United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 24, 2017 Decided June 15, 2018

No. 16-1111

OLD DOMINION ELECTRIC COOPERATIVE,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

DUKE ENERGY CORPORATION, ET AL.,

INTERVENORS

On Petition for Review of Orders of the 

Federal Energy Regulatory Commission

Adrienne Elizabeth Clair argued the cause for petitioner. 

With her on the briefs was Dennis Lane.

Susanna Y. Chu, Attorney, Federal Energy Regulatory 

Commission, argued the cause for respondent. With her on the 

brief were Robert H. Solomon, Solicitor, and Elizabeth E. 

Rylander, Attorney.

Joseph W. Mayes was on the brief for intervenor-movant 

Independent Market Monitor for PJM in support of respondent.

Before: TATEL, GRIFFITH and MILLETT, Circuit Judges.
2

MILLETT, Circuit Judge: The weather conditions giving 

rise to this case may have been out of the ordinary, but the legal 

principles controlling its resolution are decidedly routine. In 

January 2014, a period of exceptionally cold temperatures, 

commonly referred to as a “Polar Vortex,” descended on the 

Eastern United States. As temperatures plunged, the demand 

for electricity soared. In working to help meet that demand, 

Old Dominion Electric Cooperative, an electricity generator

and provider, found that its operational costs outstripped the 

amounts it could charge for electricity under the governing 

tariff. Old Dominion then asked the Federal Energy 

Regulatory Commission to waive provisions of the governing 

tariff retroactively so that it could recover its costs. The 

Commission declined on the ground that such retroactive 

charges would violate the filed rate doctrine and the rule 

against retroactive ratemaking. The Commission was right to 

do so, and we accordingly deny Old Dominion’s petition for 

review. We also deny the motion of the Independent Market 

Monitor to intervene, but will accord it amicus curiae status.

I

A

The Federal Power Act charges the Commission with 

ensuring that “[a]ll rates and charges made, demanded, or 

received by any public utility for or in connection with the 

transmission or sale of electric energy subject to the 

jurisdiction of the Commission * * * shall be just and 

reasonable.” 16 U.S.C. § 824d(a). To effectuate those goals, 

regulated utilities must file with the Commission and keep 

open for public inspection a schedule of the rates they intend to 

charge ratepayers. Id. § 824d(c), (d). While the Act permits 

regulated utilities to set their filed rate unilaterally and record 
3

it in a tariff, see id. § 824d(c), the rates actually charged may 

not exceed those on file with the Commission, Towns of 

Concord, Norwood, and Wellesley Mass. v. FERC, 955 F.2d 

67, 68 (D.C. Cir. 1992). 

The Act also empowers the Commission to fix or change 

rates and charges, but only prospectively. 16 U.S.C. § 824e(a). 

When a utility wishes to alter the rates it charges, it must 

provide sixty-days’ notice to the Commission and file new rate 

schedules “stating plainly the change or changes to be made in 

the schedule or schedules then in force and the time when the 

change or changes will go into effect.” Id. § 824d(d). The 

Commission may waive the sixty-day notice requirement for 

good cause, but the Commission has no authority under the Act 

to allow retroactive change in the rates charged to consumers. 

See id.; Columbia Gas Transmission Corp. v. FERC, 895 F.2d 

791, 795–796 (D.C. Cir. 1990) (Columbia III); see also 

Consolidated Edison Co. v. FERC, 958 F.2d 429, 434 (D.C. 

Cir. 1992).

Those rules mandating the open and transparent filing of 

rates and broadly proscribing their retroactive adjustment are 

known collectively as the “filed rate doctrine.” At bottom, that 

doctrine means that “a regulated seller of [power]” is 

prohibited “from collecting a rate other than the one filed with 

the Commission,” and “the Commission itself” cannot 

retroactively “impos[e] a rate increase for [power] already 

sold.” Arkansas Louisiana Gas Co. v. Hall, 453 U.S. 571, 578 

(1981). 

