LSP Transmission Holdings II, LLC v. FERC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 7, 2022 Decided August 19, 2022

No. 20-1465

LSP TRANSMISSION HOLDINGS II, LLC, ET AL.,
PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT

COALITION OF MISO TRANSMISSION CUSTOMERS, ET AL.,
INTERVENORS

Consolidated with 20-1466, 21-1004, 21-1005

On Petitions for Review of Orders of the
Federal Energy Regulatory Commission

Robert C. Fallon argued the cause for petitioners. With
him on the briefs were Michael Ray Engleman and Christina
Switzer.

Kenneth R. Stark and Robert A. Weishaar, Jr. were on the
brief for intervenors in support of petitioners.
 2
Susanna Y. Chu, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were Matthew R. Christiansen, General Counsel, Robert
H. Solomon, Solicitor, and Matthew J. Glover, Attorney.

Kari Valley argued the cause for non-governmental
intervenors in support of respondent. With her on the joint
brief were Ilia Levitine, Wendy N. Reed, Matthew J. Binette,
and David S. Berman.

William D. Booth, Roxane E. Maywalt, Paul L.
Zimmering, and Noel J. Darce were on the brief for
governmental intervenors in support of respondent.

Before: ROGERS, MILLETT and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

Opinion dissenting in part and concurring in part filed by
Circuit Judge ROGERS.

PILLARD, Circuit Judge: LSP Transmission Holdings II,
LLC, Cardinal Point Electric, LLC, and LS Power
Midcontinent, LLC are transmission development companies.
They petition for review of a set of Federal Energy Regulatory
Commission (FERC) orders that approve modifications to the
criteria used by the Midcontinent Independent System
Operator, Inc. (MISO), a regional transmission grid operator,
to determine whether opportunities to develop proposed
transmission upgrades to the interstate power grid are open to
competitive bids from companies like petitioners. Petitioners
challenge two aspects of the orders: (1) FERC’s decision to
accept MISO’s proposal to use 230 kilovolts (kV) as the
minimum voltage threshold for a project to qualify as a Market
Efficiency Project (a category of projects subject to
 3
competitive bidding) rather than requiring a lower 100 kV
threshold; and (2) FERC’s approval of an exception from
competitive bidding for certain reliability projects needed soon.
FERC defends its orders on their merits, but it first contests the
petitioners’ standing to challenge the orders and whether the
petitions are ripe for review.

We hold that at least one petitioner—LS Power
Midcontinent—has standing to raise these claims, and that the
petitions are ripe. But the petitions fail on their merits: FERC’s
decision to accept 230 kV as the new voltage threshold was not
arbitrary and capricious, and FERC reasonably approved
MISO’s Immediate Need Reliability Exception. We therefore
deny the petitions for review.

BACKGROUND

I. Regulatory Background

“The Federal Power Act gives FERC jurisdiction over
facilities that transmit electricity in interstate commerce.” Old
Dominion Elec. Coop. v. FERC, 898 F.3d 1254, 1255 (D.C.
Cir. 2018). Under the Act, “electric utilities must charge ‘just
and reasonable’ rates.” Id. (quoting 16 U.S.C. § 824d(a)). That
standard requires applying a concept called the “cost-causation
principle,” under which “the rates charged for electricity
should reflect the costs of providing it.” Id. In other words,
the “burden” on ratepayers of paying for a project should be
“matched with [its] benefit” to them, and FERC “may not
single out a party” or group of parties “for the full cost of a
project, or even most of it, when the benefits of the project are
diffuse.” BNP Paribas Energy Trading GP v. FERC, 743 F.3d
264, 268 (D.C. Cir. 2014).

In 2011, to help ensure just and reasonable rates, FERC
promulgated Order No. 1000, which has several features
 4
relevant to this appeal. See Transmission Plan. & Cost
Allocation by Transmission Owning & Operating Pub. Utils.
(“Order No. 1000”), 136 FERC ¶ 61,051, P 1 (2011). First,
utilities in each planning region must together produce a
regional transmission plan to identify transmission alternatives
that resolve the region’s needs more efficiently or cost-
effectively than would uncoordinated local utility proposals.
Id. PP 6, 148; see Old Dominion, 898 F.3d at 1256. Second,
utilities must develop a method for allocating the costs of new
transmission facilities selected for cost allocation under the
regional plan. 136 FERC ¶ 61,051, PP 9, 558. That formula
must abide by the cost-causation principle. Id. P 10; Old
Dominion, 898 F.3d at 1256. Third, Order No. 1000 requires
transmission planning regions to adopt a competitive process
for determining which companies will develop the projects for
which the region’s ratepayers will be charged. 136 FERC
¶ 61,051, PP 7, 313, 323-31. Projects whose costs are allocated
only locally, in contrast, need not be competitively bid. See
Transmission Plan. & Cost Allocation by Transmission
Owning & Operating Pub. Utils. (“Order No. 1000-A”), 139
FERC ¶ 61,132, P 430 (2012); see also MISO Transmission
Owners v. FERC, 819 F.3d 329, 335 (7th Cir. 2016).

II. Factual and Procedural History

A. MISO “is a regional transmission organization and an
independent system operator authorized by” FERC “to
administer an open access transmission tariff” and “ensure
reliable operation of” high-voltage power lines in the
Midcontinent region, encompassing fifteen states and a
Canadian province. Joint Br. of Non-Governmental
Intervenors for Respondent at iv. Pursuant to Order No. 1000,
MISO engages in an annual regional transmission planning
process in which it identifies transmission projects that address
reliability and economic needs. That process culminates in the
 5
creation of a regional transmission plan. See Order No. 1000,
136 FERC ¶ 61,051, P 47.

As part of that process, MISO categorizes its future
transmission projects, and those categorizations dictate
features of the project relevant to this appeal, including: (1)
whether the project will be assigned to the incumbent
transmission provider or be subject to competitive bidding by
developers; and (2) whether the costs of the project will be
allocated to ratepayers across the entire region or only to those
in the local zone in which the project is located.

This case concerns three categories of projects. The first
category is Market Efficiency Projects, which is one of two
MISO categories subject to competitive developer selection
and regional cost allocation. (The other competitively bid
category, Multi-Value Projects, is not at issue here.) In other
words, projects in this category must be assigned to a developer
through a competitive bidding process, and the costs of such
projects are shared according to a formula throughout the
MISO region. The purpose of the Market Efficiency category
is to facilitate the development of “projects that, through
congestion relief, provide[] widespread economic benefits.”
Prepared Direct Test. of Jesse Moser on Behalf of the
Midcontinent Independent System Operator, Inc. (“Moser
Testimony”) at 30, Joint Appendix (J.A.) 312. Before the
challenged orders, to qualify as a Market Efficiency Project, a
project had to meet a certain regional benefit-to-cost ratio, cost
at least $5 million, and devote fifty percent or more of the
project costs to facilities with voltages of at least 345 kV.

The second relevant category of projects is Baseline
Reliability Projects. These are network upgrades needed to
ensure compliance with applicable national and regional
reliability standards. “[E]nsuring the reliability of the electric
 6
grid is a primary function of” transmission organizations like
MISO. Delaware Div. of Pub. Advoc. v. FERC, 3 F.4th 461,
467 (D.C. Cir. 2021). MISO therefore performs Baseline
Reliability Studies to evaluate its compliance with various
reliability standards and identify necessary upgrades. Baseline
Reliability Projects are not eligible for competitive bidding and
the costs of such projects are allocated locally—that is, within
the transmission pricing zone where the project is located. 1 If
a Baseline Reliability Project also meets the criteria of a Market
Efficiency Project, however, it is considered one and is subject
to competitive bidding and regional cost allocation (with an
exception discussed below for projects needed within a certain
timeframe). In this way, MISO’s tariff establishes a
“hierarchy” of project categories. Moser Testimony at 33-34,
J.A. 315-16.

Third, projects that do not fall into any other category are
“Other Projects.” Those projects are not subject to competitive
bidding or regional cost allocation, meaning that all of their
costs are allocated to the local zone where the project will be
physically located. The Other Projects category includes
projects designed to serve economic needs that do not meet the
voltage threshold of a Market Efficiency Project.

B. MISO coordinates with various stakeholders—
including utilities, municipalities, customers, state utilities
commissions, and others—to develop the regional transmission
plan. In 2015, MISO began a stakeholder consultation process
to develop revisions to its tariff. Starting in February 2019,
MISO submitted to FERC a series of proposals that emerged
from that process. FERC rejected MISO’s first two proposals.

