This is a key point.
Opt-outs looked legally unnecessary in FERC orders after the SCOTUS opinion in FERC v. EPSA, and now with today's DC Cir decision in NARUC v. FERC there's a path open for FERC to close opt-outs in future rules concerning ISO/RTO access.
For FERC rules addressing something broader than ISO/RTO market access, however, there's not a lot to point to in today's decision. I expect to see a lot of debate over the implications in the months ahead.
In plain English:
Some states block demand response (DR) and distributed energy resources (DERs) from participating in FERC's wholesale electricity markets. But today's decision suggests FERC can require open access to its wholesale markets without any state-level opt-outs.
That matters because some states want to block DR or DERs for reasons unrelated to principled differences of opinion over jurisdictional boundaries in energy law.
FERC didn't try to stop them before.
Now it looks like FERC can do that under current law.
Nevertheless, how far FERC can push its reach into distributed resources and other grid-edge issues remains unclear and arguably hasn't been expanded today.
Open access to its markets looks fine, but reaching any farther raises tough questions for the future.
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