United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 7, 2022 Decided February 14, 2023

No. 21-1126

SOLAR ENERGY INDUSTRIES ASSOCIATION,

PETITIONER

v.

FEDERAL ENERGY REGULATORY COMMISSION,

RESPONDENT

NEWSUN ENERGY LLC AND BROADVIEW SOLAR, LLC,

INTERVENORS

Consolidated with 21-1136, 21-1142, 21-1149, 21-1175

On Petitions for Review of Orders of 

the Federal Energy Regulatory Commission

Jeremy C. Marwell argued the cause for petitioners The 

Edison Electric Institute and Northwestern Corporation. With 

him on the briefs were Sarah N. Norcott and James T. Dawson.
2

Heather Curlee argued the cause for petitioner Solar 

Energy Industry Association. With her on the briefs was Todd 

G. Glass.

Adam Lowney and Christopher Jones were on the brief for 

amicus curiae Pacificorp d/b/a/ Pacific Power and Rocky 

Mountain Power in support of petitioners.

Jared B. Fish, Attorney, Federal Energy Regulatory 

Commission, argued the cause for respondent. With him on 

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

Robert H. Solomon, Solicitor. Anand Viswanathan, Attorney, 

entered an appearance.

Robert M. Loeb argued the cause for intervenors NewSun 

Energy LLC and Broadview Solar, LLC. With him on the brief 

were Gregory M. Adams, Adam Wenner, and Jeremy R. 

Peterman. Peter Richardson entered an appearance.

Kip D. Nelson, Nick Jimenez, and Irion A. Sanger were on 

the brief for amici curiae Carolinas Clean Energy Business 

Association, et al. in support of respondent. 

Before: PILLARD and WALKER, Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

SENTELLE.

Opinion concurring in part and dissenting in part filed by 

Circuit Judge WALKER.

 SENTELLE, Senior Circuit Judge: The Edison Electric 

Institute and NorthWestern Corporation, d/b/a NorthWestern 

Energy, (collectively, “Utilities”) petition for review of an 
3

order by the Federal Energy Regulatory Commission 

(“Commission”) in which the Commission granted Broadview 

Solar’s application to become a qualifying facility under the 

Public Utility Regulatory Policies Act of 1978 (“PURPA”).

The Solar Energy Industries Association (“SEIA”) petitions for 

review of the Commission’s denial of its motion to intervene 

in the adjudication of Broadview’s application. 

Because we conclude that the Commission’s interpretation 

of the statute is entitled to deference and that the Commission 

did not act arbitrarily or capriciously, we deny the Utilities’ 

petitions. We dismiss SEIA’s petitions because it lacks Article 

III standing. 

Background

Section 210 of PURPA was enacted with the goal of 

promoting the creation and use of alternative energy. See Am. 

Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402, 

404–05 (1983). It does so, in part, by directing the Commission 

to prescribe rules affording “qualifying small power production 

facilities,” also commonly known as “qualifying facilities,”

certain benefits. See 16 U.S.C. § 824a-3(a)–(b). To be a 

qualifying facility under the Act, a facility must use “biomass, 

waste, renewable resources, geothermal resources, or any

combination thereof” to produce energy and have “a power 

production capacity which, together with any other facilities 

located at the same site . . . , is not greater than 80 megawatts.” 

Id. § 796(17)(A)(i)–(ii). Facilities may self-certify that they 

meet these requirements, or they may apply for certification 

from the Commission. See 18 C.F.R. § 292.207(a)–(b). One 

notable benefit to being a qualifying facility is the mandatory 

purchase obligation. Under it, electric utilities are required to 

purchase the energy generated by qualifying facilities, 
4

providing those facilities with a guaranteed market. See 16 

U.S.C. § 824a-3(a)(2); 18 C.F.R. § 292.303(a). 

In September 2019, Broadview applied for certification

from the Commission that its Montana facility was a qualifying 

facility. That facility consists of a 160 MW solar array and a 

50 MW battery storage system, both of which produce or store

direct current, or DC, power. Because the nation’s electric grid 

runs on alternating current, or AC, power, solar facilities must 

also have devices known as inverters to convert DC power into 

grid-usable AC power. Broadview’s Montana facility has 

inverters with a total net capacity of 80 MW.

In its application, Broadview noted its intent to 

interconnect with and sell energy to NorthWestern Energy, as 

it would be entitled to do under the mandatory purchasing 

requirement as a qualifying facility. The Edison Electric 

Institute, a trade association representing investor-owned 

electric companies across the United States subject to 

mandatory purchasing requirements, and NorthWestern 

Energy filed motions to intervene in the Broadview docket, 

objecting to certification of Broadview’s facility. Both 

motions were timely filed by the October 2, 2019, deadline. 

The Commission denied Broadview’s application for 

certification in a September 2020 Order, determining that 

Broadview’s facility exceeded the statute’s maximum “power 

production capacity” of 80 MW. See Broadview Solar, LLC, 

172 FERC ¶ 61,194 (2020), set aside, 174 FERC ¶ 61,199 

(2021), reh’g denied and modified, 175 FERC ¶ 61,228 (2021).