In a similar vein, the rule against retroactive ratemaking

“prohibits the Commission from adjusting current rates to 

make up for a utility’s over- or under-collection in prior 

periods.” Towns of Concord, 955 F.2d at 71 n.2. That 

otherwise categorical prohibition against retroactively 
4

charging rates that differ from those that were on file during the 

relevant time period yields in only two limited circumstances: 

(i) when a court invalidates the set rate as unlawful, and (ii) 

when the filed rate takes the form not of a number but of a 

formula that varies as the incorporated factors change over 

time. See West Deptford Energy, LLC v. FERC, 766 F.3d 10, 

22–23 (D.C. Cir. 2014) (compiling cases). Neither of those 

exceptions apply to this case.1 

B

PJM Interconnection, LLC (“PJM”) is a Regional 

Transmission Organization and Independent System Operator 

that exercises operational control over, but not ownership of, 

the electrical transmission facilities belonging to its 

participating members. See Midwest ISO Transmission 

Owners v. FERC, 373 F.3d 1361, 1364 (D.C. Cir. 2004). The

Commission has tasked PJM, as a Regional Transmission 

Organization, with supervising and coordinating the movement 

of electricity throughout its market area, 18 C.F.R. § 35.34,

which comprises thirteen states and the District of Columbia, 

see Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288,

1292–1293 (2016). 

 

1 The latter exception for formulaic rates is not really an 

exception at all. It just recognizes that sometimes a rate is set by a 

predetermined and concrete formula rather than a pre-set number. 

See, e.g., Public Utilities Comm’n v. FERC, 254 F.3d 250, 254 (D.C. 

Cir. 2001) (explaining that, because the charged rate is subject to 

change according to the formula’s fixed and predictable components, 

fluctuations in the overall cost to consumers under a true formula rate 

are not retroactive even though the ultimate charge to the customer 

may be unknown at the time of purchase).
5

One way that electricity is transferred throughout the PJM 

market is through competitive auctions. See Hughes, 136 S. 

Ct. at 1293. In same-day auctions, generators bid to provide 

the immediate delivery of electricity needed to slake sudden 

spikes in demand. In next-day auctions, generators bid to 

satisfy anticipated near-term demand. And in a “capacity 

auction,” generators make bids that, if accepted, bind them to 

providing needed electricity in the longer term. See id. 

Old Dominion Electric Cooperative is a not-for-profit 

electrical generation and transmission utility that participates 

as both a generator and a load-serving entity (that is, a public 

utility) in the PJM market. This case involves three of Old 

Dominion’s natural-gas-fired electrical power plants in 

Maryland and Virginia: Marsh Run, Louisa, and Rock Springs. 

Each of those facilities is a “generation capacity resource,” 

which means that Old Dominion contractually committed itself 

to offer all of those units’ available generation capacity into 

PJM’s daily market and to generate electricity whenever called 

upon by PJM. Old Dominion Elec. Coop., 151 FERC ¶ 

61,207 at P 2 n.2 (2015). 

PJM fulfills its oversight and market management 

responsibilities through rules prescribed in (1) the PJM Open 

Access Transmission Tariff and (2) the PJM Operating 

Agreement, to which participating generators like Old 

Dominion subscribe. Several provisions of those instruments 

bear on the dispute in this case.

First, the Operating Agreement empowers PJM to take 

“measures appropriate to alleviate an Emergency, in order to 

preserve reliability” in the electricity market and to meet

consumer need. Agreement § 1.6.2(vii). That authority 

includes directing generators “to start, shutdown, or change

[the] output levels of [their] generations units[.]” Agreement 
6

§ 1.7.20(b). According to Old Dominion, generators 

“understand[] PJM dispatch instructions to be determinations 

with which [they are] expected to comply” under the PJM 

Tariff § 1.8.2(a). J.A. 56 n.2.

Second, generation capacity resources “must offer” 

capacity into the same-day and day-ahead auctions. 

Agreement § 1.10.1A(d). That “must offer” requirement 

commands generators to submit offers for all “available 

capacity” of any designated capacity generation facilities.

Tariff § 1.10.1A(d).

Third, the Tariff caps the prices at which generators may 

offer their capacity into the day-ahead market at 

$1,000/megawatt-hour. Tariff § 1.10.1A(d)(viii).