1
The cost allocation regime for MISO’s Baseline Reliability Projects
is at issue in a related petition we heard the same day as this one. See
Coalition of MISO Transmission Customers, et al. v. FERC, No. 20-
1421.
 7
It rejected the first proposal because of concerns regarding
MISO’s proposed new Local Economic Project category for
certain economic projects operating below 230 kV.
Midcontinent Indep. Sys. Operator, Inc. Order Rejecting
Proposed Tariff Revisions (“2019 Proposal Rejection”), 167
FERC ¶ 61,258, PP 1, 9 (2019). That category would have
included projects that met both a regional benefit-to-cost ratio
and a local benefit-to-cost ratio, but the costs of those projects
would have been allocated only locally. Id. PP 58, 63. The
Commission disapproved as contrary to the cost-causation
principle MISO’s plan to “identify regional benefits for Local
Economic Projects, but, for the purpose of imposing its
preferred cost allocation method, . . . ignore the results of its
regional benefit metrics analysis in order to allocate the costs
only to the Transmission Pricing Zone(s) where the project is
located.” Id. P 63.

MISO tried a second time. Again, FERC rejected the
proposed cost allocation method for the Local Economic
Project category. This time, MISO did not require a regional
benefit-to-cost ratio for Local Economic Projects.
Midcontinent Indep. Sys. Operator, Inc. Order Rejecting
Proposed Tariff Revisions (“2020 Proposal Rejection”), 170
FERC ¶ 61,241, P 60 (2020). MISO would, however, employ
a benefits metric that called for determining benefits outside
the local pricing zone where the project is located, “but then
disregard[] these benefits by allocating costs for the project
solely within that Transmission Pricing Zone.” Id. P 59. FERC
deemed that method, too, in violation of the cost-causation
principle. Id.

In April 2020, MISO submitted a third proposal, which is
at issue here. This one omits the previously proposed Local
Economic Project category that FERC had deemed
problematic. And it reflects a variety of other changes,
 8
including two that petitioners challenge here. First, MISO
proposed to lower the minimum voltage threshold for Market
Efficiency Projects from 345 kV to 230 kV. MISO explained
that this change would expand the universe of projects open to
competitive bidding and regional cost allocation while still
maintaining a distinction between regional projects and those
that primarily benefit one local zone.

MISO also proposed a new Immediate Need Reliability
Project category that would be exempt from competitive
solicitation. That category would encompass projects that (1)
meet the requirements of both Baseline Reliability Projects and
Market Efficiency Projects; and (2) are scheduled for
completion within three years to resolve a pressing reliability
need. MISO anticipated that those conditions would occur
infrequently, resulting in about one exempted project per
planning cycle. As MISO explained, it was expanding the
Market Efficiency Project category to include lower voltage
projects, which, because of the tariff’s hierarchy, would likely
increase the number of potential Baseline Reliability Projects
that also qualify as Market Efficiency Projects open to
developer competition. But because running a competitive
selection process can take more than a year, MISO reasoned,
competing a project can postpone its construction and
completion. Where projects are forecast to be required for grid
reliability, added time that pushes their completion past the
projected need-by date can be particularly problematic. MISO
accordingly defended this new exception as necessary to ensure
that its expansion of the competitive development process did
not threaten system reliability.

In the first of four orders at issue here, FERC approved the
proposed changes, including the two that petitioners challenge.
To start, it found MISO’s proposal to lower the Market
Efficiency Project minimum voltage threshold from 345 kV to
 9
230 kV to be just and reasonable. And, in so holding, FERC
rejected the petitioners’ request that the threshold be lowered
even further to 100 kV. It distinguished our decision in Old
Dominion, in which we held that “a categorical refusal to
permit any regional cost sharing for an important category of
projects conceded to produce significant regional benefits” was
inconsistent with the cost-causation principle. 898 F.3d at
1263. “Unlike the situation in” Old Dominion, FERC
reasoned, “neither MISO nor the Commission . . . has made the
finding that MISO projects between 100 kV and 230 kV
produce ‘significant regional benefits.’” Midcontinent Indep.
Sys. Operator, Inc. Order Accepting Proposed Tariff and
Transmission Owners Agreement Revisions (“Order Accepting
Proposal”), 172 FERC ¶ 61,095, P 49 (2020) (quoting Old
Dominion, 898 F.3d at 1257, 1261). Moreover, the proposal
“will increase the universe of projects eligible to be considered
a Market Efficiency Project,” and thus “will also expand the
number of potential transmission projects that are eligible for”
competitive selection. Id. P 50. FERC therefore permitted the
proposed change to the threshold.

FERC also approved MISO’s proposal to except
Immediate Need Reliability Projects from developer
competition. The Commission cautioned that the exception
“should be used only in limited circumstances.” Order
Accepting Proposal, 172 FERC ¶ 61,095, P 61. In deciding
whether to approve similar proposals from other regional
transmission operators, FERC had used “five criteria, which
place reasonable bounds on discretion to determine whether
there is sufficient time to permit competition to develop
reliability projects.” Id. FERC noted that MISO’s proposal
limited its resort to the Immediate Need Reliability category by
adopting “the same five criteria that the Commission
previously accepted for use in other” regions. Id. P 62. FERC
therefore approved the proposal. Id.
 10
Petitioners sought and FERC denied rehearing. See
Midcontinent Indep. Sys. Operator, Inc. Order Addressing
Arguments Raised on Rehearing (“Proposal Rehearing
Order”), 173 FERC ¶ 61,203, P 2 (2020). Petitioners argued
that FERC had previously determined that sub-230 kV projects
have significant regional benefits when it found a then-existing
345 kV threshold for certain interregional projects
unreasonable and required MISO to lower it to 100 kV. FERC
distinguished that decision by relying on the differences
between interregional and regional projects, noting that
interregional projects raise a special problem: They must meet
both MISO’s threshold and the other independent system
operator’s threshold. It was in that specific circumstance that
FERC held MISO’s high voltage threshold held up the
consideration of beneficial interregional projects. FERC also
rejected the petitioners’ other arguments for a lower threshold,
including that FERC had ignored evidence that sub-230 kV
projects have significant regional benefits and that FERC’s
rejections of MISO’s two prior proposals mandated rejection
of this one.

Regarding the Immediate Need Reliability Exception,
FERC rejected the petitioners’ arguments that the new category
would be overused and that FERC had failed to follow its own
precedent. It further explained that FERC’s five criteria for
when a project may qualify for a reliability category do not
require MISO to post a description of the reliability need before
(rather than after) designating the incumbent transmission
owner as the developer of the project. That is so, FERC
observed, because MISO will have opportunities to invite
stakeholder input during the Baseline Reliability Study and
transmission planning, as well as during a sixty-day comment
period after it publishes the notice that the project is approved.
Proposal Rehearing Order, 173 FERC ¶ 61,203, P 23.
 11
C. Separately, in June 2019, the petitioners filed a
complaint against MISO under section 206 of the Federal
Power Act, 16 U.S.C. § 824e, alleging that the then-existing
transmission planning process had resulted in unjust and
unreasonable rates. They asked FERC to require MISO to
lower the Market Efficiency Project voltage threshold from the
old 345 kV limit down to 100 kV. They claimed that projects
between 345 kV and 100 kV can have regional benefits and,
citing MISO’s 2016 Working Group meeting, argued that
lowering the threshold to 230 kV was inadequate in view of
four hypothetical examples MISO had presented of sub-230 kV
projects with benefits in more than one pricing zone. The
petitioners also cited examples from the 2017 Working Group
meeting, as well as projects from MISO’s 2018 transmission
plan that produced more regional than local benefits. The
petitioners argued that the 345 kV threshold violated the cost-
causation principle because the resulting cost allocation did not
charge all beneficiaries of the projects.

In the third order on review here, issued the same day as
the order accepting MISO’s proposed tariff revisions, FERC
denied the petitioners’ section 206 complaint. Recognizing
that it had just accepted MISO’s proposed 230 kV threshold in
the concurrent order, the Commission concluded that the
petitioners had failed to show that the previously-existing 345
kV threshold was unjust and unreasonable. FERC
characterized much of the petitioners’ evidence that 230 kV
projects produce regional benefits as hypothetical or isolated
and therefore insufficient to meet their burden of demonstrating
that MISO’s threshold was unjust and unreasonable. It also
rejected the petitioners’ argument that FERC’s rejection of the
first two MISO proposals mandated rejecting this proposal.
Unlike the first two rejections, it explained, in the third
proposal “MISO does not, and has not, proposed to analyze the
extent and distribution of benefits of a project and then ignore
 12
that analysis for the purpose of cost allocation.” LSP
Transmission Holdings II, LLC et al. v. Midcontinent
Independent System Operator, Inc. Order Denying Complaint
(“Complaint Rejection Order”), 172 FERC ¶ 61,098, P 47
(2020). It therefore denied the complaint.