In reaching this conclusion, the Commission determined that 

the relevant “capacity” was that of the solar array, which was 

160 MW of DC power, and not the inverters’ “conversion 

limit” of 80 MW of AC power. Id. at 62,276. The Commission 

acknowledged it was departing from its previous approach set 
5

out in Occidental Geothermal, Inc., 17 FERC ¶ 61,231 (1981), 

which focused on the facility’s net output, or “send-out,”

capacity. It determined, however, that the send-out approach

was inconsistent with the statute’s text. Broadview filed a 

request for rehearing. After the Commission issued its

September 2020 Order, SEIA also filed a motion to intervene,

nearly one year after the original deadline.

In March 2021, the Commission issued a new Order 

granting Broadview qualifying facility status and setting aside 

its September 2020 Order. Broadview Solar, LLC, 174 FERC 

¶ 61,199 (2021). After determining that § 796(17)(A) was 

ambiguous as to the proper measure of a facility’s “power 

production capacity,” the Commission determined that its 

former send-out approach was the best interpretation because 

it takes into account all of the facility’s components working 

together, not just the maximum capacity of one subcomponent, 

and focuses on grid-usable AC power. Broadview Solar, LLC, 

174 FERC ¶ 61,199, at 61,797. Because Broadview’s send-out 

capacity at any single point in time is capped by the inverters’ 

net output capacity of 80 MW of power, the Commission 

determined that Broadview’s facility met the statutory 

requirements and granted it qualifying facility status. Id. at 

61,799, 61,801–02. In the same March 2021 Order, the 

Commission also determined SEIA failed to establish good 

cause for its untimely motion to intervene and denied that 

motion. Id. at 61,795.

The Utilities and SEIA filed requests for rehearing. The 

Commission issued its June 2021 Order, reaffirming that 

Broadview was a qualifying facility and modifying its March 

2021 Order to reject the Utilities’ arguments that Broadview’s 

facility represented a novel subversion of the statute and that 

the battery’s capacity had to be calculated separately from the
6

capacity of the solar array. Broadview Solar, LLC, 175 FERC 

¶ 61,228 (2021). This appeal followed.

Analysis

A. PURPA

i. Chevron Challenge

The Utilities argue that the Commission exceeded its 

statutory authority because, in their view, the “power 

production capacity” of Broadview’s facility is the total 

amount of DC power generated by the solar array and not the 

grid-usable AC power produced by the inverters working in 

conjunction with the solar array and battery. The Commission 

argues that the statute is ambiguous as to the proper measure of 

a facility’s “power production capacity” and that its 

interpretation, focusing on the amount of AC power being sent 

out to the grid, is reasonable. We agree with the Commission.

In interpreting the statute, this Court’s analysis is governed 

by the two-step framework set out in Chevron U.S.A. Inc. v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Under step one, the court asks “whether Congress has directly 

spoken to the precise question at issue.” Id. at 842. If it has,

“the court, as well as the agency, must give effect to the 

unambiguously expressed intent of Congress.” Id. at 842–43.

But “if the statute is silent or ambiguous with respect to the 

specific issue,” the court moves to step two and must uphold 

any agency interpretation that is “reasonable.” Id. at 843–44.

The parties’ dispute in this case turns on the meanings of

“facility” and “power production capacity” in 16 U.S.C. 

§ 796(17)(A). PURPA does not define these terms. In plain 

language, a facility’s “power production capacity” is the 

maximum amount of power that the facility can produce. But 
7

the statute does not state whether the relevant capacity is that 

of the individual subcomponent generating DC power, i.e., the 

solar array, or of all the facility’s components working together

to produce grid-usable AC power, which would include the

inverters. Because Congress has not spoken to the issue, we 

move to step two and must defer to any reasonable agency 

interpretation.

To determine whether the Commission’s interpretation 

was reasonable, we look to see if it “is based on a permissible 

construction of the statute in light of its language, structure, and 

purpose” and consistent with the legislative history. Nat’l 

Treasury Emps. Union v. Fed. Lab. Rels. Auth., 754 F.3d 1031, 

1042 (D.C. Cir. 2014) (quoting Am. Fed’n of Labor v. Chao, 

409 F.3d 377, 384 (D.C. Cir. 2005)); see also Bell Atl. Tel. Co. 

v. FCC, 131 F.3d 1044, 1048-49 (D.C. Cir. 1997). 

We start with the text. On appeal, the Commission raised 

for the first time the argument that “capacity” has an industryspecific definition meaning the maximum amount of power 

that can be supplied to the power grid, i.e., for end-user 

demand. Because this was not a basis for the Commission’s 

decision, we do not consider it here. See Secs. & Exch.