Finally, Commission regulations require transmission 

organizations, like PJM, to self-monitor their markets and 

report any issues affecting their reliability, efficiency, and nondiscriminatory operation. 18 C.F.R. § 35.34(k)(6). PJM 

retained a private company, Monitoring Analytics, LLC 

(“Monitor”) to act as its independent market monitor. Monitor 

has moved to intervene in this appeal.

C

In January 2014, a Polar Vortex brought extraordinarily 

cold temperatures for an unusually prolonged period of time to 

broad swaths of the continental United States, including the 

PJM market region. The plunging temperatures triggered a 

corresponding surge in the demand for electrical power to heat 

homes and businesses. Increased demand for power generation 

caused a regional spike in the price of natural gas, which is one 

of the primary fuels that generators like Old Dominion use to 

produce electricity. 
7

Invoking market rules, PJM used its emergency authority

to make sure that the electrical service needed to meet 

consumer demand was available and reliable. As part of those 

actions, beginning in early January, PJM repeatedly called on 

its generators to prepare for additional outputs of electricity. 

As relevant here, PJM tasked Old Dominion with ensuring that 

three of its generation capacity resources (Rock Springs, 

Louisa, and Marsh Run) would be able to fulfill their 

contractual commitments and run at full capacity during 

several anticipated acute spikes in energy demand: January 7–

9, January 23, and January 28. 

To meet that need, Old Dominion had to purchase natural 

gas at inflated prices. In turn, Old Dominion’s marginal costs 

to generate electricity spiked to approximately 

$1,200/megawatt-hour. PJM Interconnection, LLC, 146 FERC 

¶ 61,041 at P 2 (2014). But the Tariff prohibited it from 

submitting bids for its electricity in the day-ahead auction that 

exceeded $1,000/megawatt-hour. In other words, runaway 

generation costs driven by extreme weather and market 

conditions ran headlong into the PJM Tariff’s pre-set rate cap. 

As a result, some generators, including Old Dominion, were 

forced temporarily to sell energy capacity at a loss. See also

Duke Energy Corp. v. FERC, No. 16-1133 (D.C. Cir. June 15, 

2018).

Old Dominion sought assurances from PJM that it would 

be able to recover those losses. On January 21, 2014, PJM 

posted a statement on its website that reiterated the generators’ 

contractual obligation to offer full capacity into the day-ahead 

market at a price not to exceed $1,000/megawatt-hour, 

notwithstanding the unanticipated circumstances. PJM also 

expressed its intent to file with the Commission “as soon as 

practical” a “retroactive waiver” of the rate cap to compensate 
8

those generation capacity resources whose costs for electricity 

generation had exceeded the Tariff’s rate cap. J.A. 137. PJM 

further stated that it would file a second waiver request seeking 

a temporary, prospective waiver of the rate cap provision. 

Two days later, PJM filed two concurrent waiver requests 

with the Commission. In one waiver, PJM requested 

immediate “make whole” relief—to be effective the next day 

(i.e., January 24, 2014)—that would allow generators to 

recover the difference between the actual costs of generating 

capacity and the Tariff’s rate cap for “must offer” bids 

submitted in the price auctions for forthcoming electricity 

generation. 

The second waiver sought to stop the financial 

hemorrhaging by waiving the filed Tariff’s rate cap “only 

prospectively.” J.A. 140. With that waiver, generation 

capacity resources that were contractually obligated to 

continue providing electricity could submit bids into the sameday and next-day auctions that exceeded the $1,000/megawatthour rate cap. That waiver would apply going forward until 

March 31, 2014. 

Notably, and contrary to PJM’s January 21 website post, 

neither waiver requested retroactive relief. The Commission 

promptly granted both waivers. PJM Interconnection, LLC, 

146 FERC ¶ 61,041, on reh’g, 149 FERC ¶ 61,059 (2014); 

PJM Interconnection, LLC, 146 FERC ¶ 61,078 (2014), on 

reh’g, 149 FERC ¶ 61,060 (2014).

