Kimball Wind, LLC v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2024 Decided June 13, 2025
No. 23-1236
KIMBALL WIND, LLC,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
AMERICAN PUBLIC POWER ASSOCIATION, ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
John P. Coyle argued the cause for petitioner. With him
on the briefs was Ashley M. Bond.
Susanna Y. Chu, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were Matthew R. Christiansen, General Counsel, and
Robert H. Solomon, Solicitor.

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Casen B. Ross, Attorney, U.S. Department of Justice,
argued the cause for intervenor Western Area Power
Administration in support of respondent. With him on the brief
were Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Melissa N. Patterson, Attorney.
John E. McCaffrey and Jonathan D. Schneider were on the
brief for intervenors American Public Power Association and
Large Public Power Council in support of respondent.
Before: HENDERSON and CHILDS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge CHILDS.
CHILDS, Circuit Judge: Kimball Wind, LLC, operates a
wind facility in Nebraska that generates electricity transmitted
on a network owned and operated by the Western Area Power
Administration (WAPA). Before Kimball Wind’s facility
began its operations, WAPA determined that a substation
expansion was necessary to ensure the network could safely
and reliably transmit the facility’s electricity output. WAPA
offered to cover part of the expansion costs but required that
Kimball Wind commit to pay the rest. Kimball Wind agreed
under protest, believing that WAPA wrongfully made it
responsible for most of the expansion costs.
Kimball Wind petitioned the Federal Energy Regulatory
Commission (the Commission) for an order, pursuant to
section 211A of the Federal Power Act (FPA), directing
WAPA to reimburse Kimball Wind’s contribution to the
substation expansion. The Commission determined that
section 211A does not provide for the relief sought by Kimball
Wind. We agree. Kimball Wind did not seek an order for

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transmission services—the sole form of relief provided by
section 211A. Accordingly, we deny the petition for review.
I.
A.
Transmission lines play an important role in the electric
grid, moving electricity produced by generators across long
distances to reach consumers. To maintain open access to
transmission lines, sections 205 and 206 of the FPA authorize
the Commission to regulate the transmission services provided
by certain utilities, 16 U.S.C. § 824e(a), to ensure that they are
provided at just, reasonable and non-discriminatory rates,
id. § 824d(a)–(b). But not all transmission utilities fall within
the Commission’s authority under sections 205 and 206.
Entities of the federal government that own and operate
transmission lines, for example, are outside the scope of those
sections. See id. § 824(f).
To address this gap, the Energy Policy Act of 2005 added
section 211A to the FPA. Section 211A gives the Commission
jurisdiction over “unregulated transmitting utilities,” which
include agencies, authorities, or instrumentalities of the United
States that “own[] or operate[] facilities used for the
transmission of electric energy in interstate commerce.”
Id. §§ 824(f), 824j-1(a)–(b). WAPA is an unregulated
transmitting utility, as it is an entity within the U.S. Department
of Energy that owns and operates a transmission network over
fifteen states.
The Commission’s statutory authority over unregulated
transmitting utilities, however, is limited. Because unregulated
transmitting utilities may provide transmission services to
themselves and other customers, section 211A is “designed to

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foster an open and competitive energy market by promoting
access to transmission services on equal terms.” Nw.
Requirements Utils. v. FERC, 798 F.3d 796, 808 (9th Cir.
2015). Accordingly, under section 211A, the Commission may
only order an unregulated transmitting utility to “provide
transmission services,” “(1) at rates that are comparable to
those that the unregulated transmitting utility charges itself;
and (2) on terms . . . that are comparable to those under which
the unregulated transmitting utility provides transmission
services to itself and that are not unduly discriminatory or
preferential.” 16 U.S.C. § 824j-1(b).
Section 211A grants the Commission discretionary
authority. S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41, 95–96
(D.C. Cir. 2014) (explaining that “section 211A plainly
permits, but does not mandate, the Commission to require [an
unregulated transmitting utility] to provide transmission
service on given terms”). The Commission has seen fit to issue
an order pursuant to section 211A only once, then providing
prospective relief and stressing that it “expect[ed] that the need
to use this statutory authority would be rare.” Iberdrola
Renewables, Inc., 137 FERC ¶ 61,185, ¶ 32 (2011).
B.
The dispute in this case stems from a long-running project
to develop wind-based electricity generation in Nebraska. In
2016, the Municipal Energy Agency of Nebraska (MEAN)
requested proposals to upgrade an existing wind generation
facility. MEAN selected Kimball Wind’s proposal to develop
an upgraded facility (“the Kimball Wind Farm”). MEAN and
Kimball Wind then entered into a power purchase agreement,
where MEAN would purchase the Kimball Wind Farm’s
electricity output for twenty years and the Kimball Wind Farm
would deliver electricity by June 2018. To begin delivering its

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electricity output, the Kimball Wind Farm had to connect to
WAPA’s transmission network.
WAPA transmits electricity for MEAN pursuant to a
transmission services agreement. As required by that
agreement, MEAN requested that WAPA transmit the Kimball
Wind Farm’s electricity output, which would be delivered
through the Kimball Substation, and then along a long-distance
transmission line, the Archer-Sidney Line.1
In considering MEAN’s request, WAPA carried out
preliminary studies to assess whether any changes to the
network’s infrastructure were necessary to safely and reliably
transmit the Kimball Wind Farm’s electricity output. WAPA’s
studies concluded that adding the Kimball Wind Farm’s output
to WAPA’s transmission network would “cause an overall
degradation in protective coverage for the Archer-Sidney . . .
line,” and recommended expanding the Kimball Substation
“with a four breaker ring bus.” J.A. 72. WAPA estimated that
the overall cost for the substation expansion would be about
$6.5 million.
The question then became who would pay for the
substation expansion. WAPA offered to contribute
$2.2 million, and proposed that MEAN pay the rest. MEAN
declined and notified WAPA that it would not be a party to any
agreement regarding the substation expansion. Facing an
impending deadline to begin delivering electricity, Kimball
Wind agreed under protest to be responsible for the remaining
costs. Kimball Wind ultimately paid around $5.9 million.
Kimball Wind then turned to the Commission for relief.
1 The Kimball Wind Farm is connected to a substation owned by the
City of Kimball, which in turn is connected to the Kimball Substation
by a transmission line owned by the City of Kimball.

