United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2022 Decided July 15, 2022

No. 21-1163

CHEROKEE COUNTY COGENERATION PARTNERS, LLC,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

DUKE ENERGY CAROLINAS, LLC,

INTERVENOR

Consolidated with 21-1176

On Petitions for Review of Orders

of the Federal Energy Regulatory Commission

Paul W. Hughes argued the cause for petitioner. With him 

on the briefs were Neil L. Levy, David G. Tewksbury, and 

Andrew Lyons-Berg.

Lona T. Perry, Deputy Solicitor, Federal Energy 

Regulatory Commission, argued the cause for respondent. On 

the brief were Matthew R. Christiansen, General Counsel, 
2

Robert H. Solomon, Solicitor, and Elizabeth E. Rylander, 

Attorney.

Misha Tseytlin argued the cause for intervenor Duke 

Energy Carolinas, LLC in support of respondent. With him on 

the brief was Kevin M. LeRoy. Christopher R. Jones and Amie 

V. Colby entered appearances.

Before: WILKINS and RAO, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SILBERMAN.

SILBERMAN, Senior Circuit Judge: Petitioner, Cherokee 

County Cogeneration Partners, LLC, seeks review of the 

Federal Energy Regulatory Commission’s determination that 

FERC lacked jurisdiction over Petitioner’s Federal Power Act 

section 205 rate filing which sought compensation for its 

provision of reactive service.

Before we reach the question of FERC’s jurisdiction—let 

alone the merits—we are obliged to consider our own 

jurisdiction. While we clearly have jurisdiction over the 

petitions, we lack authority to consider Petitioner’s arguments 

because they were not adequately presented in its petition for 

rehearing. Because there are no arguments that are properly 

before us, we deny the petitions for review. 

I.

The Federal Power Act gives FERC jurisdiction over the 

rates for the transmission of electric energy and sale of electric 

energy at wholesale in interstate commerce. 16 U.S.C. 

§ 824(a)-(b). FERC reviews those rates to ensure they are “just 
3

and reasonable” and that they do not “grant any undue 

preference or advantage” or “subject any person to any undue 

prejudice or disadvantage.” 16 U.S.C. § 824d(a), (b), (e).

But there are exceptions to FERC’s jurisdiction. In 1978, 

Congress enacted the Public Utility Regulatory Policies Act 

(PURPA) “to encourage the development of cogeneration and 

small power production facilities” to reduce demand for 

traditional fossil fuels. FERC v. Mississippi, 456 U.S. 742, 750 

(1982). To support that goal, PURPA directed FERC to 

exempt such qualifying facilities from the Federal Power Act 

by developing implementing regulations. 16 U.S.C. § 824a3(e)(1). It also required state regulatory authorities to adopt

rules implementing PURPA and FERC’s regulations. 16 

U.S.C. § 824a-3(f)(1). 

Accordingly, FERC promulgated a regulation that 

exempts cogeneration and small power production facilities 

that are “qualifying facilities” from sections 205 and 206 of the 

Federal Power Act when certain conditions are met. (Sections 

205 and 206 provide that all rates for the transmission or sale 

of electric energy shall be just and reasonable. 16 U.S.C. §§ 

824d-e.) Under that regulation, “sales of energy or capacity

. . . made pursuant to a state regulatory authority’s 

implementation of section 210 [of PURPA] shall be exempt 

from scrutiny under sections 205 and 206.” 18 C.F.R. 

§ 292.601(c)(1) (“the cogeneration regulation”). In other 

words, FERC does not have jurisdiction over those sales. The 

interpretation of this regulation is at the center of the dispute 

before us.
4

* * *

Petitioner, Cherokee, owns a qualifying cogeneration 

facility in South Carolina.