As it turned out, PJM had overestimated the amount of 

energy that would be required on several of the Polar Vortex’s 

coldest days. To correct its mistake, PJM reduced or cancelled 

some of its orders for generation services. 
9

But that was too late to help the many generators that had 

purchased the expensive natural gas needed to supply the 

forecasted output and that had sunk start-up costs responding 

to now-cancelled or curtailed orders. Old Dominion had to 

resell some of its excess natural gas at a loss after the surge in 

demand had subsided and the market price had dropped. And 

it absorbed losses on the excess quantities it could not, or did

not, resell. More specifically, the Polar Vortex and PJM’s call 

for generation capacity resources to meet the anticipated spike 

in demand caused Old Dominion to incur losses in the form of:

(i) actual costs in excess of the $1,000/megawatt-hour rate that 

pre-dated the January 24, 2014 waiver; (ii) start-up costs 

arising from PJM’s cancelled requests for service; and (iii) 

costs that arose when units dispatched to generate for a certain 

period were instructed to cease operations earlier than 

anticipated.

D

Old Dominion requested that the Commission provide 

dual-faceted relief for its losses. First, Old Dominion sought 

to have the effective date of PJM’s “make whole” waiver

extend back one additional day to cover losses it suffered on 

January 23, the date PJM filed its waiver request with the 

Commission. PJM Interconnection, LLC, 146 FERC ¶ 61,041

(2014). Second, Old Dominion requested a waiver of

provisions in the Tariff and PJM Agreement proscribing 

retroactive rate charges so that it could recover the start-up 

costs of its unused energy production that it incurred when PJM 

cancelled or cut back on prior orders for service. Combined, 

Old Dominion claimed nearly $15 million in costs attributable

to PJM’s emergency measures during the Polar Vortex. 

The Commission denied Old Dominion’s request in all 

respects. The Commission agreed with Old Dominion’s 
10

concession that the filed Tariff precluded its requested 

retroactive changes to the rates. The Commission also found 

that Old Dominion’s ratepayers lacked sufficient notice that the 

approved rate was subject to change. For those reasons, the 

Commission concluded that Old Dominion’s waiver was 

impermissible under the filed rate doctrine and the closely

related rule against retroactive ratemaking.

Old Dominion sought rehearing based entirely on grounds 

of fairness and equity. Specifically, it argued that the 

Commission has discretionary authority to “retroactively 

waive a tariff in order to authorize ‘actions other than those 

prescribed by the filed rate[]’” when “it concludes that the 

‘tariff should not be applied under a particular out-of-theordinary set of facts[.]’” Old Dominion Elec. Coop., 154 FERC 

¶ 61,155 at P 11 (2016).

The Commission disagreed, explaining that Old 

Dominion’s requested waiver constituted “a classic example of 

a violation of the filed rate doctrine and the prohibition of 

retroactive ratemaking.” Old Dominion Elec. Coop., 154 

FERC ¶ 61,155 at P 9. The Commission also found that this 

court’s precedent stripped it of any power to disregard on 

equitable grounds either the filed rate doctrine or the rule 

against retroactive ratemaking, no matter how compelling the

equities might be. Id. at P 17 (citing Columbia III, 895 F.2d at 

797).

II

We review final orders of the Commission, 16 U.S.C. 

§ 825l(b), under the Administrative Procedure Act’s familiar 

“arbitrary and capricious” standard, 5 U.S.C. § 706(2)(A); see

FERC v. Electric Power Supply Ass’n, 136 S. Ct. 760, 782 

(2016). Under that standard, we defer to the Commission’s 
11

reasonably explained decisions, Alcoa Inc. v. FERC, 564 F.3d 

1342, 1347 (D.C. Cir. 2009), and to its interpretations of its 

own precedent, NSTAR Elec. & Gas Corp. v. FERC, 481 F.3d 

794, 799 (D.C. Cir. 2007). Those same principles apply with 

equal force to our review of the Commission’s application of 

the filed rate doctrine, which is “Chevron-like in nature.” Old 

Dominion Elec. Coop. v. FERC, 518 F.3d 43, 48 (D.C. Cir. 

2008) (internal quotation marks omitted). Put simply, we 

afford the Commission’s interpretation of the filed Tariff and 

the PJM Operating Agreement “substantial deference” unless 

“the tariff language is unambiguous.” Id. (internal quotation 

marks omitted). 

