United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 9, 2014 Decided August 22, 2014

No. 13-1033

SOUTHWESTERN POWER ADMINISTRATION, ET AL.,

PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

MID-WEST ELECTRIC CONSUMERS ASSOCIATION, INC., ET AL.,

INTERVENORS

On Petition for Review of an Order of the 

Federal Energy Regulatory Commission

Henry C. Whitaker, Attorney, U.S. Department of Justice, 

argued the cause for petitioners. With him on the briefs were 

Stuart F. Delery, Acting Assistant Attorney General, Ronald 

C. Machen Jr., U.S. Attorney, and Michael S. Raab, Attorney.

Sherry Quirk, David Fitzgerald, Jeffrey C. Genzer, and 

Kristen Connolly McCullough were on the brief for 

intervenors Mid-West Electric Consumers Association, et al. 

in support of petitioners. Monica M. Berry entered an 

appearance. 
2

Lona T. Perry, Senior Attorney, Federal Energy 

Regulatory Commission, argued the cause for respondent. 

With her on the brief were David L. Morenoff, Acting General 

Counsel, and Robert H. Solomon, Solicitor.

Rebecca J. Michael and Sonia C. Mendonça were on the 

brief for intervenor North American Electric Reliability 

Corporation in support of respondent. Meredith M. Jolivert

entered an appearance. 

Before: GARLAND, Chief Judge, and SRINIVASAN and 

PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: Section 215(b)(1) of the 

Federal Power Act grants the Federal Energy Regulatory 

Commission jurisdiction over “all users, owners and operators 

of the bulk-power system . . . for purposes of approving 

reliability standards . . . and enforcing compliance.” The 

terms of that provision specify that the group of “users, 

owners and operators” generally subjected to the 

Commission’s jurisdiction “include[s]” the United States. A 

different provision, section 215(e) of the Federal Power Act, 

authorizes the Commission and its designee the North 

American Electric Reliability Corporation to impose 

monetary penalties on “a user or owner or operator of the 

bulk-power system” for violations of reliability standards. 

That provision contains no separate specification that “a user 

or owner or operator” subject to the imposition of monetary

penalties includes the United States.

The Corporation, asserting its power under section 

215(e)(1), assessed a monetary fine against the Southwestern 

Power Administration, a federal government entity that 
3

markets hydroelectric power. Southwestern, along with the 

Department of Energy and the Department of the Interior, 

appealed the penalty to the Commission. They argued that 

the relevant provisions of the Federal Power Act effect no 

unequivocal waiver of the United States’s sovereign 

immunity from monetary penalties, as would be necessary to 

sustain the fine. The Commission upheld the penalty. It 

reasoned that section 215(b)(1) and section 215(e) work in 

tandem to establish an unambiguous waiver of sovereign 

immunity with regard to monetary penalties. 

We disagree. Section 215(b)(1) generally subjects 

federal government entities to the Commission’s jurisdiction

to enforce compliance. But to authorize a monetary award 

against the federal government, the statute must do more than 

generally bring the government within the Commission’s 

enforcement jurisdiction—it must unequivocally subject the 

government to monetary liability. Neither section 215(b) nor 

section 215(e), nor the two considered in combination, speaks 

with the requisite clarity to waive the federal government’s

sovereign immunity from monetary penalties. We therefore 

vacate the Commission’s order. 

I.

Section 215 of the Federal Power Act requires the 

development and enforcement of mandatory reliability 

standards for the bulk-power system. See 16 U.S.C. § 824o. 

The bulk-power system is the interconnected transmission 

network that makes up the nation’s electrical power grid, 

including the power plants and related facilities responsible 

for transferring electrical energy through the system. See id. 

§ 824o(a)(1). Section 215 calls for the Federal Energy 

Regulatory Commission to certify an Electric Reliability 

Organization, which, subject to FERC’s review, would 
4

develop and enforce reliability standards for the bulk-power 

system. Id. § 824o(a)(2), (c). In 2006, FERC certified the 

North American Electric Reliability Corporation, a private 

corporation, as the Electric Reliability Organization. See 

Alcoa Inc. v. FERC, 564 F.3d 1342, 1345 (D.C. Cir. 2009). 

The Corporation, with FERC approval, has promulgated a 

number of reliability standards. See, e.g., FERC, 

Transmission Relay Loadability Reliability Standard, Order 

No. 733, 130 FERC ¶ 61,221 (2010); FERC, Mandatory 

Reliability Standards for the Bulk-Power System, Order No. 

