The U.S. Court of Appeals for the D.C. Circuit upheld the mostsignificant aspects of FERC Orders 888 and 889 in a ruling releasedon Friday. “Finding few defects in the orders, we uphold them innearly all respects,” the court stated in its decision(Transmission Access Policy Study Group, et al. v. FERC No.97-1715).

In the April 1996 orders, FERC used its authority under theFederal Power Act, sections 205 and 206, to require all publicutilities owning or controlling power transmission facilities tooffer non-discriminatory open access transmission service. Thelengthy court ruling addressed a large number of issues, rangingfrom FERC’s authority to require open access to stranded costrecovery and compliance with the National Environmental Policy Act.

“In the end, we affirm the orders in all respects except two: weremand for FERC to explain its treatment of energy costs in thestranded cost market option (Section V.A.5.c) and to provide areasonable cap on contract extensions under existing customers’right-of-first-refusal (Section VIII.E)…

“…[W]e hold that Order 888’s open access requirement isauthorized by and consistent with the FPA and the Takings Clause,”the decision stated.

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