1

 Intervenor, Duke Energy 

Carolinas, LLC, is a public utility that sells wholesale and retail 

electric service to customers in North Carolina and South 

Carolina. Petitioner sells the entirety of its generated capacity 

and energy to Duke “under a Power Sales Agreement (PPA) 

pursuant to PURPA.” Cherokee Cty. Cogeneration Partners, 

LLC, Order Dismissing Rate Filing, 175 FERC ¶ 61,002 at P 3 

(Apr. 2, 2021) (“Dismissal Order”). Petitioner and Duke are 

also parties to a Large Generator Interconnection Agreement 

(“Interconnection Agreement”) which provides the terms of the 

interconnection between Duke’s transmission system and 

Petitioner’s facility.

The two components of electrical power in an alternating 

current system are “real” power and “reactive” power. Real 

power “causes electrical equipment to perform work.” 

Reactive power creates a stable voltage so that real power can 

be transmitted through the power system. See Ala. Power Co. 

v. FERC, 220 F.3d 595, 596–97 (D.C. Cir. 2000). Under the 

Interconnection Agreement, Petitioner is required to provide 

reactive service for Duke’s transmission system and Duke is 

required “to pay Cherokee for reactive power to the extent 

[Duke] pays its own or affiliated generators for Reactive 

Service.” Dismissal Order at P 4. The parties agree that the 

provision of reactive service is not controlled by the Power 

Sales Agreement. Dismissal Order at PP 10, 12.

This case arises because Petitioner seeks compensation for 

the reactive service it provides to Duke’s transmission system. 

Petitioner filed a proposed rate schedule for its reactive service 

1 There is no dispute that Cherokee’s facility is a qualifying 

facility under PURPA.
5

with FERC pursuant to section 205 of the Federal Power Act. 

16 U.S.C. § 824d. Petitioner argued that, under the 

comparability requirement, since Duke pays its own generators 

for reactive power, it must pay Petitioner for the same service. 

“The comparability requirement is the requirement, established 

in Order No. 2003, that the transmission provider must pay the 

interconnection customer for reactive power . . . if the 

transmission provider pays its own or affiliated generators for 

such service.” Dismissal Order at P 12 n.27 (citing Order No. 

2003-A, 106 FERC ¶ 61,220 at P 416 (March 5, 2004)).

Duke intervened and claimed that FERC lacked 

jurisdiction over Petitioner’s section 205 filing. Duke 

contended that Petitioner’s facility is a qualifying facility 

selling energy or capacity to Duke pursuant to South Carolina’s 

implementation of PURPA. Thus, Duke argued, under the 

cogeneration regulation, Petitioner’s proposed rate filing was 

exempt from scrutiny under section 205.

The Commission dismissed Petitioner’s rate filing for lack 

of jurisdiction. FERC stated that Petitioner’s “only asserted 

basis for entitlement to compensation for Reactive Service is 

the [Interconnection Agreement].” Dismissal Order at P 16. 

Relying on Order No. 2003, FERC noted that where a “utility 

is obligated to interconnect under Section 292.303 of the 

Commission’s Regulations, that is, when it purchases the 

[qualifying facility’s] total output, the relevant state authority 

exercises authority over the interconnection and the allocation 

of interconnection costs.” Order No. 2003, 104 FERC ¶ 61,103 

at P 813 (July 24, 2003). As noted, in this case, Duke 

purchased all of Petitioner’s output. Therefore, FERC 

concluded it did not have jurisdiction over the Interconnection 

Agreement. Dismissal Order at PP 16–18. And because FERC 

determined that the Interconnection Agreement was the “only” 
6

asserted basis for compensation, it dismissed Petitioner’s rate 

filing. Dismissal Order at P 16.

Petitioner sought rehearing, arguing that the 

Interconnection Agreement was not the only basis for 

entitlement to compensation. Rather, Petitioner contended that 

“[t]he principal basis for Cherokee’s entitlement to 

compensation is the Commission’s well-established 

comparability standard,” and thus that the jurisdictional status 

of the Interconnection Agreement “has no bearing whatsoever 

on the Commission’s jurisdiction over Reactive Service that 

Cherokee provides to [Duke].” JA 349, 352.