Comm’n v. Chenery Corp., 318 U.S. 80, 87, 95 (1943). Even 

so, the Commission’s interpretations of “power production 

capacity” as “the facility’s net output to the electric utility,” and 

of “facility” as “all of the putative [qualifying facility’s] 

component parts as they work together as a whole,” were 

eminently reasonable. See 175 FERC ¶ 61,228, at 62,316–17

(internal quotation marks and citation omitted). As discussed, 

the statute is ambiguous on the meanings of “power production 

capacity” and “facility.” The only grid-usable “power” that 

Broadview produces is AC power, and Broadview’s inverters 

work with the solar array and battery as an integral component 

in producing that power.
8

The Commission’s interpretation was further guided, and 

is amply supported, by the statute’s structure and purpose.

Determining qualifying facility status by the facility’s net 

output brings various provisions of PURPA into harmony. One 

of the main benefits of being a qualifying facility is the

mandatory purchasing requirement. But the mandatory 

purchasing requirement only applies to grid-usable power—

meaning AC power. The Commission’s interpretation of 

“power production capacity” similarly focuses on net output of 

grid-usable AC power. Thus, the measure used to determine 

whether a facility is eligible for qualifying facility status is the 

same used to determine benefits available to those qualifying 

facilities. 

The Commission’s focus on net output is likewise

“consistent with the statutory purpose” of PURPA. Troy Corp. 

v. Browner, 120 F.3d 277, 285 (D.C. Cir. 1997) (citing 

Chevron, 467 U.S. at 843). Title II of PURPA was intended 

“to encourage the development of . . . small power production 

facilities” and promote the use of alternative energy sources, 

such as solar. Conn. Valley Elec. Co. v. FERC, 208 F.3d 1037,

1045 (D.C. Cir. 2000) (quoting FERC v. Mississippi, 456 U.S. 

742, 750 (1982)). Excluding facilities from qualifying facility 

status because their component parts have individual 

production capacities over 80 MW, even though the overall 

facility cannot send out more than 80 MW to the grid, would 

be inconsistent with that goal.

Compared to facilities that rely on other energy sources, 

solar facilities are relatively inefficient at generating power. A 

solar array needs sunlight; cloud cover and nighttime hinder its

production capabilities. Broadview addressed this by installing

a solar array with a capacity of 160 MW and a battery, enabling 

it to produce extra power to be stored in the battery while
9

conditions are optimal and then release that power to the grid 

when conditions prevent the array from producing enough 

power to meet the inverters’ 80 MW limit. The Utilities

complain that this allows Broadview to circumvent the 

statutory restrictions on qualifying facilities. But viewed in 

light of the statute’s purpose, this arrangement is a feature, not 

a bug: Broadview is able to more consistently produce, send 

out, and sell the maximum amount of renewable energy 

permitted under the statute.

The Commission’s interpretation is also consistent with 

the legislative history. See City of Cleveland v. U.S. Nuclear 

Reg. Comm’n, 68 F.3d 1361, 1367–68 (D.C. Cir. 1995). The 

Utilities rely on one sentence from a House Committee Report 

stating that “[t]he power production capacity of the facility 

means the rated capacity of the facility.” H.R. Rep. No. 95-

1750, at 89 (1978) (Conf. Rep.). While neither the legislative 

history nor PURPA defines “rated capacity,” it is most 

frequently used to refer to the performance anticipated under 

“standard operating conditions.” Occidental, 17 FERC 

¶ 61,231, at 61,444–45. The Utilities adopt this definition in 

their briefing but fail to apply that definition to the House 

Committee’s full quote, which referred to the “rated capacity 

of the facility.” H.R. Rep. No. 95-1750, at 89 (1978) (Conf. 

Rep.) (emphasis added). Broadview’s facility consists of a 

solar array, battery, and inverters that can regularly produce 80 

MW of grid-usable power. As the Commission previously 

recognized, “a facility’s power production capacity is not 

necessarily determined by the nominal rating of even a key 

component of the facility. . . . [I]t is not uncommon for smaller 

facilities to find it most economic to employ commercially 

available components[,] some of which have individual 

capabilities significantly exceeding the overall facility 

capabilities.” Occidental, 17 FERC ¶ 61,231, at 61,445.
10

The Commission’s determination that Broadview is a 

qualifying facility with a “power production capacity . . . not 

greater than 80 megawatts,” 16 U.S.C. § 796(17)(A)(ii), 

because its component parts, working together, produce no 

more than 80 MW of grid-usable AC power was reasonable and 

well-supported by the statute’s text, structure, purpose, and 

legislative history. 

ii. Arbitrary and Capricious Challenges

The Utilities raise several other arguments, none of which 

compels a different result than their first. First, the Utilities 

claim the Commission acted arbitrarily and capriciously by 

granting Broadview’s application and ignoring errors on one of 

Broadview’s form submissions. The Commission requires that 

all qualifying facility applicants complete its Form 556. See 18 

C.F.R. § 292.207(a)(1), (b)(2). That form provides a formula 

for calculating the facility’s maximum net power production 

capacity, starting with the “maximum gross power production 

capacity at the terminals of the individual generator(s)” and 

subtracting out certain enumerated figures, including electrical 

losses and power used to run the facility’s equipment. FERC 

Form No. 556. When asked for the “maximum gross power 

production capacity at the terminals of the individual 

generator(s),” Broadview, in one submission, reported a value 

of approximately 82.5 MW, while the Utilities claim the 

correct value was 160 MW. Because of that error, the Utilities 

claim the Commission could not grant Broadview’s 

application.