The petitioners also sought rehearing of the order rejecting
their complaint, arguing that they had put forward substantial
evidence that a threshold over 100 kV for Market Efficiency
Projects would inappropriately exclude regionally beneficial
projects. FERC denied the rehearing request in the fourth order
challenged here. LSP Transmission Holdings II, LLC, et al. v.
Midcontinent Independent System Operator, Inc. Order
Addressing Arguments Raised on Rehearing (“Complaint
Rehearing Order”), 173 FERC ¶ 61,202, P 2 (2020). FERC
explained that it addressed most of the petitioners’ arguments
on rehearing in the underlying complaint order and reaffirmed
its holding that the petitioners had failed to demonstrate that
the Market Efficiency Project threshold was unjust and
unreasonable.

D. The petitioners timely sought review of all four FERC
orders. The petitions garnered four case numbers, which
correspond as follows: The orders on review in Nos. 20-1466
and 21-1005 arise from FERC’s decision to accept MISO’s
tariff revisions under section 205 of the Federal Power Act, 16
U.S.C. § 824d, while the orders on review in Nos. 20-1465 and
21-1004 arise from the petitioners’ complaint to FERC under
section 206 of the Act. We consolidated the petitions. After
oral argument in this case, we directed the petitioners to file
supplemental briefs in defense of their position that they have
Article III standing.
 13
JURISDICTION

These petitions are properly before us pursuant to section
313(b) of the Federal Power Act, 16 U.S.C. § 825l(b). FERC
disputes, however, whether the petitioners have standing and
whether their petitions are ripe for review. The answer to both
questions is yes.

I. Petitioner LS Power Midcontinent has sufficiently
demonstrated its standing.

We first hold that at least one petitioner—LS Power
Midcontinent, LLC—has standing. This conclusion follows
almost directly from our decision earlier this year in LSP
Transmission Holdings II, LLC v. FERC (LSP 2022), 28 F.4th
1285, 1287-89 (D.C. Cir. 2022). There, we held that LSP
Transmission Holdings had standing to challenge ISO New
England’s immediate-need reliability exception. Id. at 1288-
89. In 2013, FERC had permitted ISO New England to exempt
from competition reliability projects needed within three years.
Id. at 1287-88. By 2019, FERC was concerned that ISO New
England might not be following Order No. 1000’s competitive
selection requirements, and it directed the ISO to explain how
it was complying with the immediate-need reliability project
criteria. Id. at 1288. LSP intervened, arguing that ISO New
England was overusing the exemption, but FERC eventually
disagreed and found no error. Id. LSP petitioned our court for
review, and FERC challenged its standing.

We held that “to establish injury, LSP had only to show
that it ‘was ready, willing and able to perform’ and that Order
No. 1000 and the tariff ‘deprived the company of the
opportunity to compete’ for the work.” LSP 2022, 28 F.4th at
1288-89 (quoting O’Donnell Constr. Co. v. District of
Columbia, 963 F.2d 420, 423 (D.C. Cir. 1992)). And we held
that “LSP met these requirements” because “[i]t demonstrated
 14
its readiness when its subsidiary bid on the only one of thirty-
one recent reliability projects open to competitive bidding.” Id.
at 1289. “Yet because of the Commission’s criteria, there was
no competitive bidding for the thirty other transmission
projects,” and “LSP accordingly ha[d] suffered an Article III
injury.” Id.

We distinguished our unpublished decision in LSP
Transmission Holdings, LLC v. FERC (LSP 2017), 700 F.
App’x 1 (D.C. Cir. 2017) (per curiam). In LSP 2017, we had
“held that LSP lacked standing to claim that a utility
wrongfully excluded it ‘from competition based on state and
local laws’” because “LSP failed to identify a ‘specific project
that [the utility] ha[d] approved for regional cost allocation in
a state whose law gives an incumbent a right of first refusal.’”
LSP 2022, 28 F.4th at 1289 (quoting LSP 2017, 700 F. App’x
at 2) (first alteration in original). There, it was not at all clear
that any project even existed that was located in a state with
rights of first refusal and thereby foreclosed from competition.
Given that uncertainty, identifying a specific project was
essential to demonstrating injury in fact. Unlike in LSP 2017,
we explained, in LSP 2022 there could “be no doubting [LS
Power’s] assertion that it ha[d] been denied the ability to bid
on the thirty identified projects as a result of” the exemption.
Id.

The same is true here. LS Power Midcontinent has
standing in this case under LSP 2022 because it has
demonstrated that it is ready, willing, and able to perform the
type of work at issue and that the challenged orders prevented
it from doing so. First, LS Power Midcontinent is pre-certified
as a transmission developer under MISO’s criteria for the
region, and an LS Power affiliate was the winning developer in
one of only two Market Efficiency Project solicitations.
Petitioners’ Br. at xi, 32; see LSP 2022, 28 F.4th at 1288.
 15
Indeed, FERC conceded at oral argument that the petitioners
are certified transmission developers qualified to compete for
this type of construction work. Oral Arg. Tr. at 33-34.

Second, the challenged orders have prohibited LS Power
from competing for that work. See LSP 2022, 28 F.4th at 1288-
89. For example, as evidence of its injury from the higher
voltage threshold, LS Power points to MISO’s 2018
transmission plan, which included two 161 kV projects that LS
Power contends were regionally beneficial and therefore
should have been regionally cost-allocated so competitively
bid. See Reply Br. at 5. And regarding LS Power’s injury from
the new exception for immediate need projects, MISO itself
acknowledged that the exception to competition “would impact
approximately one Baseline Reliability Project per MTEP
cycle.” Moser Testimony at 38, J.A. 320. That suffices to
demonstrate that LS Power has been “deprived . . . of the
opportunity to compete for . . . work.” LSP 2022, 28 F.4th at
1289 (internal quotation marks and citation omitted).

To prove its injury, LS Power need not identify a specific
project within the class of projects that, “[t]here can be no
doubting[,]” id., are excluded from competition. No one
disputes that the identified class in fact includes relevant
projects. This case is therefore distinguishable from our
unpublished LSP 2017 decision for the same reason LSP 2022
was: There is no doubt here that LS Power is completely barred
from competing for entire categories of projects for which it
would otherwise compete. See LSP 2022, 28 F.4th at 1289
(citing LSP 2017, 700 F. App’x at 2). LS Power therefore has
standing to challenge those categorizations. 2

2
The separate opinion’s concerns are well taken as we all agree “that
a bare assertion that a petitioner is ‘ready, willing, and able’ to
compete is [not] sufficient to establish Article III injury-in-fact.”
 16
We also reject FERC’s argument that the petitioners lack
standing because the Commission’s orders effected a net
increase in the number of projects eligible for competitive
bidding by lowering the threshold from 345 kV to 230 kV.
That FERC gave the petitioners a half-measure of what they
requested does not negate their injury from the continued bar
on competition for sub-230 kV projects. LS Power
Midcontinent therefore has standing to raise its challenges to
the four FERC orders. 3

Separate Op. at 3; see also id. at 5. Instead, a petitioner must also
show that agency action has “deprived [it] of the opportunity to
compete for the work.” LSP 2022, 28 F.4th at 1289 (internal
quotation marks and citation omitted). And it must substantiate its
standing by pointing to record evidence or submitting new evidence.
Sierra Club v. EPA, 292 F.3d 895, 899-900 (D.C. Cir. 2002). LS
Power has done just that by showing both that it has competed for
the rare project open to it, and that the challenged rule now
categorically excludes it from competing for all Market Efficiency
Projects and Immediate Need Reliability Projects going forward.
3
In holding that LS Power has standing, we need not and do not rely
on the supplemental briefing and affidavits. We caution, however,
that an agency’s denial of a petitioner’s complaint does not alone
necessarily suffice to show injury in fact for Article III purposes. Cf.
Pets. Supp. Br. on Standing at 2-3. “FERC’s rejection of [a
petitioner’s] challenges in the proceedings before it . . . does not
establish constitutional standing.” Kan. Corp. Comm’n v. FERC,
881 F.3d 924, 929 (D.C. Cir. 2018). Finally, because LS Power
Midcontinent has standing to raise both claims at issue here, we need
not decide whether the other petitioners also have standing. See N.Y.
Republican State Comm. v. SEC, 927 F.3d 499, 503 (D.C. Cir. 2019)
(“If any one of the petitioners has standing to raise a claim, then this
court has jurisdiction over that claim without regard to whether any
other petitioner also has standing.”).
 17
II. The petitioners’ claims are ripe for review.

