at 62,466, 62,468.
FCA 9 yielded prices above the historical baseline, but lower
than FCA 8’s.
The annual cycle repeated. FCA 10 took place in February
2016 without Brayton Point. More new resources joined the
fray, and administrators certified the results as competitive

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throughout the entire region. See 155 FERC ¶ 61,273, 2016
WL 3439781, at *2. The clearing price was lower than both
FCA 8’s and FCA 9’s, but above that of prior auctions.
The Commission approved the FCA 9 and FCA 10 results
as “just and reasonable” under FPA Section 205, 16 U.S.C.
§ 824d. See generally ISO New England, Inc., 151 FERC
¶ 61,226, 2015 WL 3810715; ISO New England, Inc., 155
FERC ¶ 61,273, 2016 WL 3439781. Petitioners objected to
both decisions, again asking the Commission to scrutinize
Brayton Point’s retirement for illegal market manipulation.
They raised “essentially the same” arguments as before, Pet’rs’
Br. 17, and largely incorporated by reference the evidence,
adduced in their challenge to FCA 8, that Brayton Point could
have continued to operate profitably. The Commission
rejected those renewed protests and denied petitioners’
requests for rehearing. In approving the FCA 9 results, FERC
declined to “consider arguments regarding FCA 8” and was
“not persuaded . . . that market manipulation affected FCA 9,
as the record is devoid of any evidence to that effect.” 151
FERC ¶ 61,226, 2015 WL 3810715 at *5-6. In the alternative,
the Commission saw no evidence that Brayton Point’s
retirement was improper and disavowed any authority to
compel Brayton Point to participate in FCA 9. Id. Petitioners’
FCA 10 protest, and the Commission’s response, largely
rehashed the same issues. See 155 FERC ¶ 61,273, 2016 WL
3439781.
Petitioners now seek review of the Commission’s orders
approving the FCA 9 and FCA 10 results. They contend that
the Commission erred by failing to credit, further investigate,
or refute their evidence that Brayton Point’s retirement was
illegal market manipulation.

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II.
Our analysis begins and ends with the threshold question
whether petitioners have established standing to challenge the
orders under review. We conclude that they have not.
The “irreducible constitutional minimum” of standing has
three parts: injury in fact, causation, and redressability.
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The
party invoking the federal courts’ jurisdiction bears the burden
of establishing each of those elements “with the manner and
degree of evidence” appropriate to the posture of the litigation.
Lujan, 504 U.S. at 561. Where, as here, a case comes to us on
a petition directly from an agency, the petitioner’s “burden of
production . . . is accordingly the same as that of a plaintiff
moving for summary judgment in the district court: it must
support each element of its claim to standing ‘by affidavit or
other evidence,’” including whatever evidence the
administrative record may already contain. Sierra Club v.
EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002) (quoting Lujan,
504 U.S. at 561). To promote orderly adversarial resolution
when our jurisdiction may be in doubt, we require petitioners
to do the necessary work of “explain[ing] and substantiat[ing]”
claims of standing that are not self-evident (and could not be
reasonably mistaken as such) in their opening briefs. Sierra
Club, 292 F.3d at 900-01; see D.C. Cir. Rule 28(a)(4).
The Union asserts associational standing on behalf of its
members who are retail electricity customers in the relevant
market. See Hunt v. Wash. State Apple Adver. Comm’n, 432
U.S. 333, 342-43 (1977). Petitioners must establish that either
Clark or at least one Union member meets all three
requirements for individual standing. Id.; see Tozzi v. U.S.

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Dep’t of Health & Human Servs., 271 F.3d 301, 310 (D.C. Cir.
2001).
Petitioners’ claimed injury-in-fact is their actual economic
loss from electricity bills they contend were unjustly high. J.A.
169, 353; see Humane Soc’y of the U.S. v. Vilsack, 797 F.3d 4,
9 (D.C. Cir. 2015). But they must also show “a causal
connection between the injury and the conduct complained of,”
and a likelihood that a favorable decision would redress the
injury. Lujan, 504 U.S. at 560. The causation element requires
evidence of a substantial probability that “the challenged acts
of the defendant” caused their injury. Fla. Audubon Soc’y v.
Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (en banc); see
Mideast Sys. & China Civil Constr. Saipan Joint Venture, Inc.
v. Hodel, 792 F.2d 1172, 1178 (D.C. Cir. 1986). The
challenged acts—or, in this case, omissions—at the heart of all
of petitioners’ claims are the Commission’s failures to take
account of their evidence and to decide their claim that Brayton
Point’s retirement constituted illegal market manipulation. See
Pet’rs’ Br. 6, 28; Oral Arg. Rec. 59:10-1:00:20. Petitioners
have no other objection to the results of FCA 9 or FCA 10.
In petitioners’ view, their evidence and arguments about
Brayton Point’s retirement were “central to determining the
legality of” FCA 9’s and FCA 10’s higher-than-normal prices.
Pet’rs’ Br. 28. If Brayton Point’s retirement was market
manipulation, they assert, it follows that, but for such illegal
action, Brayton Point would have participated in FCA 9 and
FCA 10. For purposes of assessing standing, we assume
petitioners’ success on the merits of their claim that, under a
lawful state of affairs, Brayton Point would have participated
in both auctions. See LaRoque v. Holder, 650 F.3d 777, 785
(D.C. Cir. 2011). But petitioners still must make some showing
that an unlawful Brayton Point retirement in early 2014 skewed
the results of the auctions conducted in 2015 and 2016. The