This argument fails because it treats an applicant’s 

completion of Form 556—a tool meant to aid the Commission 

in its eligibility determination—as itself determinative. As the 

Commission explained in its March 2021 Order, “Form No. 

556 was always intended to be a flexible tool . . . to submit 
11

information relevant to whether a facility meets the 

requirements to be considered a [qualifying facility].” 174 

FERC ¶ 61,199, at 61,800. Even assuming the correct input on 

the form was 160 MW, Broadview explained its facility’s novel

setup and why its “maximum net power production capacity” 

was 80 MW. The Commission’s decision to treat Broadview’s 

Form 556 submissions as helpful for determining, but not 

dispositive of, the facility’s eligibility was not arbitrary or 

capricious. 

The Utilities also argue the Commission’s decision to treat 

the solar array and battery as a single facility was arbitrary and 

capricious. Because the Commission’s decision to do so was 

not inconsistent with the statutory text nor the Commission’s 

own precedent, this argument also fails. 

When determining whether a facility is eligible for 

qualifying facility status, the Commission must look at the

combined power production capacity of “facilities located at 

the same site.” 16 U.S.C. § 796(17)(A)(ii); see also 18 C.F.R. 

§ 292.204(a)(1)–(2). As we have discussed, the Commission’s 

interpretation of “facility” to encompass all the components 

working together to produce grid-usable AC power was 

reasonable. But standing on its own, Broadview’s battery can 

store only DC power and cannot deliver any usable power to 

the grid. Accordingly, the battery is not a separate “facility” 

under the Commission’s reasonable interpretation of the 

statutory text. 

Citing Luz Development & Finance Corp., 51 FERC 

¶ 61,078 (1990), the Utilities argue that Broadview’s battery

must be considered a separate facility and its capacity 

aggregated with that of the solar array or inverters. But Luz

merely recognized that a battery can be a standalone qualifying

facility, id. at 61,172; that possibility does not compel the result 
12

that it must be a separate facility. The battery in Luz was used 

to store energy purchased from the grid until it was later resold 

during periods of higher demand, id. at 61,168, and is easily

distinguishable from Broadview’s battery that stores DC power 

until it can be sent through the inverters and transformed into

grid-usable AC power.

Finally, the Utilities challenge the Commission’s decision 

to look at Broadview’s instantaneous net power output and not

its power output over time. The statute measures “power 

production capacity” in “megawatts.” But power production 

over time is measured in “megawatt-hours.” Rather than being 

arbitrary and capricious, the Commission’s focus on 

instantaneous power production adhered to the statutory 

language.

B. SEIA’s Petitions

Turning now to SEIA’s petitions for review of the 

Commission’s denial of its motion to intervene, “[o]ur analysis 

begins and ends with consideration of our jurisdiction.” 

Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 239 (D.C. Cir. 

2015). 

For this Court to have jurisdiction, the plaintiff must have 

standing. “The ‘irreducible constitutional minimum of 

standing contains three elements’: (1) the plaintiff must have 

suffered injury in fact, an actual or imminent invasion of a 

legally protected, concrete and particularized interest; (2) there 

must be a causal connection between the alleged injury and the 

defendant’s conduct at issue; and (3) it must be ‘likely,’ not 

‘speculative,’ that the court can redress the injury.” Ctr. for 

Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 

2005) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–

61 (1992)). 
13

SEIA fails on the first requirement as it has not suffered an 

Article III injury-in-fact. SEIA’s claimed injury is that it was 

“effectively precluded” from defending the net output, or sendout, approach in the Commission’s adjudication of 

Broadview’s application. Pet. Br. at 9–10. According to SEIA, 

any reconsideration of that approach was likely to occur, if at 

all, during the Commission’s contemporaneous rulemaking or 

the ensuing Ninth Circuit litigation. Because SEIA failed to 

anticipate FERC’s decision to reconsider the send-out 

approach in the Broadview adjudication, it also failed to timely 

intervene in that proceeding and thus could not participate to 

defend the approach. 

At the outset, it should be noted that agencies have “very 

broad discretion to decide whether to proceed by adjudication 

or rulemaking.” Conf. Grp., LLC v. FCC, 720 F.3d 957, 965 

(D.C. Cir. 2013). The Commission’s decision to consider the 

send-out approach in the Broadview adjudication, rather than 

through the rulemaking process, was within the bounds of its 

discretion. SEIA’s claimed injury presupposes that it had a 

right to participate in any proceedings regarding the send-out 

approach. It did not. “[T]he mere fact that an adjudication 

creates a precedent that could harm a non-party does not create 

the injury-in-fact required for Article III standing.” Id. at 959.