693-A, 120 FERC ¶ 61,053 (2007).

A.

The Federal Power Act provisions addressing 

enforcement of those reliability standards lie at the center of 

this case. First, section 215(b)(1), entitled “Jurisdiction and 

applicability,” generally outlines FERC’s jurisdiction:

The Commission shall have jurisdiction, within the 

United States, over the [Electric Reliability 

Organization] certified by the Commission under 

subsection (c) of this section, any regional entities, 

and all users, owners and operators of the bulkpower system, including but not limited to the 

entities described in section 824(f) of this title, for 

purposes of approving reliability standards 

established under this section and enforcing 

compliance with this section. All users, owners and 

operators of the bulk-power system shall comply 

with reliability standards that take effect under this 

section.

16 U.S.C. § 824o(b)(1). The “entities described in section 

824(f)” over which FERC is given jurisdiction consist of “the 
5

United States, a State or any political subdivision of a State,” 

and certain “electric cooperative[s],” as well as associated 

entities and individuals. 16 U.S.C. § 824(f).

A separate provision of the Federal Power Act, section 

215(e), entitled “Enforcement,” addresses both FERC’s and 

the Electric Reliability Organization’s enforcement authority. 

Under section 215(e)(1), the Electric Reliability Organization 

“may impose . . . a penalty on a user or owner or operator of 

the bulk-power system for a violation of a reliability 

standard,” subject to certain procedural requirements. Id. 

§ 824o(e)(1). The penalties that may be assessed by the 

Electric Reliability Organization include monetary sanctions. 

See id. § 825o-1(b). The Electric Reliability Organization 

files any penalty assessment with FERC, which may review 

the penalty on its own motion or upon a sanctioned party’s 

motion for review. Id. § 824o(e)(2). Section 215(e) also 

speaks to FERC’s own enforcement capabilities. Under 

section 215(e)(3), FERC “may order compliance with a 

reliability standard and may impose a penalty against a user or 

owner or operator of the bulk-power system” upon finding a 

violation (or future violation) of a reliability standard. Id. 

§ 824o(e)(3).

Finally, section 316A of the Federal Power Act, entitled 

“Enforcement of certain provisions,” generally authorizes 

FERC to assess a “civil penalty of not more than $1,000,000”

per day against “[a]ny person who violates any provision of 

subchapter II of this chapter or any provision of any rule or 

order thereunder.” 16 U.S.C. § 825o-1(b). The “provision[s] 

of subchapter II” include section 215’s provisions addressing 

reliability standards for the bulk-power system. Section 

316A’s conferral of power to impose monetary penalties for 

violations of those and other provisions does not authorize 

penalties against the federal government: Section 316A 
6

allows for penalties against “any person” who violates the 

referenced provisions and rules, and the Federal Power Act

defines the term “person” in a manner excluding the United 

States. See 16 U.S.C. § 796(4) (“person means an individual 

or a corporation”) (internal quotation marks omitted).

B.

In this case, the Corporation, relying on its authority 

under section 215(e)(1), assessed a monetary penalty of 

$19,500 against the Southwestern Power Administration for 

violating various reliability standards. Southwestern, a 

federal power marketing agency, is a subdivision of the 

Department of Energy. It markets hydroelectric power 

produced from Army Corps of Engineers projects in the 

southwestern United States.

Southwestern, the Department of Energy, and the 

Department of Interior contested the monetary penalty before 

FERC. They disputed neither Southwestern’s obligation to 

adhere to the reliability standards nor its violation of those 

standards. Instead, they contested Southwestern’s 

amenability to a monetary sanction, arguing that section 215 

contains no unambiguous waiver of the federal government’s 

sovereign immunity from monetary penalties. FERC 

disagreed, determining that section 215 unequivocally waives 

sovereign immunity. FERC, Order on Review of Notice of 

Penalty, Docket No. NP-11-238-000, 140 FERC 61,048 ¶ 42 

(2012), reh’g denied, FERC, Order Denying Rehearing, 141 

FERC 61,242 ¶ 26 (2012) (Rehearing Order). FERC 

reasoned that section 215(b)(1) “serves to define the scope of 

‘all users, owners and operators of the Bulk-Power system’ as 

that term is to be applied to the remainder of . . . section 215.” 