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Commission maintains that any such theory is undercut by the
economics of the forward capacity marketplace, in which
bidders are presumed to respond to relevant variables that
change from year to year, including competitors exiting the
market. Absent any evidence to establish a “substantial
probability” that Brayton Point’s retirement affected the results
of FCA 9 and FCA 10, Sierra Club, 292 F.3d at 902, petitioners
have not met their burden to show that the Commission’s
alleged failure to scrutinize the retirement for potential
manipulation played any part in causing any injuries petitioners
suffered from those auctions.
A petitioner seeking our direct review of agency action
cannot rest on bare assertions; it must “identify in th[e] record
evidence sufficient to support its standing to seek review or, if
there is none because standing was not an issue before the
agency, submit additional evidence to the court of appeals.” Id.
at 899. Petitioners have done neither. They have made only
conclusory assertions—both before the Commission and in
their briefs—that Brayton Point’s absence shifted the results of
FCA 9 by “approximately $1 billion” and the results of FCA
10 by “an amount estimated to exceed $400 million.” Mot. to
Intervene and Protest of UWUA Local 464 and Robert Clark at
6, In re: ISO New England Inc. Tenth Forward Capacity
Auction Results Filing, FERC Dkt. No. ER 16-1041 (Apr. 14,
2016) (J.A. 357); see Pet’rs’ Br. 29-30; Pet’rs’ Reply Br. 6.
They proffer no evidence that Brayton Point’s retirement had
those claimed effects—or any effect—on the outcomes of FCA
9 and FCA 10. The administrative record contains no
supporting data, no market analyses, and no attempts to trace
or quantify the impact of Brayton Point’s absence. And
petitioners’ briefing in this court makes no effort to fill that
gap—they offer no new affidavits and no explanation of the
market dynamics that might support their theory of causation.
Indeed, petitioners acknowledged at oral argument that their

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briefs provided figures without underlying support, whether by
affidavit to us or in the agency record. Oral Arg. Rec. at 23:00-
24:50. “[W]e require more than representations of counsel” to
establish standing. Sierra Club, 292 F.3d at 901.
The FCA 8 proceedings offer an illuminating
counterpoint. We do not doubt that electricity consumers had
standing to challenge the Commission’s handling of Brayton
Point’s retirement in that proceeding.1 But that retirement
came just before FCA 8, after the deadline for new entrants to
participate. That means that the plant’s retirement necessarily
shrank a finite pool of eligible bidders, and the constricted
supply foreseeably elevated the market’s clearing price.
Petitioners introduced economic analysis to identify and
quantify that harm. See UWUA FCA 8 Protest, Exhibit A:
Affidavit of Paul Chernick. By the time of FCA 9 and FCA 10,
however, market actors had had a year or more to respond to
the news of Brayton Point’s retirement and to offer new
capacity in those auctions. Those new entrants’ participation
may well have offset the loss of available capacity from
Brayton Point’s retirement; if Brayton Point had participated,
those new entrants might not have. Petitioners adduced no
expert opinion or other evidence to disentangle and identify a
net injury from those crosscutting dynamics. Because
petitioners brought forward no evidence of a relationship
between Brayton Point’s shutdown in claimed manipulation of
FCA 8 and the clearing prices in the next two auctions, the
causation element of their standing to press their challenges to
those auctions is not established.
1 Petitioners’ long-pending request that the full Commission
revisit Brayton Point’s retirement in the FCA 8 proceedings has yet
to be resolved. We trust the Commission will give it appropriate
consideration without further delay.

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It might seem intuitive, given the laws of supply and
demand, that the non-participation of a large plant like Brayton
Point would exert some upward pull on auction prices. Again,
that logic might suffice in relation to FCA 8, given that Brayton
Point retired after the deadline for other suppliers to participate
in that auction. But in this context, where petitioners challenge
successive forward capacity auctions exclusively by reference
to events during FCA 8, the link is missing. New England’s
forward capacity markets, with a cycle of annual auctions
conducted three years before generators assume the resulting
obligations, are spaced so as to permit the market to account
and correct for the events of the previous auction. See Maine
Pub. Utils. Comm’n, 520 F.3d at 469 (stating that the auctions’
design “provide[s] for a planning period for new entry and
allow[s] potential new capacity to compete in the auctions”).
And the ground rules of each auction are complex, with
possible sub-regional pricing differences and administrative
pricing overrides to counteract insufficient competition. We
cannot simply assume that the results of one auction affect the
market-clearing auction price the following year; auction rules
give those prior results no direct role in the calculus, and
petitioners have provided no evidence of a causal role. In this
context, petitioners erred in contending that it fell to FERC to
show a lack of effect. See Pet’rs’ Br. 28-30. Even though our
standing analysis assumes, in petitioners’ favor, that Brayton
Point’s retirement was unlawful, it was petitioners’ burden to
put forward some credible basis for concluding that the
retirement reverberated to their detriment in FCA 9 and FCA
10. Because they did not carry it, they have failed to show
causation.

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∗ ∗ ∗
In view of petitioners’ failure to establish their standing
to challenge the final orders at issue here, we dismiss the
petitions for review.
So ordered.

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