Details from Lynn:

Public Citizen has taken the lead in drafting briefs and pleadings in a consumer challenge currently pending in the U.S. Court of Appeals contending that the Federal Energy Regulatory Commission (FERC) is not regulating wholesale electric rates as the law requires. "Wholesale" rates are those for sales of electricity to anyone who resells it, such as to utilities who provide power to retail (including residential) customers. About 50% of all electricity in the U.S. is sold at wholesale. In those states that have deregulated electricity--such as Maryland and Delaware--all electricity is bought at wholesale because the distribution utilities, such as Baltimore Gas & Electric (BG&E), have been required to sell their power plants. As a result of FERC's failure to regulate wholesale sales, prices for BG&E's power supplies, that are passed on to customers in Maryland, have jumped 72% as of July.

Public Citizen and the other state Consumer Advocates have challenged FERC's legal authority to deregulate wholesale rates--without Congressional change to the relevant statute, the Federal Power Act--simply because FERC believes the wholesale "market" is now competitive. We say only the Congress can authorize such deregulation under a federal statute. After two years of briefing in the Court of Appeals for the D.C. Circuit, FERC filed a motion to dismiss our case, claiming it was now moot, because FERC had issued a new rulemaking, and that we never should have been allowed to raise our legal challenges in the case below. Four other petitioners dropped out of the appeal because of the new rulemaking, but Public Citizen filed vigorous objections on behalf of the Consumer Advocates to FERC's motion to dismiss our case. We asked that our appeal be returned to the oral argument calendar of the Court, from which it had been removed in February because FERC claimed that its new rulemaking would make our challenges moot.
On July 20, 2006, the Court of Appeals issued an order sending our case to a "merits" panel of the Court for oral argument instead of granting FERC's Motion to Dismiss. The Court directed that we should re-brief the case, without any of the rulemaking arguments that have become moot, but allowed us to fully brief our statutory challenges to FERC's "market-based rate" deregulation scheme.

This is a major victory for the Consumer Advocates, since FERC and others have long claimed that this same Court, the D.C. Circuit Court of Appeals, had previously issued decisions that approve FERC's deregulation scheme. We claim that this is not so. Rather than dismissing our challenge, the Court has set it for hearing, giving us a chance to make our case to the most important appellate court regarding this issue, short of the U.S. Supreme Court, since the D.C. Circuit hears most appeals of FERC orders.