SEIA’s failure to timely intervene is the result of its own 

mistaken judgment. The effect of that mistake—SEIA’s 

inability to participate in the Commission’s proceedings—does 

not give rise to an Article III injury. Accordingly, its petitions

are dismissed.
14

CONCLUSION

For the reasons stated above, we deny the Utilities’ 

petitions and dismiss SEIA’s petitions. 
WALKER, Circuit Judge, concurring in part and dissenting in 

part: 

The Public Utility Regulatory Policies Act gives lucrative 

benefits to small facilities that produce solar power. It defines 

them as facilities with a “power production capacity” of no 

more than 80 megawatts. 16 U.S.C. § 796(17)(A)(ii). 

Broadview is a solar-power facility. At its peak, it can produce up to 130 megawatts of useful power. So it is not a “small 

facility.” 

Because the Federal Energy Regulatory Commission concluded otherwise, I would grant the petitions for review and 

vacate FERC’s decision.

I. Background

A. The Public Utility Regulatory Policies Act

The Public Utility Regulatory Policies Act encourages

companies to produce renewable energy. See 16 U.S.C. 

§ 824a-3(a); see generally FERC v. Mississippi, 456 U.S. 742, 

745-46, 750-51 (1982) (describing the Act’s history). 

To achieve that goal, the Act gives extraordinary benefits 

to “small power production facilit[ies].” 16 U.S.C.

§796(17)(A). Those facilities produce electricity from “biomass, waste, renewable resources, [or] geothermal resources.” 

Id. §796(17)(A)(i). The Act exempts them from several regulatory burdens. Id. § 824a-3(e)(1) (directing FERC to make 

rules exempting “small power production facilities” from regulation under various statutes). And it guarantees them a viable 

market by forcing public utilities to buy power that small facilities produce. 16 U.S.C. § 824a-3(a)(2), (b). 
2

Requiring public utilities to purchase all the power produced by small facilities is strong medicine. It can force them

to buy power that they do not need or to buy power at an abovemarket price. That cost is passed on to consumers. Powering 

America: Reevaluating the Public Utility Regulatory Policies 

Act’s Objectives and its Effects on Today’s Consumers: Hearing Before the H. Subcomm. on Energy & Commerce, 115th 

Cong. 84 (2017) (testimony of Terry L. Kouba, Vice President, 

Alliant Energy). 

Thus, the Act’s definition of “small facility” plays a key 

role in the statutory scheme: It keeps the mandatory-purchasing 

regime within bounds. The broader the definition of “small facility,” the greater the number of power plants that get special 

regulatory treatment under the Act. 

The Act defines “small facility” as a “facility” with a 

“power production capacity” of no more than 80 megawatts. 

Id. § 796(17)(A)(ii).

B. Broadview’s Design

Broad Reach Power makes solar and wind energy in California, Montana, Texas, Utah, and Wyoming. Its complex in 

Yellowstone County, Montana cost at least $2 billion to build. 

In 2019, the Montana Complex could deliver 620 megawatts of 

power. That is only slightly less than the amount of power produced by the Hoover Dam in 1939, when it became the world’s 

largest hydroelectric facility. The Story of the Hoover Dam, 

Bureau of Reclamation (July 13, 2022), 

https://perma.cc/6JWN-BY77. 

In 2019, the Montana Complex contained four separate but 

similar solar-power projects. One of them is called Broadview I. 
3

Broadview includes a solar array, a battery, and inverters. 

With 470,000 solar panels, its solar array produces up to 160 

megawatts of direct-current power. The battery stores some of 

those megawatts. And the inverters convert up to 80 megawatts from DC power to alternating-current power. Because 

the electric grid accepts only AC power, inversion makes the 

power ready for the grid to receive it.

Depending on the time of day, Broadview’s components

serve different purposes. During the day, the solar array sends

80 megawatts of power to the inverters and charges the battery. 

But at night, it can’t generate power. That’s when the battery 

matters most. At night, it sends stored power to the inverters

and then on to the grid. With the battery, Broadview can deliver more power to the grid than it could without it.

C. FERC’s Decision

In 2019, Broadview asked FERC to certify it as a “small 

facility.” It argued that its “power production capacity” was 

not greater than 80 megawatts because its inverters can send 

only 80 megawatts to the grid at once. 16 U.S.C.

§796(17)(A)(ii).

1

 

FERC initially denied Broadview’s application, but it reversed course on rehearing. According to FERC, the Public 

Utility Act’s definition of “small facility” is ambiguous

1 Because Broadview is more than one mile apart from the other facilities in the Montana Complex, FERC analyzes it separately under 

the small-facility rule. 18 C.F.R. § 292.204(a)(1)-(2); see also Order

re. Broadview Solar III, 2021 WL 3641570 (Aug. 13, 2021) (accepting withdrawal of an application for small-facility status for another 

plant in Montana Complex).
4

because the statute “neither defines the terms ‘facility’ and

‘power production capacity,’ nor explains how the Commission is supposed to ascertain the ‘power production capacity’ 

of any particular ‘facility.’ ” JA 200. FERC decided to interpret “power production capacity” to mean the “maximum output that the facility can produce for the electric [grid].” JA 201.

