US Court of Appeals for DC circuit upholds FERC Order 841 in victory for batteries


On July 10, the U.S. Court of Appeals for the D.C. Circuit ruled that states cannot ban distributed energy resources (DERs) located on their electrical distribution networks and retail systems from participating in wholesale markets.

The opinion, which was filed by Circuit Judge Wilkins states:

In this consolidated action, the Court must once again referee the Federal Power Act’s jurisdictional line separating the Federal Energy Regulatory Commission’s jurisdiction over the federal wholesale market and States’ jurisdiction over facilities used in local distribution. This time, Petitioners argue FERC is off-sides in Order No. 841 by prohibiting States from barring electric storage resources on their distribution and retail systems from participating in federal markets. We find no foul here, so we deny the Petitions.

Petitioners included the National Association of Regulatory Utility Commissioners (NARUC), the American Public Power Associations, National Rural Electric Cooperative Association, Edison Electric Institute and American Municipal Power.


In February 2018, FERC issued Order 841, which mandated that markets (ISOs and RTO) create rules that allow for energy storage to participate in the wholesale electricity market. The order covered all forms of energy storage including storage at the transmission level but also behind-the-meter (BTM) storage and storage on the distribution system. Aggregated BTM storage can be used to help balance the grid and provide other grid services.

Related: Residential PV + batteries as wholesale energy market suppliers are just the ‘tip of the spear’

Broadly, the petitioners argued that FERC was overstepping into what they said should be state jurisdiction. The DC Court of Appeals disagreed.

Related: FERC upholds order opening markets to energy storage

In response to the news, Greg Wetstone, CEO of the American Council on Renewable Energy issued the following statement:

“During a time of great uncertainty over the scope of the Federal Power Act, today the Court rightfully recognized the important role energy storage plays in our nation’s wholesale electricity markets. This decision will provide the clarity necessary to widely deploy energy storage, an essential component to securing the carbon-free grid we need to properly combat the climate crisis.”

 You can read the decision of the court here.

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Jennifer Runyon
Jennifer Runyon has been studying and reporting about the world's transition to clean energy since 2007. As editor of the world's largest renewable energy publication, Renewable Energy World, she observed, interviewed experts about, and reported on major clean energy milestones including Germany's explosive growth of solar PV, the formation and development of the U.S. onshore wind industry, the U.K. offshore wind boom, China's solar manufacturing dominance, the rise of energy storage, the changing landscape for utilities and grid operators and much, much, more. You can reach her at Today, in addition to managing content on Renewable Energy World and POWERGRID International, she also serves as the conference advisory committee chair for DISTRIBUTECH, a globally recognized conference and expo for the transmission and distribution industry. In her role, she works in close cooperation with a large team of committed industry executives to shape the educational content for the event. She also helps assemble the renewable energy content for POWERGEN and helped launch the first Grid-Scale Storage Summit, a co-located event at HYDROVISION International. She has traveled to Germany to see onshore and offshore wind installations; Iceland to see geothermal energy in action; and France to see cutting-edge smart grids. In the U.S. she has visited and reported about bioenergy power plants in Florida, both large-scale and small-scale hydropower; and multiple wind farms, solar PV, and CSP installations. Formerly, she was the managing editor of Innovate Forum, an online publication that focused on innovation in manufacturing. Prior to that she was the managing editor at Desktop Engineering magazine. In 2008, she won an "Eddy Award" for her editing work on an article about solar trees in Vienna. In 2010, was awarded an American Business Media Neal Award for its eNewsletters, which were created under her direction. She holds a Master's Degree in English Education from Boston University and a BA in English from the University of Virginia.

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