Rehearing Order ¶ 41. Section 215(b)(1) specifically includes 

the United States among the “users, owners and operators”
7

addressed by that provision. In FERC’s view, the inclusion of 

the United States among the “users, owners, and operators” 

over which FERC is given jurisdiction by section 215(b)(1) 

carries through to 215(e)’s reference to the “user[s] or 

owner[s] or operator[s]” against which the Corporation or 

Commission may assess monetary fines. In that fashion, 

FERC concluded, the combination of section 215(b)(1) and 

215(e) unambiguously waives the federal government’s 

sovereign immunity from monetary penalties.

FERC also rejected Southwestern’s contention that 

section 316A confines the reach of section 215’s monetarypenalty authority to non-governmental entities. Southwestern 

argued that section 316A encompasses monetary fines for 

violations of section 215 and rules promulgated thereunder, 

but confines section 215’s penalty authority only to 

“person[s],” a term defined to exclude the United States. 

FERC determined that section 215 is unconstrained by section 

316A and instead “acts as a separate grant of penalty authority 

with respect to violations of mandatory Reliability 

Standards.” Id. ¶ 47.

FERC therefore upheld the Corporation’s imposition of a 

monetary penalty against Southwestern. Southwestern, the 

Department of Energy, and the Department of the Interior 

appeal.

II.

This case revolves around the settled understanding that a 

waiver of sovereign immunity “must be unequivocally 

expressed in statutory text and will not be implied.” Lane v. 

Pena, 518 U.S. 187, 192 (1996) (citations omitted). We have 

applied that principle in the context of a dispute like this one

pitting an independent agency against another federal 
8

government entity. See Dep’t of Army v. Fed. Labor 

Relations Auth., 56 F.3d 273, 275-76 (D.C. Cir. 1995). It 

requires us to construe “[a]ny ambiguities in the statutory 

language . . . in favor of immunity.” FAA v. Cooper, 132 S.

Ct. 1441, 1448 (2012). While Congress need not “use magic 

words,” the waiver must be “clearly discernable from the 

statutory text in light of traditional interpretative tools.” Id. 

If the issue specifically concerns whether “the Government is 

liable for awards of monetary damages, the waiver of 

sovereign immunity must extend unambiguously to such 

monetary claims.” Lane, 518 U.S. at 192; see United States v. 

Nordic Vill., Inc., 503 U.S. 30, 34 (1992). And “[a]mbiguity 

exists if there is a plausible interpretation of the statute that

would not authorize money damages against the 

Government.” Cooper, 132 S. Ct. at 1448; accord Nordic 

Vill., 503 U.S. at 34, 37.

Viewed through the lens of those strict standards, section

215 of the Federal Power Act effects no unequivocal waiver 

of the federal government’s sovereign immunity from 

monetary penalties. The Corporation imposed the fine in this 

case pursuant to its authority under section 215(e)(1), the

provision addressed specifically to the Corporation’s power to 

assess penalties. That provision enables the Corporation to 

assess a penalty against “a user or owner or operator of the 

bulk-power system” found to violate reliability standards. 16 

U.S.C. § 824o(e)(1); see also id. § 824o(e)(3) (authorizing 

Commission to impose penalties against “a user or owner or 

operator”). The terms of that provision, considered on their 

face, make no reference to penalties against the federal 

government. A “user or owner or operator” is not a defined 

term in section 215’s “Definitions” provision, see id.

§ 824o(a), or in the Federal Power Act’s general “Definitions” 

provision, see id. § 796. Because section 215(e) “makes no 

mention whatsoever” of the federal government, Lane, 518 
9

U.S. at 192, that provision, standing alone, plainly establishes

no unambiguous waiver of the federal government’s 

sovereign immunity from monetary penalties.

FERC grounds its assertion of an unequivocal waiver in a 

separate provision, section 215(b)(1). That provision 

generally sets out FERC’s jurisdiction with regard to the 

promulgation and enforcement of electric reliability standards 

for the bulk-power system. It grants FERC jurisdiction “over 

the [Electric Reliability Organization] certified by the 

Commission,” over “any regional entities,” and over “all 

users, owners and operators of the bulk-power system, 

including but not limited to the entities described in section 

824(f) of this title, for purposes of approving reliability 

standards established under this section and enforcing 

compliance with this section.” 16 U.S.C. § 824o(b)(1)

(emphasis added). The provision’s cross-reference “to the 

entities described in section 824(f)” in turn brings within 

FERC’s jurisdictional compass “the United States, a State or 

any political subdivision of a State,” certain “electric 

cooperative[s],” and associated entities and individuals. Id.