Two intervenors, Northwestern Energy and the Edison

Electric Institute, petitioned for this Court’s review. If Broadview is a small facility, the Public Utility Act’s mandatory-purchasing rule will force Northwestern and some of Edison’s 

members to buy Broadview’s power — even if they don’t need 

it. 

II. Chevron

The majority opinion captures the central issue: “The parties’ dispute in this case turns on the meanings of ‘facility’ and 

‘power production capacity’ in 16 U.S.C. § 796(17)(A). [The 

Public Utility Act] does not define these terms. In plain language, a facility’s ‘power production capacity’ is the maximum 

amount of power that the facility can produce. But the statute 

does not state whether the relevant capacity is that of the individual subcomponent generating DC power, i.e., the solar array, or of all the facility’s components working together to produce grid-usable AC power, which would include the inverters.” Majority Op. 6-7.

I agree with that summary. The statute does not expressly

state whether “power production capacity” includes “all the facility’s components working together.” But a lack of express 

language does not mean that the statute has no answer to the 

question presented. I would not so quickly conclude, as the 

Court’s next sentence does, that “Congress has not spoken to 

the issue” and so we “must defer to any reasonable agency 
5

interpretation” under Chevron v. Natural Resources Defense 

Council, 467 U.S. 837 (1984). Majority Op. 7. 

That is the path of “Chevron maximalism.” Buffington v. 

McDonough, 143 S. Ct. 14, 21 (2022) (Gorsuch, J., concurring 

in denial of certiorari). When no express text makes the answer 

immediately obvious, some maximalists make a beeline to 

agency deference — before any inquiry into statutory structure, cross-references, context, precedents, dictionaries, or canons of construction. Then, they use the tools of statutory interpretation not to find the best reading of the text but instead to 

test whether the agency’s interpretation is “reasonable.” Id. at 

20.

On the D.C. Circuit, Chevron maximalism is alive and well. 

See, e.g., Loper Bright Enterprises, Inc. v. Raimondo, 45 F.4th 

359, 369 (D.C. Cir. 2022) (“some question” about the meaning 

of a statute is enough to trigger Chevron deference); American 

Hospital Association v. Azar, 967 F.3d 818 (D.C. Cir. 2020)

(relying heavily on Chevron), rev’d sub nom American Hospital Association v. Becerra, 142 S. Ct. 1896, 1906 (2022) (not 

mentioning Chevron). 

But the Supreme Court’s recent decisions repudiate maximalism. Indeed, the Court has not deferred to an agency under 

Chevron since 2016. See, e.g., Becerra v. Empire Health Foundation, 142 S. Ct. 2354 (2022) (not mentioning Chevron); National Federation of Independent Business v. OSHA, 142 S. Ct. 

661 (2022) (same); BNSF Railway Co. v. Loos, 139 S. Ct. 893 

(2019) (same). Instead, the Court has policed the limits of deference to agencies. See, e.g., West Virginia v. EPA, 142 S. Ct. 

2587 (2022).

The most important limit is found in Chevron itself: “If a 

court, employing traditional tools of statutory construction, 
6

ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” 

Chevron, 467 U.S. at 843 n.9. In other words, courts must try 

every tool of statutory construction before declaring the text 

ambiguous and proceeding to agency deference. If they do, 

they “will almost always reach a conclusion about the best interpretation” of the statute, thus resolving any ambiguity. Kisor v. Wilkie, 139 S. Ct. 2400, 2448 (2019) (Kavanaugh, J., 

concurring); see also SAS Institute Inc. v. Iancu, 138 S. Ct. 

1348, 1358 (2018) (quoting Chevron, 467 U.S. at 843 n.9)

(“Even under Chevron, we owe an agency’s interpretation of 

the law no deference unless, after ‘employing traditional tools 

of statutory construction,’ we find ourselves unable to discern 

Congress’s meaning.”).

True, Congress may leave “a gap for the agency to fill.” 

Chevron, 467 U.S. at 843. “For example, Congress might [direct] an agency to issue rules to prevent companies from dumping ‘unreasonable’ levels of certain pollutants. In such a case, 

what rises to the level of ‘unreasonable’ is a policy decision.” 

Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 

Harv. L. Rev. 2118, 2152 (2016). Where an agency uses its 

expertise to fill such a gap, courts should not second guess the 

agency’s decision. Id.

But today’s case is different. The Public Utility Act does 

not invite FERC to fill a policy gap. Instead, as FERC recognizes, the meaning of the statute’s technical language “turns on 

legal principles of the sort that a court usually [applies] — i.e., 

principles of statutory interpretation — and not determinations 

specifically entrusted to an agency’s expertise.” FERC Br. 40 

n.9 (cleaned up). And courts should not defer when a statute’s 

meaning can be resolved using normal interpretive tools. “The 

judiciary is the final authority on issues of statutory construction.” Chevron, 467 U.S. at 843 n.9. 
7

So here there is every reason to resist the temptation “habitua[lly] to defer to the interpretive views of [the] agenc[y].” 

