Swecker v. Fed. Energy Regulatory Comm'n
| Decision Date | 28 September 2022 |
| Docket Number | 1:21-cv-1590-RCL |
| Parties | GREGORY SWECKER and BEVERLY SWECKER, Plaintiffs, v. FEDERAL ENERGY REGULATORY COMMISSION, Defendant. |
| Court | U.S. District Court — District of Columbia |
Plaintiffs Gregory and Beverly Swecker (“the Sweckers”) own and operate a wind turbine on their Iowa farm. The Sweckers brought this pro se action against the Federal Energy Regulatory Commission (“FERC”)[1] under the Administrative Procedure Act (“APA”), Pub. L. No. 79-404, 60 Stat. 237 (1946) (codified at 5 U.S.C. § 701), and the Public Utility Regulatory Policies Act of 1978 (“PURPA”), Pub L. No. 95-617, 92 Stat. 3117 (codified at 16 U.S.C. § 824a-3). PURPA limits the price that electric utilities may pay for the electricity, such that it cannot exceed the utility's “avoided cost”-the price at which the electricity could be acquired from an alternative source. Utilities must provide data to their state regulator to calculate avoided cost. FERC may bring enforcement actions against utilities that fail to provide this data. The Sweckers allege that FERC has acted unlawfully by failing to bring such enforcement actions. FERC filed a motion to dismiss, arguing that its enforcement decisions are not subject to judicial review.
After considering the motion, the applicable law, and the parties' briefing, this Court will GRANT the defendant's motion and DISMISS WITH PREJUDICE the plaintiffs' lawsuit.
I. BACKGROUND
Congress enacted PURPA in part to promote the development of alternative energy resources. See FERC v. Mississippi, 456 U.S. 742, 745 (1982). Understanding “traditional utilities' reluctance to deal with” alternative energy sources, Congress crafted PURPA to direct FERC to implement “mandatory purchase and sell obligations, requiring electric utilities to purchase electric power from, and sell power to, qualifying cogeneration and small power production facilities (collectively, ‘qualifying facilities').” Cal. Edison Co. v. FERC, 443 F.3d 94, 95 (D.C. Cir. 2006) (citing 16 U.S.C. § 824a-3(a)). The rates for these purchases shall not “exceed[] the incremental cost to the electric utility of alternative electric energy.” 16 U.S.C. § 824a-3(b)(2). These rates are commonly referred to as a utility's “avoided cost.” See Midland Power Co-op. v. FERC, 774 F.3d 1, 3 (D.C. Cir. 2014).
FERC regulations provide that electric utilities must submit data to their state regulatory authority so that the “avoided cost” can be determined. See 18 C.F.R. § 292.302. FERC may commence an enforcement action against “any State regulatory authority or nonregulated electric utility” to ensure compliance with PURPA and the rules promulgated thereunder. See 16 U.S.C. § 824a-3(h)(2)(A). PURPA also provides that a qualifying facility may petition FERC to enforce these statutory and regulatory requirements. See id. at § 824a-3(h)(2)(B). If FERC declines to commence an enforcement action, the qualifying facility may then “bring an action in the appropriate United States district court to require such State regulatory authority or nonregulated electric utility to comply with such requirements.” Id. (emphasis added).
The Sweckers' turbine, operated on their Iowa farm, Compl. ¶¶ 9, 52, ECF No. 1, has been a “qualifying facility” under PURPA since 1999. Id. at ¶ 54. Midland Power Cooperative (“Midland”) is an electric utility in Greene County, Iowa. Id. at ¶ 56. Pursuant to PURPA, the Sweckers sell power from their wind turbine to Midland. Id. ¶ 55. Midland buys the rest of its electricity from Central Iowa Power Cooperative (“CIPCO”). Id. at ¶ 58. Under PURPA's definition of avoided cost, the amount that Midland must pay the Sweckers for electricity depends on the price at which Midland purchases its electricity from CIPCO. Id. ¶ 59.
The Sweckers have long disputed Midland's calculation of its avoided cost, asserting that the utility is required to purchase electricity from them at a higher price. The Sweckers' acrimonious relationship with Midland “has given rise to a number of heated disputes” resulting in “a veritable litany of lawsuits spanning the last two decades.” Swecker v. United States, No. 4:17-cv-00195 (RWP), 2017 WL 11467834, at *l-*2 (S.D. Iowa, Nov. 28, 2017).
