From The United States District Court For The District of
Massachusetts Hon. Patti B. Saris, U.S. District Judge
L. Christensen, with whom Cairncross & Hempelmann, P.S.,
Thomas Melone, and Allco Renewable Energy Limited were on
brief, for appellant.
Michael Kunselman, with whom Alston & Bird LLP, Anthony
J. Marchetta, and Day Pitney LLP were on brief, for appellee
Massachusetts Electric Company d/b/a National Grid.
Timothy J. Casey, Assistant Attorney General, Government
Bureau, with whom Maura Healey, Attorney General of
Massachusetts, was on brief, for state appellees
O'Connor, Westbrook, Hayden, and Judson.
Torruella, Thompson, and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
case arises from the efforts of Allco Renewable Energy
Limited ("Allco") to enforce section 210 of the
Public Utility Regulatory Policies Act ("PURPA"),
16 U.S.C. § 824a-3, against Massachusetts Electric
Company d/b/a National Grid ("National Grid"). The
district court dismissed Allco's claim against National
Grid because section 210 does not provide a private right of
action against utility companies (such as National Grid). The
district court was correct, so we affirm that dismissal.
Allco also appeals the district court's denial of its
motion for additional relief against various Massachusetts
Department of Public Utilities (MDPU) officials
(collectively, the "state defendants") after the
district court invalidated certain MDPU regulations as
inconsistent with PURPA. The district court did not abuse its
discretion in doing so, so we affirm that decision as well.
begin with an overview of the statutory scheme at the heart
of this case. Congress passed PURPA in 1978 in response to
the ongoing energy crisis that plagued the nation. FERC
v. Mississippi, 456 U.S. 742, 745 (1982). Section 210 of
PURPA seeks to lessen the United States' reliance on oil
and natural gas by encouraging the development of
energy-efficient cogeneration and small power production
facilities. Id. at 750. See 16 U.S.C.
§ 824a-3. "Cogeneration facilities capture
otherwise-wasted heat and turn it into thermal energy; small
power-production facilities produce energy (fewer than 80
megawatts) primarily by using 'biomass, waste, renewable
resources, geothermal resources, or any combination
thereof.'" Portland Gen. Elec. Co. v. FERC,
854 F.3d 692, 695 (D.C. Cir. 2017) (quoting 16 U.S.C. §
796(17)). Both of these categories of facilities are known as
"qualifying facilities" ("QFs") under
found that traditional electric utilities' reluctance to
transact with these nontraditional facilities posed an
obstacle to facilitating their development. FERC,
456 U.S. at 750. It sought to address this by requiring
utilities to do so. Thus, section 210(a) of PURPA directed
the Federal Energy Regulatory Commission ("FERC")
to promulgate rules mandating that electric utilities
purchase energy from QFs. 16 U.S.C. § 824a-3(a). Those
rules, section 210(b) specified, were not to "provide
for a rate which exceeds the incremental cost to the electric
utility of alternative electric energy." Id.
§ 824a-3(b). PURPA defines "incremental cost"
as "the cost to the electric utility of the electric
energy which, but for the purchase from such cogenerator or
small power producer, such utility would generate or purchase
from another source." Id. § 824a-3(d). In
accordance with this directive, FERC promulgated regulations
requiring utilities to purchase electricity from QFs "at
a rate equal to the utility's full avoided cost."
Am. Paper Inst. v. Am. Elec. Power Serv. Corp., 461
U.S. 402, 405-06 (1983) (citing 18 C.F.R. 292.304(b)(2)).
Crucially, given section 210's purpose, the avoided cost
rate "usually exceeds the market price for wholesale
power." Portland Gen., 854 F.3d at 695.
Additionally, section 210(f) of PURPA instructs state
regulatory authorities to implement these FERC rules. 16
U.S.C. § 824a-3(f); see also Portland Gen., 854
F.3d at 695 ("Under PURPA, state utility commissions are
responsible for calculating the avoided-cost rates for
utilities subject to their jurisdiction").
this case is understanding PURPA's framework for
enforcing its requirement that states implement FERC's
PURPA-implementing rules. Sections 210(g)-(h) of PURPA create
"an overlapping scheme of federal and state judicial
review of state regulatory action taken pursuant to
PURPA." Greenwood ex rel. Estate of Greenwood v.
N.H. Pub. Utils. Comm'n, 527 F.3d 8, 10 n.1 (1st
Cir. 2008). First, PURPA allows a QF to petition FERC to
bring an enforcement action against a state on the grounds
that the state has failed to properly implement PURPA. 16
U.S.C. § 824a-3(h). With respect to private enforcement,
PURPA's enforcement scheme contemplates two types of
private actions against a state utility regulatory agency:
"implementation" challenges and
"as-applied" challenges. Exelon Wind 1, L.L.C.
v. Nelson, 766 F.3d 380, 388 (5th Cir. 2014); Power
Res. Grp., Inc., v. Pub. Util. Comm'n of
Tex., 422 F.3d 231, 234-35 (5th Cir. 2005).
challenges involve claims that a state agency has failed to
properly implement FERC's regulations governing the
purchase of energy from QFs. Power Res. Grp., 422
F.3d at 235. As-applied challenges, meanwhile, involve claims
that a utility has failed to abide by a state's
regulations implementing PURPA. See Portland Gen.,
854 F.3d at 698 (citing 16 U.S.C. § 824a-3(g)(2)). While
federal district courts have exclusive jurisdiction over
implementation challenges, only state courts may hear
as-applied challenges. Id. Additionally, an
individual seeking to bring an implementation challenge may
only do so after having petitioned FERC to bring an
implementation enforcement action, and only if FERC has not
initiated an action within sixty days of receiving the
petition. 16 U.S.C. § 824a-3(h)(2)(B).
and crucially, PURPA's text does not make any reference
to the possibility of a QF bringing any sort of action
against a utility in federal court.
March 28, 2011, Allco offered to sell National Grid the
entire generation output from eleven of its solar energy
generating QFs located in Massachusetts. These QFs all have a
production capacity between one and thirty megawatts.
Consistent with Mass. Code Regs. § 8.03(1)(b)(2), Allco
offered to negotiate a purchase agreement with National Grid.
On April 18, 2011, National Grid declined to negotiate a
contract with Allco, but offered instead to purchase
Allco's energy under its standard power purchase
contract. The methodology for arriving at the price rate in
National Grid's standard contract complied with the
relevant MDPU regulations governing that calculation.
See 220 Mass. Code Regs. § 8.05(2)(a).
August 3, 2011, Allco, pursuant to 220 Mass. Code Regs.
§ 8.03(1)(c), petitioned the MDPU to investigate the
reasonableness of National Grid's response to Allco's
offer. Allco further requested a declaration that National
Grid was legally obligated to purchase energy from
Allco's QFs for a term of twenty-five years, at the rate
of its avoided costs, calculated using the rate-forecasting
methodology the MDPU employed in a specific 2010 proceeding.
The MDPU denied that petition on July 22, 2014, finding
National Grid's offer to Allco both reasonable and
consistent with its regulations.
response, Allco petitioned the FERC to bring an enforcement
action against MDPU on the grounds that MDPU's
regulations clashed with PURPA. FERC declined to do so. Under
PURPA, that allowed ...