New Mexico Attorney General v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2006 Decided October 13, 2006
No. 04-1398
NEW M EXICO ATTORNEY GENERAL ,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION ,
RESPONDENT
SOUTHWEST POWER POOL , I NC ., ET AL .,
I NTERVENORS
Consolidated with
04-1399
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Paul L. Zimmering argued the cause for petitioners. With
him on the briefs were Michael R. Fontham, Noel J. Darce,
Stuart M. Bluestone, Deputy Attorney General, Attorney
General’s Office for the State of New Mexico, and Jeff Taylor,
Assistant Attorney General.
Beth G. Pacella, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the

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brief were John S. Moot, General Counsel, and Robert H.
Solomon, Solicitor. Lona T. Perry, Attorney, entered an
appearance.
Michael E. Small argued the cause and filed the brief for
intervenor Southwest Power Pool, Inc.
Before: SENTELLE, ROGERS, and GARLAND , Circuit Judges.
P ER CURIAM: By orders issued February 10, 2004, and
October 1, 2004, the Federal Energy Regulatory Commission
(FERC) conditionally approved, subject to the submission of
further compliance filings, Southwest Power Pool’s (SPP’s)
application for recognition as a Regional Transmission
Organization. See Southwest Power Pool, 106 F.E.R.C. ¶
61,110 (2004), order on reh’g, 109 F.E.R.C. ¶ 61,010 (2004).
On November 26, 2004, the Petitioners filed the instant petitions
for review, challenging the February 10 and October 1, 2004
orders. On January 24, 2005, FERC issued an order accepting
SPP’s compliance filing on the ground that it satisfied the 2004
orders. See Southwest Power Pool, 110 F.E.R.C. ¶ 61,046
(2005). The Petitioners never sought review of the January 24,
2005 order.
The Petitioners’ failure to seek review of the January 2005
order deprives this court of jurisdiction to hear their challenge.
Section 313(b) of the Federal Power Act provides that a party
seeking judicial review of a FERC order must be aggrieved by
that order. See 16 U.S.C. § 825l(b). “A party is aggrieved
within the meaning of § 313(b) if it can establish both the
constitutional and prudential requirements for standing.” Public
Util. Dist. No. 1 v. FERC, 272 F.3d 607, 613 (D.C. Cir. 2001).
In DTE Energy, we held that a party petitioning for review of an
order that is “conditional, subject to a further compliance filing”
can “show no injury-in-fact” -- and hence cannot satisfy the

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requirements of constitutional standing -- because such an order
is “without binding effect.” DTE Energy Co. v. FERC, 394 F.3d
954, 960-61 (D.C. Cir. 2005); see Transmission Agency of N.
Cal. v. FERC, No. 05-1400, slip op. at 1-2 (D.C. Cir. Mar. 13,
2006); California Dep’t of Water Res. v. FERC, 306 F.3d 1121,
1125-26 (D.C. Cir. 2002). It is “not until . . . the Commission
accept[s] the compliance filing, that [Petitioners can]
demonstrate actual injury.” DTE Energy, 394 F.3d at 961.
The fact that FERC accepted SPP’s compliance filing after
the Petitioners sought judicial review of the 2004 orders is
insufficient, of itself, to cure the defect in the Petitioners’
request for judicial intervention. See Transmission Agency of N.
Cal., No. 05-1400, slip op. at 1-2. “Standing is assessed at the
time the action commences, i.e., in this case, at the time
[Petitioners] sought relief from an Article III court.” Entergy
Servs., Inc. v. FERC, 391 F.3d 1240, 1245 (D.C. Cir. 2004)
(internal quotation marks omitted); see Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 191 (2000).
Because the orders from which relief was sought were
“conditional, subject to a further compliance filing,” the
Petitioners lacked standing at the time the action commenced.
DTE Energy, 394 F.3d at 960. Although the Petitioners would
have had standing to petition for review of the January 2005
order that accepted the SPP’s further filing, and in so doing to
challenge the 2004 interlocutory orders upon which that order
was based, see Ciralsky v. CIA, 255 F.3d 611, 668 (D.C. Cir.
2004), they failed to file the necessary petition for review.
Accordingly, the petitions must be dismissed for lack of
jurisdiction.
Dismissed.

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