The Sweckers have repeatedly, and unsuccessfully, petitioned FERC to initiate an enforcement action against Midland.[2] The Sweckers have also initiated unsuccessful-or failed to defend themselves in-more than a dozen lawsuits related to their wind farm in both federal and state courts.[3]
The Sweckers ask this Court to (1) order FERC to bring enforcement actions against Midland and CIPCO for failing to provide cost rate data and (2) assess penalties for the utilities' previous failure to provide such data.[4] Compl. ¶ 96. In response, FERC filed a motion to dismiss. Def.'s Mot. to Dismiss, ECF No. 9. FERC argues that its decisions not to pursue enforcement actions against Midland or CIPCO are not reviewable by this Court. See Defs.' Mem., ECF No. 9 1, at 2. The Sweckers opposed. Pls.' Opp'n, ECF No. 10. FERC subsequently replied. Defs.'Reply, ECF No. 13. FERC's motion is now ripe for review.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted). Though a complaint is not required to contain “detailed factual allegations,” it must present more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. Taken together, the facts alleged in the complaint must be sufficient to raise a plausible claim and to permit “the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Because the Sweckers pursue their action pro se, the Court will construe their filings and complaint liberally. See Howerton v. Ogletree, 466 F.Supp.2d 182, 183 (D.D.C. 2006).
While the APA generally permits judicial review of agency actions, the APA expressly prohibits judicial review of “agency action [that] is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). “[A]n agency's decision not to prosecute or enforce... is a decision generally committed to an agency's absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). “[When] an action is committed to the agency's discretion under APA § 701(a)(2)-as agency enforcement decisions are-there can be no judicial review for abuse of discretion, or otherwise.” Citizens for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434, 441 (D.C. Cir. 2018). When “a complaint seeking review of agency action ‘committed to agency discretion by law,' 5 U.S.C. § 701(a)(2), has failed to state a claim under the APA, [it] therefore should be dismissed under Rule 12(b)(6).” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011).
III. DISCUSSION
The Circuit already held that FERC's decision not to bring enforcement actions under PURPA is unreviewable because the decision is committed to FERC's discretion by law. Swecker, 743 Fed.Appx. at 473. As the Circuit has previously explained, there is a general presumption against reviewability of agency enforcement decisions, a presumption may be overcome in three narrow situations: (1) where “the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers”; (2) where the agency refuses “to institute proceedings based solely on the belief that it lacks jurisdiction”; and (3) where the agency “has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” Balt. Gas & Elec. Co. v. FERC, 252 F.3d 456, 460 (D.C. Cir. 2001) (quoting Chaney, 470 U.S. at 833 & n.4)). The last time the Sweckers sought to compel FERC to bring a PURPA enforcement action against Midland, the district court held that the Sweckers “ha[d] failed to overcome the presumption that FERC's decision not to commence an enforcement action is unreviewable.” Swecker, 253 F.Supp.3d at 280. The Circuit affirmed on appeal, agreeing that “[t]he presumption against judicial review has not been rebutted in this case.” Swecker, 743 Fed.Appx. at 473.
The Circuit went even further in that case, saying that the Sweckers “ha[d] not persuaded the court to read an implied cause of action against [FERC] into the self-contained regulatory and enforcement system established by Congress in 16 U.S.C. § 824a-3.” Id. (citing Alexander v. Sandoval, 532 U.S. 275, 286 (2001) and Niagara Mohawk Power Corp. v. FERC, 117 F.3d 1485, 1488 (D.C. Cir. 1997)). Thus, according to the Circuit, the Sweckers' “complaint as to [FERC] was subject to dismissal for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6).” Id. (citing Sierra Club, 648 F.3d at 854).
The Sweckers insist that the Circuit changed its tune last year and “found that this Court has subject matter jurisdiction with review of such orders [as FERC's non-enforcement determination].” Compl. ¶ 1. The case the Sweckers reference involved their petition to the Circuit after FERC-yet again-declined to bring an enforcement action against Midland. See Swecker, No. 20-1440 (D.C. Cir. Feb. 22, 2021), ECF No. 1886385. The Circuit determined it did not have jurisdiction to hear the appeal noting that the “challenged orders, which were not ‘mandatory,'” and thus “not directly reviewable [by the Circuit] under 16 U.S.C. § 824a-3(h).” Id. (quoting Portland Gen. Elec. Co. v. FERC, 854 F.3d 692, 700-01 (D.C. Cir. 2017)...
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