§ 824(f). Section 215(b)(1)’s general grant of jurisdiction to 

FERC to approve and enforce compliance with reliability 

standards thus includes the United States within the field of 

covered “users, owners and operators.” In FERC’s view, 

because section 215(b)(1) includes the United States among 

the “users, owners and operators” over which the Commission 

generally possesses jurisdiction to enforce reliability 

standards, and because section 215(e) speaks to the exercise 

of enforcement authority, the term “user or owner or 

operator” in section 215(e) necessarily is defined by section 

215(b)(1) to include the United States.

There is a logic to FERC’s interpretation, but we are 

required to construe any ambiguity against a waiver of 
10

sovereign immunity. The statute is not “so free from 

ambiguity that we can comfortably conclude . . . that 

Congress intended to subject the Federal Government to 

awards of monetary damages.” Lane, 518 U.S. at 200. 

Contrary to FERC’s reading, section 215(b)(1) does not 

unambiguously define “users, owners and operators” as 

including the United States for all of section 215. Another 

provision defines certain terms “[f]or purposes of” section 

215, but that provision contains no definition of “users, 

owners and operators.” 16 U.S.C. § 824o(a). Section 

215(b)(1) instead generally grants FERC jurisdiction over a 

number of entities and individuals—including the United 

States—“for purposes of approving reliability standards . . . 

and enforcing compliance.” Id. § 824o(b)(1). That FERC’s 

overarching jurisdiction to enforce compliance with reliability 

standards encompasses the United States does not necessarily 

mean that the specific enforcement authority in subsection (e) 

to assess monetary penalties must also be read to encompass 

the United States. Rather, “there is a plausible interpretation 

of the statute that would not authorize money damages against 

the Government.” Cooper, 132 S. Ct. at 1448. 

That interpretation runs as follows. Under section 

215(b)(1), the terms of which incorporate the United States

through a statutory cross-reference, Congress generally 

granted FERC jurisdiction over federal government entities to 

enforce compliance with reliability standards. Petitioners thus 

concede, for instance, that federal government entities are 

subject to FERC’s imposition of non-monetary means of 

enforcement, such as compliance orders or directives, 

enforcement audits, and the like. Cf. Lane, 518 U.S. at 196-

97 (noting government concession that statute authorized

award of “injunctive relief” against it but finding no waiver of 

immunity against monetary damages); U.S. Dep’t of Energy v. 

Ohio, 503 U.S. 607, 613, 619 & n.15 (1992) (noting 
11

government concession that statute authorizes “injunctivetype relief” and “coercive sanctions” against it but finding no 

waiver of immunity against punitive fines). But with respect 

to section 215(e)’s grant of authority to assess monetary 

penalties, Congress contemplated the exercise of that power

only against non-government entities, not against the United 

States. Accordingly, section 215(b)(1) pointedly incorporates 

the United States within the group of “users, owners and 

operators” encompassed by its general grant of jurisdiction, 

whereas section 215(e) pointedly does not do so with respect 

to the “user[s] or owner[s] or operator[s]” encompassed by its 

conferral of penalty authority. See Ohio, 503 U.S. at 615 

(“[W]e presume congressional familiarity” with the rule “that 

any waiver of the National Government’s sovereign immunity 

must be unequivocal.”). The upshot is that, while section 

215(b)(1) “waives sovereign immunity, it fails to establish 

unambiguously that the waiver extends to monetary claims”

under section 215(e). Nordic Vill., 503 U.S. at 34; see Fed. 

Labor Relations Auth., 56 F.3d at 276 (“Congress can waive 

immunity to one type of remedy without waiving immunity to

another.”).

That understanding of the distinction between section 

215(b)(1) and section 215(e) draws additional support from 

another provision, section 201(f). Under section 201(f), “[n]o 

provision in this subchapter shall apply to, or be deemed to 

include,” inter alia, “the United States . . . unless such 

provision makes specific reference thereto.” 16 U.S.C. 

§ 824(f). “[T]his subchapter” includes section 215; and the 

sole provision in section 215 that “makes specific reference” 

to the United States is paragraph (b)(1), not subsection (e). 