We readily dispatch FERC’s half-hearted ripeness
challenge. FERC argues that “the petitions may be dismissed
for lack of a ripe controversy because they do not present
concrete issues fit for judicial review at this time.”
Respondent’s Br. at 34. In support, FERC notes that MISO
“has stated its intent to review cost allocation for” sub-230 kV
projects sometime in the future and that MISO “may submit a
new proposal.” Id. (formatting modified and internal citation
omitted). It therefore suggests we delay review of these
petitions. We reject FERC’s argument that the petitions are not
yet ripe because MISO plans to eventually revisit the cost
allocation for lower voltage projects. “[A]n agency faced with
a claim that a party is violating the law . . . cannot resolve the
controversy by promising to consider the issue in a prospective
legal framework.” City of Miami v. FERC, 22 F.4th 1039, 1043
(D.C. Cir. 2022). MISO’s stated intention to consider new
policies at some future time does nothing to resolve LS Power’s
current claim of injury from the existing voltage threshold.

MERITS

The petitioners object to two features of the orders at issue:
(1) FERC’s acceptance of MISO’s proposal to lower the
Market Efficiency Project threshold to 230 kV and attendant
denial of the petitioners’ request to lower the threshold further
to 100 kV; and (2) FERC’s acceptance of the Immediate Need
Reliability Exception to the requirement that Market Efficiency
Projects be awarded competitively. We reject both challenges.

We review FERC’s orders under the deferential arbitrary-
and-capricious standard of review. Old Dominion, 898 F.3d at
1260. Under that standard, “we uphold FERC decisions if the
agency has ‘examined the relevant considerations and
articulated a satisfactory explanation for its action, including a
 18
rational connection between the facts found and the choice
made.’” Id. (quoting FERC v. Elec. Power Supply Ass’n, 577
U.S. 260, 292 (2016)). “Because this standard is deferential,
we do not require FERC . . . to utilize a particular formula, or
to allocate costs with exacting precision.” Id. (internal citations
omitted). “However, we have set aside orders when FERC’s
allocation of costs was either unreasonable, or inadequately
explained.” Id. (internal citations omitted). FERC’s “factual
findings are conclusive if supported by substantial evidence.”
S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41, 54 (D.C. Cir.
2014).

Recall that two of the orders on review arise from a
complaint filed by the petitioners under section 206 of the
Federal Power Act, challenging MISO’s then-existing tariff. In
that posture, the petitioners had the burden of showing that the
challenged tariff provisions are “unjust, unreasonable, unduly
discriminatory, or preferential.” 16 U.S.C. § 824e(b); see also
New England Power Generators Ass’n v. FERC, 879 F.3d
1192, 1200 (D.C. Cir. 2018). And the other two orders on
review arise from MISO’s proposed tariff filing under section
205 of the Act. In those proceedings, MISO bore the burden
of demonstrating that the proposed tariff revisions are “just and
reasonable.” 16 U.S.C. § 824d(e); see also New England
Power Generators Ass’n, 879 F.3d at 1200. In considering
whether FERC acted arbitrarily in accepting MISO’s filing and
rejecting the petitioners’ section 206 complaint, we bear these
respective burdens in mind.

I. FERC’s decision to accept 230 kV as the Market
Efficiency Project threshold was reasonable.

The petitioners challenge both FERC’s decision to accept
MISO’s proposed 230 kV threshold for Market Efficiency
Projects in the section 205 proceeding, and FERC’s rejection
 19
of the petitioners’ section 206 complaint asking for a 100 kV
threshold. We uphold both decisions.

A. FERC reasonably accepted the proposed voltage
threshold.

FERC’s decision to accept MISO’s proposal to lower the
threshold from 345 kV to 230 kV was reasonable. The
Supreme Court has explained that the “statutory requirement
that rates be ‘just and reasonable’ is obviously incapable of
precise judicial definition, and we afford great deference to the
Commission in its rate decisions.” Morgan Stanley Cap. Grp.
Inc. v. Pub. Util. Dist. No. 1 of Snohomish Cnty., Wash., 554
U.S. 527, 532 (2008). FERC thus “enjoys broad discretion to
invoke its expertise in balancing competing interests and
drawing administrative lines.” Am. Gas Ass’n v. FERC, 593
F.3d 14, 19 (D.C. Cir. 2010). “We are generally unwilling to
review line-drawing performed by the Commission unless a
petitioner can demonstrate that lines drawn are patently
unreasonable, having no relationship to the underlying
regulatory problem.” ExxonMobil Gas Mktg. Co. v. FERC, 297
F.3d 1071, 1085 (D.C. Cir. 2002) (internal citation omitted and
formatting modified). And FERC is “free to undertake reform
one step at a time” so long as its “gradualism” does not “yield[]
unreasonable” results. S.C. Pub. Serv. Auth., 762 F.3d at 88
(internal citation omitted). In light of those standards, it was
reasonable for FERC to accept a 230 kV threshold, which
increases the overall number of projects subject to regional cost
allocation and competition, as the new lower bound for Market
Efficiency Projects.

MISO’s Director of Economic and Policy Planning, Jesse
Moser, explained the decision to move the threshold to 230 kV
but not down to 100 kV. Market Efficiency Projects were
“developed to provide a regional cost sharing mechanism for
 20
those projects that, through congestion relief, provided
widespread economic benefits.” Moser Testimony at 30, J.A.
312. “[B]ecause of their capability to move large amounts of
energy long distances efficiently,” Moser continued, “it is
higher voltage projects that provide additional increased
capacity that improves regional energy delivery.” Id. “Lower
voltage projects,” by contrast, “can provide some economic
congestion relief, but the impacts of those projects tend to stay
more localized.” Id. Moreover, “because these benefits are
generally smaller and more locally concentrated, they are more
volatile and sensitive to assumptions used to
forecast . . . savings.” Id. Importantly, however, “there are
projects” at 230 kV and above “that have broader benefits,” and
MISO therefore brought the threshold down to 230 kV to
“address[] the potential mismatch of costs and benefits . . . and
increase[] the range of projects that could qualify as Market
Efficiency Projects.” Moser Testimony at 30-31, J.A. 312-13.

MISO also explained why it had not proposed the
threshold that petitioners favor: Namely, “moving to the even
lower threshold of 100 kV did not,” in MISO’s view, “provide
a distinction between regional economic projects and local
projects needed for local needs.” Moser Testimony at 31, J.A.
313. Maintaining such a distinction is in line with Order No.
1000. In requiring competitive solicitation for certain projects,
FERC in Order No 1000 did not require eliminating rights of
first refusal for incumbent providers or developers for all
transmission projects. Rather, it so required only for projects
whose costs are shared regionally. Order No. 1000, 136 FERC
¶ 61,051, P 7. FERC therefore apparently thought it important
to maintain a distinction between projects that generally benefit
the entire region and those that are locally beneficial, with cost
causation and the economic benefits of competition tipping
toward competitive bidding in the former category, but not
necessarily in the latter.
 21
We conclude that FERC acted reasonably in accepting 230
kV as a suitable proxy for the well-established regulatory
distinction between regional and local projects given that, as a
general matter, lower voltage projects “tend to stay more
localized” and their benefits are “more locally concentrated.”
Moser Testimony at 30, J.A. 312. In these proceedings, FERC
evaluated MISO’s proposal—which, again, lowered the
threshold from the 345 kV line FERC had previously
approved—and determined that it was just and reasonable. See
Order Accepting Proposal, 172 FERC ¶ 61,095, PP 46, 50. We
accept the Commission’s judgment on the point: The threshold
balances the benefits of competitive solicitation by expanding
the universe of competitive projects, while recognizing that
projects responding primarily to local problems need not go
through the extra steps of competitive solicitation. FERC is
given considerable latitude in drawing those types of lines and,
as explained next, none of the petitioners’ contrary evidence
convinces us that 230 kV is an inappropriate cutoff.