Petitioner filed a timely petition for review. The next day, 

FERC issued a substantive order explaining its denial. FERC

reiterated its conclusion that the Interconnection Agreement is 

not subject to its jurisdiction. It also concluded that it lacked 

jurisdiction over Petitioner’s freestanding claim for 

compensation under the comparability requirement because 

Petitioner’s rate filing was exempt from FERC scrutiny under 

the cogeneration regulation. In particular, the rehearing order 

determined that reactive service was “energy or capacity” 

within the meaning of that regulation. Cherokee Cty.

Cogeneration Partners, LLC, Order Addressing Arguments 

Raised on Rehearing, 176 FERC ¶ 61,069 at PP 14–16 (Aug. 

3, 2021) (“Rehearing Order”). Accordingly, FERC determined 

that Petitioner’s comparability standard argument was “moot.” 

Rehearing Order at P 18. Petitioner filed a supplemental 

petition for review. 

II.

Petitioner contends that FERC’s dismissal of its section 

205 rate filing is arbitrary and capricious (unreasonable). The 

exemption from FERC jurisdiction provided by the 
7

cogeneration regulation, Petitioner claims, is inapplicable here. 

That’s for two reasons. (1) Petitioner’s provision of reactive 

service is not made pursuant to a state regulatory authority’s 

implementation of PURPA. And, to compound the 

Commission’s error, FERC failed to even respond to this 

argument in its rehearing order. (2) Alternatively, reactive 

service is not “energy or capacity.” Thus, Petitioner contends 

that FERC erred in concluding that it lacked jurisdiction.

* * *

FERC brings two arguments that challenge our own 

jurisdiction. Neither have any merit.

First, FERC contends that we lack jurisdiction to review 

FERC’s “declaratory” ruling under PURPA. It relies on a line 

of cases which holds that we don’t review FERC orders that 

simply state how FERC interprets its own regulations because 

“to review [such] orders issued under § 210 of the 

PURPA . . . would disrupt the enforcement scheme carefully 

elaborated in § 210.” Indus. Cogenerators v. FERC, 47 F.3d 

1231, 1234 (D.C. Cir. 1995); see also, e.g., Midland Power Coop. v. FERC, 774 F.3d 1, 5–6 (D.C. Cir. 2014). We review 

such declaratory orders only after a qualifying facility or FERC 

brings an enforcement action in district court and appeals. Xcel 

Energy Servs. Inc. v. FERC, 407 F.3d 1242, 1244 (D.C. Cir. 

2005); see also Niagara Mohawk Power Corp. v. FERC, 117 

F.3d 1485, 1488 (D.C. Cir. 1997). Since that hasn’t happened 

here, FERC argues, we lack jurisdiction.

But these cases do not apply. Each of them involved a 

§ 210(h) PURPA enforcement proceeding. The proceeding 

before us is not a § 210(h) enforcement action. As such, it does 

not implicate PURPA’s enforcement scheme. Rather, it is a 

rate filing proceeding seeking compensation under section 205 
8

of the Federal Power Act. We have clear authority to review 

Federal Power Act proceedings under 16 U.S.C. § 825l(b). 

Thus, we may review FERC’s orders here.

Second, FERC argues that the case is moot because the 

Power Sales Agreement between Cherokee and Duke expired. 

Since Cherokee now sells to another entity and not Duke, 

FERC claims that it is not apparent how our ruling could affect 

the parties’ prospective rights. This contention is frankly 

ridiculous. We can award retrospective, as well as prospective, 

relief. Cherokee seeks retroactive monetary relief for the 

reactive service it provided to Duke without compensation. 