See Black’s Law Dictionary 1345 (9th ed. 2009) (“provision” 

is a “clause in a statute”). FERC asserts that section 201(f) 

has little effect in this case because of section 201(b)(2), 

which cross-references section 201(f). Section 201(b)(2) 
12

states that, “[n]otwithstanding subsection (f),” i.e., section 

201(f), “the provisions” of certain specified “sections,” 

including section 215, “shall apply to the entities described in 

such provisions, and such entities shall be subject to the 

jurisdiction of the Commission.” 16 U.S.C. § 824(b)(2). In 

stating that “the provisions” of section 215 “shall apply to the 

entities described in such provisions,” that language 

essentially begs the question whether “the entities described 

in” section 215(e) include the United States. At the least, the 

language fails to answer the question with requisite clarity to 

establish an unequivocal waiver of sovereign immunity where 

no waiver otherwise exists. We are then left with a plausible

interpretation of section 215 under which the general grant of 

enforcement jurisdiction in paragraph (b)(1) encompasses the 

United States but the specific grant of penalty authority in 

subsection (e) does not.

The Supreme Court’s decision in Ohio, 503 U.S. 607, 

supports that understanding of the interplay between the two 

provisions. The Court there addressed a claimed waiver of 

the government’s sovereign immunity from punitive monetary 

fines (i.e., fines for past violations). The case involved the 

citizen-suit and penalty provisions of the Clean Water Act and 

Resource Conservation and Recovery Act. The citizen-suit 

provision authorized lawsuits against “any person 

(including . . . the United States)” for certain violations of the 

Acts, and vested district courts with jurisdiction “to apply any 

appropriate civil penalties under [a referenced provision].” 

Id. at 615-16 (internal quotation marks omitted) (omissions in 

original). The referenced provision concerning civil penalties

encompassed punitive fines, but it provided for penalties 

against a “person,” which was in turn defined in a separate 

provision in a manner excluding the United States. Id. at 616-

18 & n.11. Although the citizen-suit provision expressly 

included the United States within the category of “persons” 
13

subject to suit and specifically conferred authority to “apply 

any appropriate civil [money] penalties,” the Court found no 

unequivocal waiver of sovereign immunity with regard to

punitive fines. Id. at 616-18, 628 (analyzing 33 U.S.C. 

§ 1365(a)(1)-(2)). The Court perceived a material “contrast 

between drafting that merely redefines ‘person’ when it 

occurs within a particular clause or sentence and drafting that 

expressly alters the definition for any and all purposes of the 

entire section.” Id. at 618. That is because the statute 

contained “various provisions specially defining ‘person’ and

doing so expressly for purposes of the entire section in which 

the term occurs.” Id. “[T]he inference can only be that a 

special definition not described as being for purposes of the 

‘section’ or ‘subchapter’ in which it occurs was intended to 

have the more limited application to its own clause or 

sentence alone.” Id. at 619. As a result, “the inclusion of the 

United States as a ‘person’” in the citizen-suit provision

“must go to the clauses subjecting the United States to suit, 

but no further.” Id.

In Ohio, the term “person” was expressly defined to 

include the United States for purposes of the clauses in the 

citizen-suit provision subjecting the United States to suit, but 

that understanding did not carry through to the clause 

allowing for imposition of appropriate civil penalties, at least 

with regard to punitive fines. Here, similarly, the term “users, 

owners, and operators” expressly includes the United States 

for purposes of paragraph (b)(1)’s general conferral of 

jurisdiction, but that understanding does not necessarily carry 

through to the “user[s] or owner[s] or operator[s]” subject to 

monetary penalties under subsection (e)’s grant of penalty 

authority. Paragraph (b)(1) “does not purport to apply the 

more expansive definition” of “users, owners and operators” 

throughout the section. Id. at 619 n.14. By contrast, terms 

like “bulk-power system,” “transmission organization,” and 
14

“regional entity” are defined “[f]or purposes of [section 

215].” 16 U.S.C. § 824o(a). And other terms, like “Electric 

Utility” and “Transmitting Utility,” are defined in a manner 

encompassing the United States “for purposes of” chapter 16 

of the U.S. Code. Id. § 796(22)(A) (electric utility); id. 