A

The governing law is not in question here. The filed rate 

doctrine and the rule against retroactive ratemaking leave the 

Commission no discretion to waive the operation of a filed rate 

or to retroactively change or adjust a rate for good cause or for 

any other equitable considerations. Columbia III, 895 F.2d at 

794–797. These corollary rules operate as a nearly 

impenetrable shield for consumers, ensuring rate predictability 

and preventing discriminatory or extortionate pricing. West 

Deptford, 766 F.3d at 12; see Arkansas La., 453 U.S. at 578 

(explaining that not even “the Commission itself” possesses the 

authority to contravene the prospective application of rates).

Given those emphatic rules against retroactively changing 

filed rates and the absence of any equitable waiver authority in 

the Commission, the only question in this case is whether 

granting Old Dominion the waiver it sought would have 

violated one of those prohibitions. We agree with the 

Commission that either waiver would have run afoul of both.
12

To begin with, there is no dispute that the PJM Tariff’s 

filed rate did not allow the cost recovery that Old Dominion

seeks. In fact, Old Dominion repeatedly conceded before the 

Commission and this court that the filed Tariff categorically 

precluded its compensation for losses caused by the rate cap. 

That would seem to be the end of the matter. But Old 

Dominion argues that recouping its losses would be consistent 

with the filed rate doctrine because ratepayers were on notice 

that the Tariff set a market rate for electricity, and the Polar 

Vortex altered that market rate. 

Close, but no cigar. Old Dominion is correct that no 

violation of the filed rate doctrine occurs when “buyers are on 

adequate [advance] notice that resolution of some specific issue 

may cause a later adjustment to the rate being collected at the 

time of service.” Natural Gas Clearinghouse v. FERC, 965 

F.2d 1066, 1075 (D.C. Cir. 1992). When the very terms of the 

filed rate warn customers, at the time they contract for service,

that the price charged will fluctuate based on an identified 

formula with specified cost drivers, then the rate is allowed to 

change when fluctuations in those cost drivers occur. That, 

after all, is how formulae work. And that comports with the 

filed rate doctrine because the rate changes are foreordained, 

not retroactive. See, e.g., Public Utilities Comm’n, 254 F.3d at

254 (explaining the well-established acceptability of formula 

rates that specify the cost components that form the basis of the 

rates a utility charges its customers); Transwestern Pipeline 

Co. v. FERC, 897 F.2d 570, 578 (D.C. Cir. 1990) (“The 

Commission need not confine rates to specific, absolute 

numbers but may approve a tariff containing a rate ‘formula’ 

or a rate ‘rule’ * * *; it may not, however, simply announce 

some formula and later reveal that the formula was to govern 

from the date of announcement[.]”). 
13

Old Dominion’s notice theory does not work in this case. 

Old Dominion has failed to identify any Tariff provisions that 

openly specify the type of market-variable cost components 

required for formula rates. Cf. Public Utilities Comm’n, 254 

F.3d at 255 (citing, as an example, rate increases caused by new 

wage agreements where the utility agreed to a formula rate with 

a labor cost component); West Deptford, 766 F.3d at 22 

(ratepayers have notice that rates determined by filed formulas 

will be determined according to the formula); NSTAR, 481 F.3d 

at 801 (rates may constantly change as long the changes are 

consistent with the formula on file with the Commission). 

Plus, if there were such variables, then they presumably 

would run in both directions. Yet tellingly, Old Dominion is 

unable to cite a single instance in which bull market conditions 

for utilities produced a refund to consumers of over-billed 

amounts.

The coup de grace for Old Dominion’s theory is that the 

filed rate on its face assured customers that, however the 

market might change, charges would be capped at $1,000 per 

megawatt-hour. Tariff, Attachment K, Appendix

§ 1.10.1A(d)(viii). Customers, in other words, were on explicit 

notice that, although market forces might cause some variation 

within a range, the rates charged would never exceed the 

agreed-upon rate cap. Old Dominion points to nothing in the 

Tariff’s terms that lifts that cap for the charges for which it 

seeks recoupment. To toss that cap aside after the fact just 

because it did exactly what a cap is supposed to do—serve as a 

firm ceiling on market prices—would retroactively rewrite the 

terms of the filed rate. The filed rate doctrine and rule against 

retroactive rulemaking flatly forbid such a result. 