Such a claim obviously “dispel[s] any idea of mootness.” ANR 

Pipeline Co. v. FERC, 885 F.2d 937, 938 (D.C. Cir. 1989) 

(citing Northwest Pipeline Corp. v. FERC, 863 F.2d 73, 77 

(D.C. Cir. 1988)). We have jurisdiction to review the petitions.

A.

As noted, Petitioner first argues that its provision of 

reactive service is not made pursuant to a state regulatory 

authority’s implementation of PURPA. Petitioner contends 

that this prong of the cogeneration regulation covers only sales 

made pursuant to contracts or obligations approved by state 

regulatory authorities. Unlike the Power Purchase Agreement, 

the Interconnection Agreement governing reactive service has 

not been approved by South Carolina regulatory authorities.

Thus, Petitioner claims, this exemption from FERC’s section 

205 jurisdiction does not apply.

To be sure, this is a potentially plausible argument. 

Unfortunately, it appears nowhere in Petitioner’s request for 

rehearing before FERC. Under 16 U.S.C. § 825l(b), “[n]o 

objection to the order of the Commission shall be considered 

by the court unless such objection shall have been urged before 
9

the Commission in the application for rehearing . . . .” 

Petitioners “must themselves raise in that petition all of the 

objections urged on appeal.” Platte River Whooping Crane

Critical Habitat Maintenance Trust v. FERC, 876 F.2d 109, 

113 (D.C. Cir. 1989).

The closest Petitioner comes to raising this issue in its 

petition for rehearing is in a single sentence: “[A]s explained 

in Cherokee’s earlier pleadings, its sales of Reactive Service 

are not ‘made pursuant to a state regulatory authority’s 

implementation of section 210 [of PURPA].’” JA 352. But we 

have held that “Petitioner[] must raise each argument with 

‘specificity,’; objections may not be preserved either 

‘indirectly,’ or ‘implicitly.’” Ameren Servs. Co. v. FERC, 893 

F.3d 786, 793 (D.C. Cir. 2018) (citations omitted). Petitioner’s

sentence does no more than restate the regulation in a 

conclusory manner. Petitioner does not follow this sentence 

with any of the argumentation or analysis it presents in its wellwritten brief. And Petitioner’s “earlier pleadings” do not 

contain any discussion about the pursuant to state 

implementation of PURPA prong of the cogeneration 

regulation. Under our “unusually strict requirement,” 

Petitioner has not done enough to present this argument in its 

petition for rehearing. Wabash Valley Power Ass’n, Inc. v. 

FERC, 268 F.3d 1105, 1114 (D.C. Cir. 2001).2 Accordingly,

we lack authority to consider it.

We recognize that the Commission did not raise this 

jurisdictional argument. But “[n]either FERC nor this court has 

authority to waive these statutory requirements.” Platte River 

2 Petitioner also argues that FERC erred in not responding to 

this argument in its rehearing order. Had Petitioner properly 

presented it, that would be true. But since it did not, FERC was under 

no obligation to discuss it.
10

Whooping Crane, 876 F.2d at 113. “Therefore, the failure of 

FERC to challenge a petitioner’s objection on the ground that 

it was not raised below does not remove this court’s 

independent obligation to determine whether, in fact, the 

argument is properly before us.” Wabash Valley Power Ass’n,

268 F.3d at 1114.

B.

Petitioner also contends that the cogeneration regulation’s

exemption does not apply because reactive service is not 

“energy or capacity.” Rather, it claims, “the text, structure, and 

history of the regulations at issue make clear that reactive 

service is a wholly separate third category of service not 

encompassed by this regulatory language.”

Again, this argument does not appear in Petitioner’s 

request for rehearing.

3 Instead, Petitioner claimed that FERC’s 

dismissal of its section 205 rate filing violated the 

comparability standard. That standard, Petitioner asserts, is its 

“principal basis” for entitlement to compensation and applies 

regardless of whether it is included in the Interconnection 

Agreement. JA 349. Tellingly, Petitioner does not directly 

dispute FERC’s assertion that its “energy or capacity” 

argument does not appear in the petition for rehearing. So, it 

would seem this argument is presumably barred by section

825l(b).

