An Electrifying Expansion of Judicial Review of Agency Actions in PSEG Energy Resources & Trade LLC

Abstract

The Federal Energy Regulatory Commission (“FERC”) issues orders on electricity market auction results to ensure that electricity rates are just and reasonable. FERC issued an order accepting the results of the 2008 ISO New England forward capacity auction. PSEG Energy Resources (“PSEG”), a participant in the auction, challenged the order on the grounds that it resulted in undue discrimination for the most necessary resources for reliability and violated the basic market policy goals. When FERC rejected this challenge, PSEG petitioned for review of the FERC order. The United States Court of Appeals for the D.C. Circuit reviewed the FERC order under a two-step Chevron U.S.A. v. Natural Resources Defense Council-like analysis and the agency’s failure to respond to public comments under the Administrative Procedure Act’s arbitrary and capricious standard. This Comment argues that in PSEG Energy Resources & Trade LLC v. Federal Energy Regulatory Commission, the D.C. Circuit’s review of the FERC order represents an expansion of judicial review of administrative action.