Valent v. Commissioner of Social Security, 918 F.3d 516, 525 

(6th Cir. 2019) (Kethledge, J., dissenting). Instead, we can decide this case by applying, in FERC’s words, the “legal principles of the sort that a court usually [applies] — i.e., principles 

of statutory interpretation.” FERC Br. 40 n.9 (cleaned up). 

That approach follows the Supreme Court’s recent Chevron 

caselaw and avoids further entrenching a vertical split between 

how the Supreme Court and lower courts apply Chevron.

2

III. Broadview Is Not a “Small Facility”

Applying the normal tools of statutory interpretation, 

Broadview is not a “small facility” under the Public Utility Act 

because its “power production capacity” is greater than 80 

megawatts. 

A. “Facility”

Start with the term “facility.” 16 U.S.C. §796(17)(A). A 

facility is “something . . . that is built, installed, or established 

to serve a particular purpose.” Facility (def. 4b), Merriam2 Though the Supreme Court has given up on Chevron maximalism 

(and perhaps on Chevron altogether), lower courts have not. Between 2003 and 2013, lower courts applied Chevron in 74.8% of statutory interpretation cases involving agencies and reached step two 

65.7% of the time. Kent H. Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 116 Mich. L. Rev. 1, 29, 33 (2017). That 

trend has continued since then. In 2020 and 2021, circuit courts applied Chevron 84.5% of the time and reached step two in 59.2% of 

those cases. See Brief of the Cato Institute and Liberty Justice Center 

as Amicus Curiae in Support of Petitioners at 21, Loper Bright v. 

Raimondo, No. 22-451 (2022) (supporting petition for certiorari).
8

Webster (2023). The statute’s focus on a “facility” suggests 

that we should assess the production capacity of a power plant 

as a whole, not the capacity of an individual component. 

That rules out a few possibilities. 

First, it tells us that we should not look only at the capacity 

of Broadview’s 160-megawatt solar array. That approach 

would ignore the facility’s other components — for instance, 

the inverters that limit the array’s output to the grid.

Second, it tells us that we should not exclude the power 

used to charge the facility’s battery. The battery is part of the 

facility. So refusing to count power that the solar array sends 

to the battery fails to give full meaning to the word “facility.”

FERC says we shouldn’t count power sent to the battery 

because it is “not useful to anybody.” See Oral Arg. Tr. 31. 

But a battery like Broadview’s lets a solar facility send power 

to the grid at times when it otherwise could not. By allowing 

the facility to deliver power at night, the battery “increase[s] 

[Broadview’s] ability to provide reliable and/or timely service 

to . . . customers.” JA 54 (Pasley Affidavit).

The battery also makes Broadview more efficient. A solarpower facility without a battery sends to the grid “approximately 25 to 30 percent” of the maximum power its array could 

theoretically generate each day. Id. With the battery, Broadview sends “approximately 35 to 40 percent,” id., because it is

“capable of sustaining its maximum output for additional hours 

in the day,” JA 23. That increased efficiency makes the facility 

more profitable. See Christopher Cerny, A Broad View of 

Broadview Solar: How FERC’s Whiplash-Inducing Orders Expand the Scope of PURPA, 23 Minn. J.L. Sci. & Tech. 363, 406 

(2022). 
9

In short, the battery is useful. It lets Broadview make more 

money by prolonging its maximum output. 

B. “Power Production Capacity”

Turn next to the phrase “power production capacity.” 

1. “Power”

Power means “a source or means of supplying energy, especially[] electricity.” Power (def. 6), Merriam-Webster 

(2023). “Power” includes both DC power and AC power. See 

Chemeheuvi Tribe of Indians v. Federal Power Commission, 

489 F.2d 1207, 1217 (D.C. Cir. 1973) (discussing history of 

power transmission). So both the DC power used to charge the 

battery and the AC power sent directly to the grid count as 

“power.” 

Yet FERC claims that only the 80 megawatts of AC power 

sent to the grid should count as Broadview’s power-production 

capacity. That adds an atextual limit that Congress didn’t 

adopt. The Public Utility Act says “power production capacity,” not “AC power production capacity.” And Congress is 

perfectly capable of saying “AC” when it wants to. See, e.g., 

26 U.S.C. §48E(a)(2)(A)(ii) (defining a “qualified facility” as 

one “with a maximum net output of less than 1 megawatt (as 

measured in alternating current))” (emphasis added). 

2. “Production”

After “power” comes “production.” To “produce” something is to “create” it, or to “cause [it] to accrue.” Produce 

(defs. 6 & 7), Merriam-Webster (2023). Another apt synonym 

is to “generate.” See Facebook, Inc. v. Duguid, 141 S. Ct. 
10

1163, 1171-72 (2021) (noting the “close[] connect[ion]” between the verb “produce” and the noun “generator”). 