B. FERC’s rejection of the petitioners’ contrary
complaint was likewise reasonable.

In addition to urging FERC to reject MISO’s 230 kV
proposal, petitioners separately asked FERC to hold that 345
kV is unjust and require MISO to lower the threshold to 100
kV. In support of their argument, petitioners point to past sub-
230 kV projects they say produced significant regional
benefits. They also rely on FERC’s statements in prior
opinions that petitioners read as deciding that sub-230 kV
projects are regionally beneficial. They therefore claim that
FERC’s failure to lower the voltage threshold to 100 kV
violated applicable precedent requiring regional cost sharing
for projects with significant regional benefits. FERC
reasonably rejected petitioners’ evidentiary support for the
notion that 100 kV is the required voltage threshold for Market
 22
Efficiency Projects, and it adequately reconciled its position
with the relevant precedent.

1. FERC acted within its authority when it held that
petitioners’ argument to lower the threshold to 100 kV was
insufficiently supported by the record. The petitioners here
point to evidence before FERC that they say demonstrates that
the old 345 kV threshold was unjust and unreasonable and that
the 230 kV threshold adopted in the challenged orders suffers
the same flaw. They focus in particular on evidence that (1)
most congestion on the MISO system occurs on facilities below
230 kV; and (2) some projects between 100 kV and 229 kV
benefit zones beyond the one in which a project is physically
located. Those contentions do not persuade us that FERC has
acted arbitrarily.

“First,” as FERC notes, “the mere fact that congestion
exists on facilities below 230 kilovolts does not support LS
Power’s position that the voltage threshold should be lowered
to 100 kilovolts.” Respondent’s Br. at 45. “Congestion in the
grid arises when the demand for electricity exceeds the
capacity of existing transmission infrastructure.” Int’l
Transmission Co. v. FERC, 988 F.3d 471, 473 (D.C. Cir.
2021). “That results in a grid that cannot accommodate
consumer demand in certain areas . . . which ultimately raises
costs to consumers.” Id. As explained above, relieving
congestion in the grid is one of the purposes of economic
projects.

The existence of some congestion on lower voltage
facilities does not alone mean that lower voltage projects must
be competitively bid. As MISO explained to FERC, “the
voltage level of a constraint is not determinative of the voltage
level of the solution.” J.A. 909 (MISO Answer); see also Joint
Br. of Non-Governmental Intervenors for Respondent at 18
 23
(“Congestion is a normal occurrence in interconnected
transmission systems and the most economical solution to a
congested flowgate does not necessarily require a transmission
solution of the same voltage class.”). In other words, that
petitioners have identified congestion on lower voltage
facilities does not necessarily mean that the projects used to fix
that congestion will be below 230 kV. The petitioners also fail
to close the loop by explaining why any solution to sub-230 kV
congestion would necessarily have significant regional benefits
and should therefore be competitively bid. See Joint Br. of
Non-Governmental Intervenors for Respondent at 18-19. They
therefore fail to “establish the necessary causal link between
congestion and regional benefits . . . sufficient to mandate
regional cost allocation [for such] lower voltage facilities.” Id.
at 19.

Second, the petitioners’ few examples of lower voltage
projects with regional benefits did not render FERC’s
acceptance of a 230 kV threshold unreasonable. The
petitioners first point to examples from two MISO stakeholder
presentations, one from 2016 and another from 2017, that they
claim show that the 230 kV threshold is unreasonable. But, as
FERC recognized, those examples were merely hypothetical
situations used for stakeholder discussions, not actual, vetted
solutions to reliability issues. Hypothetical project examples
that “had not undergone thorough engineering review and
approval through the Midcontinent planning process” are not
compelling enough evidence to convince us to override
FERC’s determination in this highly technical area. See Joint
Br. of Non-Governmental Intervenors for Respondent at 20.

Petitioners also point to two 161 kV facilities from
MISO’s 2018 transmission plan that they say benefited more
than one zone in the MISO region so should have been
competitively bid but were not because they fell below the
 24
voltage threshold for Market Efficiency Projects. We conclude
FERC acted within its authority in dismissing these two
examples as “isolated.” Complaint Rehearing Order, 173
FERC ¶ 61,202, PP 7 n.13, 8. FERC need not “consider cost-
allocation rules on a project-by-project basis, which would
unravel the framework of ex ante tariffs established by Order
No. 1000 and approved by this Court.” Long Island Power
Auth. v. FERC, 27 F.4th 705, 715 (D.C. Cir. 2022). “Instead,
FERC must ensure only that there is ‘some resemblance’
between costs and benefits.” Id. (quoting Pub. Serv. Elec. &
Gas Co. v. FERC, 989 F.3d 10, 13-14 (D.C. Cir. 2021)). FERC
reasonably determined that two examples do not sufficiently
demonstrate that the entire ex ante class of Market Efficiency
Projects is improperly cost allocated.

In sum, FERC reasonably held that petitioners’
hypotheticals and two isolated examples were insufficient
evidence to necessitate rejecting MISO’s proposed voltage
threshold.

2. FERC also reasonably applied its own relevant
precedent and that of this court.

a. Petitioners challenge FERC’s orders as inconsistent
with our decision in Old Dominion, in which we elaborated on
the requirements of the cost-causation principle. There, we
remanded FERC’s decision to accept a tariff amendment
proposed by the regional transmission operator PJM
Interconnection, LLC, that barred regional cost allocation for
certain high-voltage transmission projects. 898 F.3d at 1260,
1264. In that case, the “critical point [wa]s undisputed: high-
voltage power lines produce significant regional benefits
within the PJM network, yet the amendment categorically
prohibit[ed] any cost sharing for high-voltage projects.” Id. at
1260. “The amendment thus produce[d] a severe misallocation
 25
of the costs of such projects.” Id. at 1261. For the two high
voltage projects at issue, the entities paying all of the costs
would enjoy less than half of the benefits, which we held
amounted to “a wholesale departure from the cost-causation
principle.” Id.

We rejected FERC’s attempt to lump together the high-
voltage projects with low-voltage projects for purposes of
evaluating the category’s compliance with the cost-causation
principle, reasoning that because the costs of low-voltage
projects had always been allocated locally, the amendment
primarily operated to eliminate cost sharing for high-voltage
projects “that FERC ha[d] recognized produce significant
regional benefits.” Id. at 1261-62 (emphasis in original). We
noted that FERC “need not always carve out exceptions for
arguably distinct subcategories of projects.” Id. at 1262. But
because “it [wa]s undisputed that high-voltage and low-voltage
projects are significantly different with regard to which utilities
benefit from them,” we required FERC to disaggregate that
high-voltage subcategory and allocate those costs regionally.
Id.

The crux of our holding in Old Dominion—that where
FERC has found that a category of projects has significant
regional benefits, it must permit regional cost-sharing for that
category—is in line with FERC’s challenged orders. As the
Commission explained in one of the orders on review, “[u]nlike
the situation in [Old Dominion], neither MISO nor the
Commission . . . has made the finding that MISO projects
between 100 kV and 230 kV produce ‘significant regional
benefits.’” Order Accepting Proposal, 172 FERC ¶ 61,095, P
49 (quoting Old Dominion, 898 F.3d at 1257, 1261). Indeed,
FERC’s decision to distinguish between higher and lower
voltage categories in the challenged orders is only bolstered by
our decision in Old Dominion, which recognized that high-
 26
voltage and low-voltage projects are “significantly different
with regard to which utilities benefit from them.” 898 F.3d at
1262. FERC’s decision to allow the 230 kV threshold is
therefore consistent with Old Dominion.

b. FERC’s orders rejecting MISO’s first two proposals
did not obligate it to reject MISO’s third proposal. The
petitioners assert that in rejecting the first two, FERC
determined that MISO could calculate the regional
beneficiaries of sub-230 kV economic projects, and that
because the costs of such projects could be allocated to other
benefitting zones, MISO’s proposals failing to make any such
allocation violated the cost-causation principle. By accepting
the third proposal, the petitioners argue that MISO “asked
FERC to stick its regulator head in the sand, and FERC agreed
to do that.” Petitioners’ Br. at 46. After FERC twice found
that MISO could measure the regional beneficiaries of sub-230
kV projects, petitioners say FERC essentially held here that, as
long as MISO did not actually calculate any regional benefits,
“it could pretend that no regional benefits existed.” Id.

The problem with petitioners’ argument is that it depends
on a factual conclusion that FERC never made in rejecting the
two prior proposals: that sub-230 kV projects categorically
produce significant regional benefits. To the contrary, as
FERC explained, “[t]he June 2019 Order and the March 2020
Order did not confer any finding on whether lower-voltage
transmission facilities produced regional benefits.” Proposal
Rehearing Order, 173 FERC ¶ 61,203, P 16.