Old Dominion argues alternatively that PJM’s January 21 

statement on its website, noting that it was seeking FERC’s 
14

approval for certain generators to exceed the rate-cap, gave 

customers the required prospective notice that emergency 

retroactive rate increases could ensue. That argument fails at 

every step. 

First, the website statement was not filed with the 

Commission. That is required for all rate changes. 16 U.S.C. 

§ 824d(d); see West Deptford, 766 F.3d at 23–24; see also City 

of Piqua v. FERC, 610 F.2d 950, 954 (D.C. Cir. 1979). As a 

result, the statement did not provide the legally required notice 

to even first-line purchasers in the wholesale markets, such as 

load-serving entities, let alone to the downstream retail 

customers. See Columbia III, 895 F.2d at 797 (citing Columbia 

Gas Trans. Corp. v. FERC, 831 F.2d 1135, 1140–1141 (D.C. 

Cir. 1987), abrogated on other grounds by Transwestern, 897 

F.2d at 579); cf. City of Piqua, 610 F.2d at 954–955 (approving 

a seemingly retroactive rate because a pre-existing contractual 

agreement provided ratepayers prospective notice of the 

impending rate change from the date of the contract). 

Second, the website post was limited to retroactive “make 

whole” payments(which the actual waiver did not request), and 

to prospective relief allowing generators to submit cost-based 

offers into the day-ahead market above $1,000/megawatt-hour. 

On top of that, the website post reiterated that, unless and until 

the Commission granted the prospective waiver of the Tariff’s 

rate cap provision, the market rules remained in effect—

including the $1,000 rate cap. To be sure, the Commission 

ultimately waived the sixty-day statutory notice period and 

granted PJM’s requested prospective relief effective January 

24, 2014. That just confirms that the Commission stuck to its 

prospective-only authority to adjust rates and that it left the past 

rates as it found them.
15

For all of those reasons, we uphold the Commission’s 

decision denying retroactive rate adjustments and deny Old 

Dominion’s petition for review.

B

Turning to Monitor’s pending motion to intervene, we 

hold that Monitor has no legally cognizable interest in this case, 

and thus lacks standing. Accordingly, its motion to intervene 

is denied.

Intervenors become full-blown parties to litigation, and so 

all would-be intervenors must demonstrate Article III 

standing.2

 See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 

732-733 (D.C. Cir. 2003). To do so, the prospective intervenor 

must establish injury-in-fact to a legally protected interest, 

causation, and redressability. See Crossroads Grassroots 

Policy Strategies v. FEC, 788 F.3d 312, 316 (D.C. Cir. 2015). 

This court also looks to the timeliness of the motion to 

intervene and to whether the existing parties can be expected 

to vindicate the would-be intervenor’s interests. See Deutsche 

Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 192 (D.C. Cir. 

2013). The Monitor, however, has failed to establish that the 

 

2 The Supreme Court recently held that an intervenor of right 

who seeks distinctive relief must demonstrate its own Article III 

standing. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 

1651 (2017). But that decision had no occasion to consider whether 

all intervenors must do so. Town of Chester thus does not cast doubt 

upon, let alone eviscerate, our settled precedent that all intervenors 

must demonstrate Article III standing. Cf. Dellums v. United States

Nuclear Regulatory Comm’n, 863 F.2d 968, 987 n.11 (D.C. Cir. 

1988) (intervening Supreme Court precedent must clearly dictate a 

departure from circuit law before a subsequent panel is free to 

discard an earlier panel’s holding).
16

litigation implicates any legally protected interest sufficient to 

confer Article III standing. 

The role of the Monitor is, as explained in the PJM 

Agreement, to “objectively monitor, investigate, evaluate and 

report on the PJM Markets, including, but not limited to, 

structural, design or operational flaws” that the markets might 

display. Monitor Br. A10–A11.3 PJM retained the Monitor as 

an outside consultant to undertake those market-monitoring 

tasks. The Monitor is charged with “mak[ing] such 

recommendations” to PJM “as [it] shall deem appropriate” to 

“address design flaws, structural problems, compliance” and 

other market anomalies that the Monitor detects. Monitor Br. 