§ 796(23) (transmitting utility). Congress thus defined certain 

terms for purposes of section 215 or the entire Federal Power 

Act, but did not do so when including the United States within

“users, owners and operators” in section 215(b)(1). Under the 

Court’s approach in Ohio, there is then a plausible 

interpretation of section 215 under which the special 

understanding of “users, owners and operators” inclusive of

the United States in paragraph (b)(1) “was intended to 

have . . . limited application” to that paragraph, “but no 

further.” Ohio, 503 U.S. at 619.

FERC relies on the general assumption that identical 

words within the same statute or section carry a common 

meaning. See Brown v. Gardner, 513 U.S. 115, 118 (1994). 

The question here, however, is not whether section 215, on 

balance, is better read to allow imposing monetary relief 

against the federal government. The question instead is 

whether there is any plausible interpretation to the contrary. 

Here, there is. The “natural presumption that identical words 

used in different parts of the same act are intended to have the 

same meaning . . . readily yields whenever there is such 

variation in the connection in which the words are used as 

reasonably to warrant the conclusion that they were 

employed . . . with different intent.” Envtl. Def. v. Duke 

Energy Corp., 549 U.S. 561, 574 (2007) (first alteration in 

original) (internal quotation marks omitted). The terms of 

section 215 suggest “such variation.” The reference to “users, 

owners and operators” in paragraph (b)(1) is followed by 

“including . . . [the United States].” The references to “user 

or owner or operator” in subsection (e), by contrast, are not 
15

followed by “including . . . [the United States].” It is at least 

plausible to conclude that Congress had a different intent in 

those two provisions.

Finally, the intersection between section 316A and 

section 215(e) fortifies the plausibility of that interpretation. 

Section 316A, entitled “Enforcement of certain provisions,” 

authorizes FERC to impose civil monetary penalties, up to $1 

million per day of violation, on “[a]ny person who violates 

any provision of subchapter II of this chapter or any provision 

of any rule or order thereunder.” 16 U.S.C. § 825o-1(b). The 

“provision[s] of subchapter II” and the “rule[s] or order[s] 

thereunder” include the reliability standards promulgated 

pursuant to section 215. Section 316A’s authorization of 

monetary penalties, however, is limited to “[a]ny person.” Id. 

And “person” in turn is defined for purposes of section 316A

(and other provisions) as “an individual or a corporation,” but 

does not include the United States. Id. § 796(4). Section 

316A thus undisputedly does not authorize imposition of 

monetary penalties against the United States for violations of 

reliability standards promulgated under section 215.

FERC maintains that section 215(e) constitutes a more 

specific penalty provision for violations of reliability 

standards, such that section 316A has no relevance to this 

case. But FERC itself has previously looked to section 316A 

to guide its interpretation of section 215(e)’s penalty 

authority, concluding that section 316A’s cap of $1 million 

per day applies to penalties imposed under section 215(e) for 

violations of reliability standards. See Rules Concerning 

Certification of the Electric Reliability Organization, 71 Fed. 

Reg. 8662, 8711 (Feb. 17, 2006). In any event, section 316A 

at least raises an ambiguity about whether section 215(e)

waives the federal government’s sovereign immunity from 

monetary penalties. Even assuming section 316A does not 
16

apply of its own force to fines for violations of section 215’s 

reliability standards, section 316A at least counsels against 

construing section 215(e) to authorize monetary awards 

against the United States. Otherwise, there would be a 

notable incongruity between two provisions whose plain 

terms both address monetary penalties for violating section 

215’s reliability standards—one of which would allow 

penalties against federal government entities, and the other of 

which would not. In the face of that sort of incongruity, the 

requirement to give effect to any plausible construction 

preserving sovereign immunity is controlling.

* * * * *

For the foregoing reasons, we vacate FERC’s order and 

remand for FERC to set aside the monetary penalty imposed 

on Southwestern. In light of our disposition, we need not 

consider FERC’s challenge to the standing of intervenors 

Mid-West Electric Consumers Association, Southwestern 

Power Resources Association, and Southeastern Federal 

Power Customers Inc., all of which contend that section 215 

does not waive the government’s sovereign immunity. We 

“follow the line of precedent in this circuit declining to assess 

a would-be intervenor’s standing when answering the 

question wouldn’t affect the outcome of the case.” Teva 

Pharm. USA, Inc. v. Sebelius, 595 F.3d 1303, 1318 (D.C. Cir. 

2010).

So ordered.