Some of you may have already seen the attached opinion by Judge Posner of the United States Court of Appeals for the Seventh Circuit, which is based in Chicago and is the intermediate appellate court between US District Courts and the Supreme Court. In essence, Posner struck down the FERC rule that allowed PJM to recoup the costs of construction of a new high voltage electric transmission line -- even in part -- from utilities that derived no discernible benefit from the line. Importantly, the court deemed the value associated with "reliability" -- the chief benefit cited as justification for the TRAIL and PATH lines in W. Va. -- to be negligible and, in any event, insufficient to justify the pass thru of costs to utilities who received no other tangible economic benefit.
Although the decision repeats, in a very different context (one relating to recoverable transmission rates, not authority to construct transmission lines) many of the arguments we made last year in TRAIL and will make this year in PATH, it will be some time before we will use the decision in our own case. Additionally, there was a powerful dissent, quoting the conflicting opinion of then Judge John Roberts in a DC Circuit case which reached the opposite outcome, obviously for the purpose of highlighting the fact that there is now a "conflict of decisions among circuits" (one of the grounds SCOTUS uses to decide whether to hear an appeal) and attempting to draw the attention of now Chief Justice John Roberts.
Stand by....