Petitioner claims it has an excuse for its failure to raise its 

“energy or capacity” argument. Section 825l(b)’s bar applies 

when a Petitioner does not urge an objection in its petition for 

3 Noticeably, when FERC discusses the “energy or capacity” 

argument in its rehearing order, it cites only to Petitioner’s Answer

to Duke’s motion to dismiss. JA 17.
11

rehearing “unless there is reasonable ground for failure to do 

so.” 16 U.S.C. § 825l(b). Petitioner contends that this 

exception to the bar applies where FERC’s order on rehearing 

adopts new reasoning not found in the Commission’s original 

order. To be sure, we have held that where a FERC rehearing 

order “marshal[s] new arguments to support the old outcome,” 

and the “party filing [the] petition for rehearing was [thus] not 

on notice of the rationale that FERC would adopt in the 

rehearing order, the party has a ‘reasonable ground’ for not 

having addressed that rationale in its petition and accordingly 

may do so for the first time in court.” Columbia Gas 

Transmission Corp. v. FERC, 477 F.3d 739, 742 (D.C. Cir. 

2007). Here, FERC’s original order did not discuss the “energy 

or capacity” prong of the cogeneration regulation. But FERC 

did analyze it in its rehearing order. Rehearing Order at P 14–

16. Therefore, Petitioner contends that, under Columbia Gas,

it may address FERC’s rationale for the first time before us.

We think Columbia Gas does not apply. There, Petitioners 

entered into agreements with local distribution companies. 

FERC rejected the agreements on two grounds. Petitioners 

sought rehearing, attacking both reasons. FERC denied the 

petition, “but marshaled slightly different reasons”—adding a 

new rationale for why Petitioners should lose. Id. at 741.

On review, the Commission argued that we lacked 

authority to consider Petitioners’ challenge to this new 

rationale because they did not make the argument in their 

petition for rehearing. Id. We noted that, “[o]f course the 

reason Columbia hadn’t attacked those arguments in its petition 

for rehearing is plain: FERC hadn’t yet revealed them.” Id. 

We set forth the proposition that, “when a party filing a petition 

for rehearing was not on notice of the rationale that FERC 

would adopt in the rehearing order, the party has a ‘reasonable 

ground’ for not having addressed that rationale in its petition 
12

and accordingly may do so for the first time in court.” Id. at 

742. Since we determined that Petitioners had no notice of 

FERC’s new rationale, we held that they were not barred by 

section 825l(b) from urging objections to it before us.

But the notice considerations that underlie Columbia Gas

are not present here. There, Petitioners were truly blindsided 

by a new rationale. Here, FERC did not devise a new rationale 

out of the blue. Actually, Petitioner itself made the “energy or 

capacity” argument in its original Answer to Duke’s motion to 

dismiss, but then inexplicably dropped it in its petition for 

rehearing. So, it cannot be said that FERC’s discussion of the 

“energy or capacity” prong was a surprise to Petitioner. 

Petitioner did not meet its obligation to show that its filing 

avoided the cogeneration regulation’s exemption from FERC 

jurisdiction. Thus, we think Columbia Gas is inapposite.

As just explained, we don’t have authority to consider the 

two arguments Petitioner makes before us. Neither do we have 

authority to consider the argument Petitioner did make in its 

petition for rehearing—that the Commission focused 

exclusively on the jurisdictional status of the Interconnection 

Agreement under 18 C.F.R. § 292.303 and erred in applying 

the comparability standard. That is because Petitioner 

abandoned this contention by not raising it before us. It is 

therefore forfeited. See Sierra Club v. FERC, 867 F.3d 1357, 

1378–79 (D.C. Cir. 2017).

* * *

Petitioner presents no arguments we can consider. We 

therefore deny the petitions for review.