When FERC rejected MISO’s first proposal, it found that
the new Local Economic Project category for certain sub-230
kV projects was “inconsistent with the cost causation
principle” because of how the proposal defined that category.
2019 Proposal Rejection, 167 FERC ¶ 61,258, P 56. The
 27
proposed definition, FERC emphasized, would have included
only projects with actual regional benefits, because “a project
could not qualify as a Local Economic Project if MISO were
unable to calculate a region-wide 1.25-to-1 benefit-to-cost
ratio.” Id. P 64. As proposed, then, MISO planned to calculate
those regional benefits and then “ignore the results . . . in order
to allocate the costs only to the Transmission Pricing Zone(s)
where the project is located.” Id. P 63. FERC rejected that
proposal. But it did so on the basis that MISO cannot have a
category of projects with identified—indeed, definitional—
regional benefits that it ignores for cost-allocation purposes. It
did not, however, hold that sub-230 kV projects, as a general
matter, have significant regional benefits.

FERC made a similarly limited holding in rejecting
MISO’s second proposal. This time, MISO eliminated the
requirement that Local Economic Projects meet a regional
benefit-to-cost ratio, but it still proposed to evaluate such
projects using regional benefit metrics and then to ignore those
benefits, if any were found, by allocating the costs to only the
local zone. 2020 Proposal Rejection, 170 FERC ¶ 61,241, PP
59-60. FERC again held that MISO could not calculate
regional benefits and then disregard those benefits in allocating
the costs of projects. Id. P 67. But, again, FERC did not hold
that such projects actually produce significant regional benefits
in any kind of consistent way such that their costs are
categorically required to be allocated on a regional basis. At
most, it held that it was “likely” that MISO would have to
“disregard regional transmission benefits that it will
necessarily uncover.” Id. That sort of conjecture—that if
MISO calculated regional benefits for sub-230 kV it might find
some—is not the same as FERC finding as a factual matter that
sub-230 kV projects produce the kind of “significant” regional
benefits that we found problematic in Old Dominion—and
 28
certainly not that it so found on such as a scale as to require
MISO to further lower the threshold. See 898 F.3d at 1260.

To be sure, in rejecting MISO’s first two proposals, FERC
evidently accepted MISO’s assumption that it was at least
possible, if not likely, that some sub-230 kV projects could
produce regional benefits. But that acceptance alone does not
establish that 230 kV is an unreasonable threshold. First, Old
Dominion concerned a category of projects conceded to have
significant regional benefits, a phrase that appears in the
opinion eleven times. As explained, petitioners’ efforts to
show incidental regional benefits do not reach that level, nor is
significant regional benefit established by FERC having told
MISO it could not ignore regional benefits, if it found them, in
allocating costs. Second, Old Dominion analyzed FERC’s
justifications for its treatment of categories of projects. See 898
F.3d at 1261-63. We have not read Order No. 1000 to require
that cost allocation be done on a project-by-project basis. See
Long Island, 27 F.4th at 715. Petitioners have never suggested
that there is a distinct subtype of sub-230 kV projects that
produce significant regional benefits that should be cut away
from the rest and regionally cost-allocated. Cf. Old Dominion,
898 F.3d at 1261-63. It thus had the burden to prove that the
entire category was problematic. FERC’s prior rejections,
which were based on the illogic of MISO’s proposed treatment
of regional benefits, if and when they arose, does not meet that
bar.

We share petitioners’ concern that FERC’s holding here—
that as long as MISO does not attempt to calculate any regional
benefits, it may locally allocate the costs of sub-230 kV
projects—encourages a head-in-the-sand approach to cost
allocation. When read together, the three FERC opinions seem
to allow regional transmission organizations to allocate the
costs of lower voltage projects only to the local zone despite
 29
possible regional benefits so long as the transmission
organization does not calculate those regional benefits. But the
question before us is narrow: whether a 230 kV threshold for
Market Efficiency Projects is arbitrary and capricious. The
record here, including the orders rejecting the first two
proposals, does not reflect any determination that sub-230 kV
projects in fact produce regional benefits in such a significant,
categorical way as to require regional cost allocation. And
FERC’s holding is limited to lower voltage projects, which
again generally have more local benefits. See Old Dominion,
898 F.3d at 1261. We accept FERC’s explanation that the
orders on review comport with the two prior orders.

c. We have little trouble concluding that FERC
reasonably distinguished its order in Northern Indiana Public
Service Co., 155 FERC ¶ 61,058 (2016), concerning
interregional transmission planning between MISO and PJM.
In that proceeding, FERC held that MISO’s tariff was unjust
and unreasonable because its minimum voltage threshold for
interregional economic transmission projects excluded certain
projects in the MISO-PJM interregional transmission planning
process from consideration even though they would “benefit
both regions.” Id. P 129. The Quick Hit Analysis, an effort by
MISO and PJM to identify potential interregional economic
transmission projects, had found potential projects rated below
345 kV, including down to 138 kV, with “significant economic
benefits to both” regions. Id. P 131; see also id. P 100 n.175.
FERC therefore “require[d] MISO to reduce its minimum
voltage threshold for a[n] interregional economic transmission
project from 345 kV to 100 kV,” id. P 129, which was PJM’s
threshold, id. P 95. In so holding, FERC explicitly stated that
it was “not requiring MISO to change the Market Efficiency
Project 345 kV . . . threshold[] for MISO regional transmission
projects.” Id. P 131 n.238.
 30
Petitioners’ argument that FERC’s holding in Northern
Indiana mandates a 100 kV threshold for regional, and not just
interregional, projects does not hold up. In Northern Indiana,
FERC was addressing a characteristic of the interregional
planning process: “[A]n interregional economic transmission
project had to meet both MISO’s minimum voltage threshold
of 345 kV and PJM’s voltage threshold of 100 kV to be
constructed.” Proposal Rehearing Order, 173 FERC ¶ 61,203,
P 14 (emphasis in original). In that context, it made sense for
FERC to require MISO to move its threshold down to meet
PJM’s 100 kV threshold to encourage project development.
FERC therefore reasonably viewed Northern Indiana as “tied
to the specific circumstances involved and the specific findings
that the Commission made with regard to the record evidence
in that proceeding.” Id.; see also Entergy Arkansas, LLC v.
FERC, No. 20-1262, 2022 WL 2760877, at *7 (D.C. Cir. July
15, 2022) (explaining that FERC found significant regional
benefits for lower voltage interregional projects, but not for
regional projects). On the record in that case, FERC
determined that projects down to 100 kV would benefit both
PJM and MISO and MISO should therefore lower its bar to
match PJM’s. That holding did not announce “the general
principle that 100 kV is a just and reasonable voltage threshold,
but 345 kV is not, in all circumstances.” Id. “[W]e defer to an
agency’s reasonable application of its own precedents,” so
accept FERC’s distinction of Northern Indiana here. Nat’l
Ass’n of Regul. Util. Comm’rs v. FERC, 475 F.3d 1277, 1284
(D.C. Cir. 2007).

II. FERC’s approval of MISO’s proposed exception from
competitive solicitation for Immediate Need Reliability
Projects was reasonable.

Petitioners argue that FERC’s decision to approve MISO’s
Immediate Need Reliability Exception should be vacated
 31
because (1) evidence shows that the exception is unlikely to be
used in a “limited” way; and (2) MISO’s version of the
exception is inconsistent with FERC’s acceptance of similar
exceptions in other regions. Neither argument shows FERC’s
order to be arbitrary.

As explained, Order No. 1000 disapproved tariff
provisions giving incumbent transmission providers a right of
first refusal to build transmission facilities selected in a
regional transmission plan. See LSP 2022, 28 F.4th at 1287.
Instead, it requires the region to hold a competitive developer-
selection process. Id. “But the Commission recognized an
exception central to this dispute: if the time needed to solicit
and conduct competitive bidding would delay the project and
thereby threaten system ‘reliability,’ then competitive bidding
would not be required.” Id. (quoting Order No. 1000, 136
FERC ¶ 61,051, P 329). Several regional transmissions
organizations thus have FERC-approved immediate need
reliability exceptions to competitive bidding. See, e.g., ISO
New England Inc., 171 FERC ¶ 61,211, PP 1-3 (2020); PJM
Interconnection, L.L.C., 171 FERC ¶ 61,212, PP 3, 16 (2020);
Sw. Power Pool, Inc., 171 FERC ¶ 61,213, PP 3, 47 (2020);
ISO New England Inc., 172 FERC ¶ 61,293, PP 22-32 (2020).

