FERC's New PURPA Rules Upheld, NEPA Issue Remanded

On September 5, 2023, the Ninth Circuit issued an order in SEIA v. FERC, remanding, without vacatur, the Federal Energy Regulatory Commission's (FERC) revised PURPA regulations implemented through Order No. 872.¹ The court upheld the order on the basis that FERC's challenged modifications were not "arbitrary and capricious." The court, however, found FERC non-compliant with the National Environmental Policy Act's (NEPA) requirement that, at the least, an Environmental Assessment (EA) be performed. Although finding a "serious omission" in failing to conduct a NEPA review, the court also determined that there would be significant disruptive consequences if the order were vacated. The court indicated that it was not unlikely that FERC would adopt the same rule on remand.