A4. 

The Monitor’s role, however, is much in the nature of an 

auditor—it is largely confined to observing the market’s 

operations and then offering recommendations to PJM. The 

Monitor has no authority to enforce or to interpret the PJM 

Agreement or Tariff, to direct changes in the market’s 

operations, to alter market rules, or to police individual 

members’ compliance. Other than making some regulatory 

filings, all the Monitor can do is inform the Commission, 

authorized government agencies, or PJM’s participating 

members if it disagrees with PJM’s implementation of the 

market rules or operation of the PJM market. Beyond its 

contractually assigned tasks, the Monitor has no independent 

legal interest of its own in the PJM markets. 

That is not enough for Article III. The Monitor’s 

professional assignment to monitor the markets so that PJM 

and its members can promote the market’s efficient and 

 

3 We note that none of the relevant Agreement provisions, 

namely Attachment M, are in the record for this court’s inspection.
17

successful operation does not invest the Monitor with any 

legally cognizable rights concerning either how PJM addresses 

Old Dominion’s application for retroactive relief or how Old 

Dominion complies with the Tariff or Agreement. The 

Monitor is not a contractual party to either the Tariff or the 

Agreement, and it has no legal interests that are affected one 

way or the other by any parties’ non-compliance. It is, instead, 

an outside observer hired to study and report objectively on the 

market’s operations.

The Monitor nonetheless asserts that its “responsibility to 

monitor the markets” under the Agreement would be impaired 

if Old Dominion prevails in this action. Monitor Br. A4. The 

Monitor adds that it was a “core participant,” not just a “mere 

observer,” in the Commission proceeding that led to the order 

on review. Id. The Monitor further worries that, if the 

Commission’s order were reversed, then the competitive 

market design that the Monitor is “charged to protect” will need 

“repair,” requiring the Monitor to “redeploy its limited 

resources in an effort * * * to craft new rules that are harder to 

undermine.” Monitor Br. A6. 

We fail to see how this proceeding imperils any legally 

protected interest of the Monitor. Whether Old Dominion wins 

or loses, the Monitor’s ability to observe the market’s 

operations and to make recommendations or to inform 

potentially interested parties of its observations remains the 

same. 

Nor did the Commission’s order determine any legal rights 

belonging to the Monitor or benefit the Monitor in any 

discernable way. The Monitor thus has no “significant and 

direct interest” in defending the Commission’s denial of Old 

Dominion’s requested relief. Crossroads, 788 F.3d at 318. 

The Monitor faces no “threatened loss” from this court’s 
18

review, nor did it acquire any tangential benefit from the 

Commission’s order. Cf. Fund for Animals, 322 F.3d at 733 

(allowing Mongolian entity to intervene where Secretary of 

Fish and Wildlife’s decision to not list argali sheep as 

endangered indirectly benefitted Mongolian tourism and 

conservation industries); Military Toxics Project v. EPA, 146 

F.3d 948, 954 (D.C. Cir. 1998) (allowing manufacturers’

association to intervene on the side of the EPA because some 

of its members indirectly benefitted from an EPA rule 

regarding munitions). 

The Monitor, for its part, identifies no law that vests it with 

independent legal rights. The Monitor is not a creature of 

statute and operates under no affirmative duty imposed by 

public law. Quite the contrary, even its existence is a matter 

entirely within PJM’s discretion. And its function is limited to 

monitoring, advising, encouraging compliance, and informing

others through regulatory filings and other informal 

communications, none of which are at stake in this case. Cf.

Sea-Land Serv., Inc. v. Department of Transp., 137 F.3d 640, 

648 (D.C. Cir. 1998) (“[M]ere precedential effect within an 

agency is not, alone, enough to create Article III standing, no 

matter how foreseeable the future litigation.”). 

Because it lacks any legally cognizable interest or right in 

this proceeding, the Monitor lacks standing, and intervention is 

denied. We will, however, grant the Monitor amicus curiae

status.

* * * * *

For the foregoing reasons, we deny the petition for review

and the motion to intervene, but we will allow the Monitor to 

participate as an amicus curiae. 
19

So ordered.