As noted above, in approving those exceptions, FERC has
applied five requirements for transmission organizations to
meet when using the exception: (1) the project is needed in
three years or less to fix a reliability problem; (2) the
transmission organization “must separately identify and then
post an explanation of the reliability violations and system
conditions in advance for which there is a time-sensitive need,
with sufficient detail of the need and time-sensitivity”; (3) the
transmission organization must give stakeholders a written
description of the decision to designate an incumbent
transmission owner and the circumstances surrounding the
 32
immediate reliability need; (4) “[s]takeholders must be
permitted time to provide comments in response to the project
description,” which must be made public; and (5) the
transmission organization must maintain and post a list of prior
year designations of immediate-need projects. ISO New
England Inc., 171 FERC ¶ 61,211, P 3.

Petitioners’ first argument—that the exception will not be
sufficiently limited—does not succeed. Although we are
concerned that the number of exempted reliability projects
might surpass those open to competition, we owe considerable
deference to FERC’s expertise in setting the appropriate
balance between the benefits of competition and the need to
address pressing reliability problems in the power grid. LSP
2022, 28 F.4th at 1291. And FERC reasonably rejected the
petitioners’ evidence for its contention that the exception
would be overused. Recall that MISO’s proposed exception
does not cover mere Baseline Reliability Projects and is instead
limited to those that also qualify as Market Efficiency Projects.
In this case, the petitioners’ claim rests on the fact that “85%
of Baseline Reliability Projects approved by MISO were
needed in 36 months or less,” which they say makes it “likely”
that most Baseline Reliability Projects that also qualify as
Market Efficiency Projects will probably be needed within
three years and thus be exempted from competitive bidding.
Petitioners’ Br. at 53. FERC considered the statistic and
reasonably called it “inflated” because of the mismatch
between the data and the category of projects at issue.
Proposal Rehearing Order, 173 FERC ¶ 61,203, P 21; see also
Petitioners’ Reply Br. at 29 (conceding that “the number of
combined projects may not be known”). 4

4
Contrary to petitioners’ suggestion, FERC did not depart from its
2013 precedent in ISO New England, Order on Compliance Filings,
143 FERC ¶ 61,150, PP 237-38 (2013), in which FERC prevented
 33
Second, the petitioners’ argument that the exception
departs from similar proposals in other regions because those
entities are required to post their explanation of need before
designating the incumbent owner as the developer fares no
better. The petitioners emphasize that MISO’s proposal lets it
provide an explanation of need only after designating an
incumbent developer. And they claim that when FERC
approved MISO’s post hoc disclosure proposal, it ignored the
wording and intent behind the criteria for immediate-need
exceptions it had previously mandated, thereby depriving
objectors of any opportunity to dispute whether the project
qualifies for the exemption until after the incumbent has
already begun the project, confounding the purpose of the
notice.

We conclude FERC adequately justified its decision
regarding the timing of the requisite notice. FERC determined
that its precedents adopting criteria for the use of the immediate
need exception do not necessarily require MISO to post before
designating the incumbent. As FERC explained, any concern
regarding the timing of MISO’s notice is adequately
ameliorated by the fact that stakeholders have ample
opportunity to provide input during the Baseline Reliability
Study and transmission planning process, which happens
before a project is designated an exempted project. And that
opportunity is supplemented by the sixty-day comment period
that follows the notice that an exempted project has been
approved. FERC acted within its discretion when it held that
the concern motivating its notice requirement in its prior cases
is “sufficient time for stakeholder input,” and that the
mechanisms MISO has in place to receive that input suffice to

ISO New England from exempting projects needed within five years,
instead requiring a three-year limit. 143 FERC ¶ 61,150, PP 237-38.
The three-year period it applied here to MISO’s proposal is the same
requirement it applied there.
 34
accomplish that goal. Proposal Rehearing Order, 173 FERC
¶ 61,203, P 23. Again, FERC’s “interpretation of the
parameters set by [its] own orders” and its “judgment involving
regulatory policy at the core of [its] mission,” are “entitled to
substantial deference. Sacramento Mun. Util. Dist. v. FERC,
616 F.3d 520, 533 (D.C. Cir. 2010).

CONCLUSION

For the foregoing reasons, we deny the petitions for
review.

So ordered.
 ROGERS, Circuit Judge, dissenting in part and concurring
in part. LSP petitions for review of FERC orders in two cases,
contending that it has been denied the opportunity to bid on
transmission projects. A threshold issue was whether LSP
demonstrated that it has standing under Article III of the
Constitution to bring these challenges. At oral argument in
both cases LSP’s experienced counsel asserted that standing
was self-evident, but candidly acknowledged in response to
questions1 that LSP’s filings did not include specific evidence
of its injury-in-fact, as required to establish standing.2 Because
detailed averments in LSP’s supplemental affidavits filed in
response to the court’s order, see Am. Orders, No. 20-1421 &
No. 20-1465 (Feb. 28, 2022) (Rogers, J., not joining), suffice
to demonstrate standing, I concur in holding LSP has standing
and in rejecting LSP’s merits challenges to FERC’s orders.

I.

To establish standing under Article III, a party “must have
(1) suffered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.” Twin Rivers Paper
Co. LLC v. SEC, 934 F.3d 607, 612 (D.C. Cir. 2019) (quoting
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016)). “The party
invoking the federal courts’ jurisdiction bears the burden of
establishing each of those elements.” Util. Workers Union of
Am. Local 464 v. FERC, 896 F.3d 573, 577 (D.C. Cir. 2018)
(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
Where, as here, the petitions challenge FERC’s orders directly,
the petitioner’s “burden of production” is “the same as that of
a plaintiff moving for summary judgment in the district court:
it must support each element of standing ‘by affidavit or other
evidence,’ including whatever evidence the administrative

1
See OA Tr. No. 20-1421, at 14; OA Tr. No. 20-1465, at 11-12.
2
See OA Tr. No. 20-1421, at 14; OA Tr. No. 20-1465, at 11-12, 21-
23.
 2
record may already contain.” Id. (quoting Sierra Club v. EPA,
292 F.3d 895, 899-900 (D.C. Cir. 2002)). More is “requir[ed]”
than “representations of counsel” in briefs, Sierra Club, 292
F.3d at 901, or a party’s “bare assertions,” Util. Workers Union,
896 F.3d at 578. Standing may be self-evident “if the
complainant is ‘an object of the action (or foregone action) at
issue.’” Sierra Club, 292 F.3d at 900 (quoting Lujan, 504 U.S.
at 561-62). But when, as here, “a petitioner is not directly
regulated by the challenged [order],” Am. Fuel & Petro. Mfrs.
v. EPA, 3 F.4th 373, 379 (D.C. Cir. 2021), standing is
“ordinarily ‘substantially more difficult’ to establish,” Ass’n of
Am. Physicians & Surgeons, Inc. v. Schiff, 23 F.4th 1028, 1032
(D.C. Cir. 2022) (quoting Lujan, 505 U.S. at 562). More
specifically, if standing is not “self-evident,” then there must
either be evidence in the administrative record of the requisite
injury or petitioners must file sworn affidavits with the opening
briefs “substantiat[ing]” these injuries. Sierra Club, 292 F.3d
at 900; see D.C. Circuit Rule 28(a)(7) (incorporating Sierra
Club, 292 F.3d at 900-01).

It is well settled that the petitioner invoking this court’s
jurisdiction has the burden to provide evidence that it suffers
an injury “that is both ‘concrete and particularized’ and ‘actual
or imminent, not conjectural or hypothetical,’” New England
Power Generators Ass’n, Inc. v. FERC, 707 F.3d 364, 368
(D.C. Cir. 2013) (quoting Lujan 504 U.S. at 560-61), because
the injury “has either transpired or is ‘imminent.’” No Gas
Pipeline v. FERC, 756 F.3d 764, 767 (D.C. Cir. 2014) (citing
Occidental Permian Ltd. v. FERC, 673 F.3d 1024, 1026 (D.C.
Cir. 2012)). The imminence requirement “ensure[s] that the
alleged injury is not too speculative for Article III purposes,”
Union of Concerned Scientists v. Dep’t of Energy, 998 F.3d
926, 929 (D.C. Cir. 2021) (quoting Clapper, 568 U.S. at 409),
so assertions of incurring harm “some day,” Kans. Corp.
Comm’n v. FERC, 881 F.3d 924, 930 (D.C. Cir. 2018) (quoting
 3
Lujan, 504 U.S. at 564), or dependent upon an “attenuated
chain” of interim steps, id. (quoting Clapper, 568 U.S. at 410),
are insufficient. Rather, the petitioner must “show a
‘substantial probability’ that all of these steps will occur and, if
so, when.” Id. (quoting Am. Petroleum Inst. v. EPA, 216 F.3d
50, 63 (D.C. Cir. 2000)).