Powersent to a battery like Broadview’sis created and does 

accrue. Before the sun’s rays hit Broadview’s array, the battery 

is empty. It is charged when the facility converts solar energy 

into useful power. If Broadview did not “produce” the power 

used to charge the battery, what did?3

Consider what happens when the battery charges. Broadview uses a lithium-ion battery. Charging that battery prompts

a chemical reaction, causing lithium ions to move within the 

battery. How Does a Lithium-Ion Battery Work?, Energy.gov 

(Sept. 14, 2017), https://perma.cc/CUA8-Y9UK (during charging “[l]ithium ions are released by the cathode and received by 

the anode”). Without power, that chemical reaction could not 

happen. So Broadview must “produce” the power used to 

charge the battery.

3. “Capacity”

In the statute’s context, “capacity” means “the maximum 

amount of power that the facility can produce.” Majority Op. 

6-7; see also Capacity (def. 5), Merriam-Webster (2023) (defining “capacity” as “maximum output”).

But here, FERC rewrites the statute. It says “capacity” includes only the power that a facility suppliesto the electric grid.

3 Some power at facilities like Broadview is lost to inefficiencies during production. FERC allows power plants to deduct those “electrical losses” from their power production capacity. See JA 210. So if 

Broadview had a 160-megawatt array, 80-megawatt inverters, and no 

battery, it would count as a “small facility” — albeit an inefficient 

one that loses half of its potential output during production. 
11

Yet that changes “power production capacity” to “power delivery capacity.” And the word “production” means something 

different from “delivery.” See Deliver (def. 5), Merriam-Webster (2023) (“[T]o send . . . to an intended target or destination.”).

4 

To its credit, FERC conceded at oral argument that “power 

production capacity” would likely include power never delivered to the grid if it is used “on site” for a “useful” purpose like 

powering an on-site factory. Oral Arg. Tr. 30. But that concession just highlights the problem with FERC’s approach: 

Charging a battery like Broadview’s is a useful purpose.

C. Broadview’s “Power Production Capacity”

Broadview has the capacity to produce 130 megawatts of 

power. It produces 80 megawatts of inverted AC power that is 

delivered to the grid while producing 50 megawatts of not-yetinverted DC power to charge its battery.5 Because “power” 

4 FERC conflated “production” and “delivery” in its rehearing order, 

although its counsel wisely retreated from that approach on appeal. 

Compare JA 201 (FERC: “ ‘ production’ and ‘delivery’ . . . are overlapping”), with Oral Arg. Tr. 33 (FERC: “we’re not talking about 

delivery”); id. at 37 (“[Y]ou’re not depending on a conflation of the 

words production and delivery — right? [FERC:] Correct.”).

5 The record is unclear on the amount of power the battery can receive from the array. But the parties agree that the battery can take 

in up to 50 megawatts. Compare Edison Br. 10 n.3 (“The Broadview 

Project’s battery can be charged at the same rate as it discharges — i.e., it can receive and send out 50 megawatts of energy 

each hour.”), with FERC Br. 14 (“[U]p to 50 megawatts of power is 

diverted to battery storage for later release.”). 
12

includes AC and DC power, Broadview’s power production capacity is the sum of the two:

80 + 50 = 130

Consider an analogy. Every weekday, a lumberjack cuts 

down two trees and chops them into sellable timber. But he 

has a small truck and can take only one tree’s worth of timber

to market daily. What is the lumberjack’s daily timber “production capacity”? Two trees. Every day he works, he can turn 

two trees into sellable timber. (Maybe he delivers some of the 

other trees on the weekends.)

Broadview is similar. When the sun is out, Broadview produces 80 megawatts of power for the inverters and 50 megawatts of power for the battery — the equivalent of the lumberjack’s two trees. Like the lumberjack’s second tree, the 50 

megawatts of power sent to the battery is still produced even 

though it isn’t immediately delivered to the market for use on 

the grid. The key is that the 50 megawatts produced by the 

solar array and sent first to the battery is not wasted by the facility. Those 50 megawatts end up on the grid — just like the 

80 megawatts sent from the solar array directly to the inverters. 

That gives Broadview a power production capacity of 130 

megawatts. And because the power production capacity of a

“small facility” cannot exceed 80 megawatts, Broadview is not 

a “small facility.” 16 U.S.C. §796(17)(A).
13

IV. Conclusion

The following three facts are uncontested:

1. When the Public Utility Act says “power,” it does not 

specify between AC power and DC power.

2. Broadview can send 80 megawatts of AC power directly to the grid for sale via the inverters.

3. At the exact same moment, up to 50 megawatts of DC

power goes straight to the battery, then later to the inverters, and then on to the grid for sale.

Because Broadview can produce 80 megawatts for its inverters while it simultaneously produces 50 megawatts for its 

battery, Broadview’s facility is capable of producing more than 

80 megawatts of power. So it is too large to be a “small facility.” 

For that reason, I would grant the petitions, vacate the rehearing orders, and remand to FERC for reconsideration.6

6 I agree with the majority that Solar Energy lacks standing to challenge FERC’s denial of its motion to intervene.