Petition for Review – Challenge to FERC Ruling

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7^TH Circuit Court of Appeals

Case Name: MISO Transmission Owners, et al v. Federal Energy Regulatory Commission, et al

Case No.: 14-2153; 14-2533; 15-1316

Officials: POSNER, EASTERBROOK, and HAMILTON, Circuit Judges.

Focus: Petition for Review – Challenge to FERC Ruling

Challenges to FERC ruling on rights of first refusal denied

“Granting a right of first refusal to build a project makes sense when the grantee clearly is best suited to build it, so that it would be a waste of time to invite and conduct competitive bidding. Apparently that used to be the situation in what is now MISO’s region, but by 2011 FERC was convinced that competition among firms for the right to build transmission facilities would result in lower rates to consumers of electricity. There would be a low bidder, and the lower his bid and therefore (in all likelihood) the cost of the facility he built, the lower would be the rates charged consumers of the electricity transmitted by the facility. In contrast, when the local firm has a right of first refusal an out‐ sider will have little incentive to explore the need for a new transmission facility because the local firm would be likely to say to the outsider (sotto voce) “thank you very much for identifying, at no cost to me, a lucrative opportunity for me to exploit,” and thus the outsider would be unable to recoup the cost of his research into the need for the new facility. See Order No. 1000, supra, 136 FERC ¶ 61051 at P 257; see also South Carolina Public Service Authority v. FERC, 762 F.3d 41, 72 (D.C. Cir. 2014).”

Petition for Review Denied

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.