Neither the Supreme Court nor this court has held that a
bare assertion that a petitioner is “ready, willing, and able” to
compete is sufficient to establish Article III injury-in-fact.
Contra No. 20-1421, slip op. at 16; No. 20-1465, slip op. at 14.
Nor was this argument advanced by LSP in its opening briefs.
Cf. Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir.
2005). As the court recently reiterated, “general averments,
conclusory allegations, and speculative some day intentions are
inadequate to demonstrate injury in fact.” Finnbin, LLC v.
Consumer Prod. Safety Comm’n, No. 21-1180 (Aug. 2, 2022)
(slip op. at 13) (quoting Worth v. Jackson, 451 F.3d 854, 858
(D.C. Cir. 2006)). Thus, in LSP Transmission Holdings, LLC
v. FERC (“LSP I”), 700 F. App’x 1 (D.C. Cir. 2017), the court
found no standing where petitioners “identified no specific
project” for which they were prevented from competing. Id. at
*2. By contrast, in LSP Transmission Holdings II, LLC v.
FERC (“LSP II”), 28 F.4th 1285 (D.C. Cir. 2022), the court
held petitioners had standing when they “identified” “thirty []
projects” for which they were “denied the ability to bid.” Id. at
1289.

II.

Although this court has identified limited circumstances
where it may exercise its discretion to request that parties
submit supplemental affidavits to establish their standing,
those circumstances did not exist in the instant cases. For
example, “if the parties reasonably, but mistakenly, believed
 4
that the initial filings before the court had sufficiently
demonstrated standing, the court may . . . request supplemental
affidavits and briefing to determine whether the parties have
met the requirements for standing.” Ams. For Safe Access v.
DEA, 706 F.3d 438 (D.C. Cir. 2013) (citing Pub. Citizen, Inc.
v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1296–
97 (D.C. Cir. 2007)). And although LSP’s counsel in both
cases acknowledged the insufficiency of their initial filings,
they never requested that the court allow them to provide
supplemental affidavits, as had occurred in American Library
Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005). See Cmtys.
Against Runway Expansion, Inc. v. FAA, 335 F.3d 678, 684
(D.C. Cir. 2004). Indeed it appears that LSP’s reluctance, in
the absence of a court order to supplement the record here may
stem from interim action by the Commission to afford
petitioners like LSP the relief they sought, namely for the
Commission to reconsider its requirements for approving
transmission development plans. See Advance Notice of
Proposed Rulemaking (July 15, 2021) (“2021 ANPR”), RM21-
17-000, where there is a broad and comprehensive inquiry into
the effects of its Orders on transmission planning and
development, see 2021 ANPR, at 26, where LSP has submitted
lengthy comments; No. 20-1421, Pet’rs’ Br. at 21-25; No. 20-
1465, Pet’rs’ Br. at 26-30.

Consequently, upon expanding circumstances for
supplemental filings, the court ordered LSP to file
supplemental submissions “to explain and substantiate their
claim of standing.” See Am. Orders, at 1 (Feb. 28, 2022)
(Rogers, J., not joining). 3 In the two cases now before the
3
LSP’s supplemental briefs in combination with its counsels’
statements at oral argument suggest that petitioners “reasonably, but
mistakenly, believed” that their initial filings were adequate to
demonstrate Article III Standing. See Am. Orders, at 1-2 (Feb. 28,
2022) (Rogers, J., not joining); OA Tr. No. 20-1421, at 6, 13, 22-23,
 5
court, LSP’s initial submissions were insufficient to establish
standing because they “failed to identify a ‘specific project’”
for which petitioners were prevented from competing. LSP II,
28 F.4th at 1289 (quoting LSP I, 700 F. App’x at *2). Being
“ready, willing, and able” is not the standard under relevant
precedent. This was clear at oral argument when LSP’s
counsel could not identify evidence of its standing in either
case. In No. 20-1421, the court inquired where it could find
evidence that LSP “would have bid on” specific projects that
were “erroneously” categorized. OA Tr. No. 20-1421, at 14.4
Counsel responded citing pages in the record that do not
identify such projects. Id. And when the court asked counsel
where the record stated that LSP “competes on all projects,” he
did not point the court to the information it requested. Id. at
14. Likewise in No. 20-1465, counsel for LSP did not cite
record evidence when asked to identify specific projects for
which his client would compete, OA Tr. No. 20-1465, at 11-12,
and did not assist the court when he was later prompted to
“help” it find standing. Id. at 21-23.

In both cases, however, LSP’s supplemented records
rectify the deficiencies of its initial filings. In No. 20-1421,

71; Supp. Br. Standing, No. 20-1421, at 3, 7, 9 (Mar. 9, 2022); OA
Tr. No. 20-1465, at 11, 20; Supp. Br. Standing, No. 20-1465, at 3-4,
6, 8 (Mar. 9, 2022).
4
Judge Pillard asked counsel “But where can I find a statement such
as a manager declaration or, you know, CEO declaration, saying, we
would have bid on these, these ones that are, that are erroneously
treated as local rather than regional?” OA Tr. No. 20-1421, at 14.
Judge Rogers asked counsel where in the record it stated that his
client “competes on all projects.” Id. at 14. Judge Pillard also asked
counsel “Where did you identify that those were projects that your
clients would bid on?” OA Tr. No. 20-1465, at 11-12.
 6
LSP’s President Paul Thessen avers that LSP would have
competed on twelve specific projects identified in the
complaint had the projects been subjected to competition: “I
can state with confidence that had MISO conducted a
competitive solicitation process for Baseline Reliability
Projects providing regional benefits, such as the 12 projects
referenced in the complaint, LS Power Midcontinent would
have submitted proposals and constructed any awarded
projects when and where permitted to do so.” Thessen Aff.,
No. 20-1421, at 8 (Mar. 9, 2022). Additionally, Thessen
averred that LSP would have competed for 113 projects
approved by MISO in 2019 if competition had been available,
and that LSP “would have competed on 2020 and 2021 projects
when and where permitted had any been subject to
competition.” Id. at 4. In No. 20-1465, Thessen’s affidavit
avers “unequivocally yes,” that LSP’s affiliates
“would . . . submit proposals if regionally beneficial economic
projects between 100 kV and 229 kV or Market Efficiency
Projects that are coupled with a Baseline Reliability Project
were available for competition.” Thessen Aff., No. 20-1465,
at 10 (Mar. 9, 2022).

Further, Thessen points to projects at pages 11-13 of LSP’s
Complaint as ones that have been excluded from competition
due to their classification by the Midcontinent System
Operator, Inc. (“MISO”) in the “Other Project Category.” Id.
at 9. Thessen avers “with confidence that had MISO conducted
a competitive solicitation process for some or all the economic
projects that are the subject of the Complaint,” LSP’s affiliates
“would have submitted proposals and constructed any awarded
projects when and where permitted to do so.” Id. at 11.

Thessen’s affidavits thereby suffice under the relevant
precedent to establish LSP’s Article III standing by identifying
specific projects for which LSP would compete, see LSP II, 28
 7
F.4th at 1289 (citing LSP I, 700 F. App’x at 2), such that it is
actually or imminently harmed by the challenged orders, see
Clapper, 568 U.S. at 409-10. In both cases, therefore,
Thessen’s declarations establish an imminent harm as a result
of the challenged orders by “distinguish[ing]” LSP from “any
other party who might someday wish to build” a facility. N.Y.
Reg’l Interconnect, Inc. v. FERC, 634 F.3d 581, 587-88 (D.C.
Cir. 2011).

III.

In view of the supplemented record establishing LSP’s
Article III standing under binding precedent, I reach the merits
of the challenges to FERC’s orders. For the reasons stated by
the court in No. 20-1421, slip op. at 19-34 and No. 20-1465,
slip op. at 17-34, I conclude that the petitions for review lack
merit because FERC’s decisions were not arbitrary and
capricious. Rather, while acknowledging flaws in some of
LSP’s arguments on appeal, the court concluded that the
Commission provided reasoned explanations for denying
LSP’s petitions for review. For instance, noting the strength of
LSP’s new evidence to show spillover of Baseline Reliability
Project benefits to zones other than the local zone under the
location cost-based allocation approach, it was a sufficiently
small subset of projects (twelve out of 400) that the
Commission, in light of its experience and expertise and
responses to LSP’s arguments, could reasonably conclude that
setting aside the cost-allocation method for all the projects was
not required. See No. 20-1421, slip op. Part II.B, at 20.

Accordingly, I dissent in part and concur in part.