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C.
Kimball Wind petitioned the Commission for an order,
pursuant to section 211A, directing WAPA to reimburse
Kimball Wind’s contribution to the substation expansion. In
May 2023, the Commission issued an order denying the
petition. As a threshold matter, the Commission found that
Kimball Wind could file a petition because section 211A does
not limit who can seek an order. The Commission determined,
however, that the relief Kimball Wind requested was not
appropriate under section 211A, because: (1) Kimball Wind
did not seek an order for transmission services; (2) Kimball
Wind was not WAPA’s transmission service customer; and (3)
even if section 211A authorized a reimbursement, Kimball
Wind did not provide any evidence it received non-comparable
transmission service from WAPA or explain how the requested
relief would remedy such non-comparable service.
Kimball Wind then filed a request for rehearing, arguing
that the order was internally inconsistent by finding that
Kimball Wind could file a petition but could not obtain relief
under section 211A, and that the order departed from
Commission precedent without explanation and was
unsupported by substantial evidence. The Commission denied
Kimball Wind’s request for rehearing. Kimball Wind filed this
consolidated petition for review of the Commission’s orders.
WAPA, the American Public Power Association, and Large
Public Power Council intervened.
II.
A.

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We have jurisdiction to review the Commission’s final
orders. 16 U.S.C. § 825l(b).2 We review the Commission’s
orders under the Administrative Procedure Act’s arbitrary,
capricious, or contrary to law standard. See 5 U.S.C. §
706(2)(A); LSP Transmission Holdings II, LLC v. FERC, 45
F.4th 979, 991 (D.C. Cir. 2022) (applying the APA’s arbitrary-
and-capricious standard to review actions under the FPA).
“[W]hen addressing a question of statutory interpretation, we
begin with the text,” and apply “the traditional tools of
statutory construction.” Pac. Gas & Elec. Co. v. FERC, 113
F.4th 943, 948 (D.C. Cir. 2024) (quotations omitted).
B.
The key question before us is whether section 211A
authorizes the Commission to issue an order directing WAPA
to reimburse Kimball Wind for its contribution to the
substation expansion. We agree with the Commission that
Kimball Wind does not seek an order for transmission
services—the only type of order the Commission may issue
under section 211A.3 Because the Commission’s orders can be
2 Neither the Tucker Act nor the Contracts Dispute Act limit our
jurisdiction over Kimball Wind’s petition, because “at its essence”
this case does not turn on a contractual dispute, Megapulse, Inc. v.
Lewis, 672 F.2d 959, 968 (D.C. Cir. 1982), and turns instead on the
scope of the Commission’s authority under section 211A, see
Crowley Gov’t Servs, Inc. v. GSA, 38 F.4th 1099, 1106 (D.C. Cir.
2022).
3 Although section 211A does not provide for the relief Kimball
Wind seeks, Kimball Wind has still shown that its claimed injury—
the Commission’s denial of a reimbursement order—is redressable
for purposes of Article III standing. “[D]uring the standing inquiry,”
the Court “accepts [petitioner’s statutory] interpretation . . . as
correct.” B.P. Energy Co. v. FERC, 828 F.3d 959, 963 (D.C. Cir.
2016) (quotations and citations omitted). Assuming that Kimball

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sustained on that determination alone, we do not address its
other reasons for declining Kimball Wind’s petition. See
Williams Gas Processing-Gulf Coast Co., L.P. v. FERC, 475
F.3d 319, 330 (D.C. Cir. 2006).
Pursuant to section 211A, the Commission may only order
“an unregulated transmitting utility to provide transmission
services” on comparable terms and rates. 16 U.S.C. § 824j-
1(b). Kimball Wind seeks an order for a reimbursement, either
as a cash payment from WAPA or a three-party rate-crediting
agreement between WAPA, MEAN, and Kimball Wind.
Kimball Wind contends that an order instructing WAPA to
reimburse it for its contribution to the substation expansion is
an order to “provide transmission services.” We are not
persuaded.
First, Kimball Wind’s request for a direct cash refund
from WAPA would not result in an order for transmission
services. Kimball Wind acknowledges that the only relief it
seeks is “the refund of [its] construction costs.” Oral Arg. Tr.
12:18–20. It does not seek a transmission services agreement
with WAPA, and it is not currently a party to such an
agreement. An order directing WAPA to reimburse Kimball
Wind with a cash refund would neither require that WAPA
provide transmission services to Kimball Wind nor modify the
terms on which WAPA provides transmission services to any
other party. Cf. Iberdrola Renewables, 137 FERC ¶ 61,185, ¶
30 (ordering an unregulated transmission utility to
prospectively modify the terms and conditions on which it
provides transmission services).
Wind will prevail in its argument that section 211A authorizes the
Commission to grant the reimbursement it seeks, a favorable ruling
from this Court would redress its injury.

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Second, Kimball Wind’s request for a three-party rate-
crediting agreement would not result in an order for
transmission services. Under Kimball Wind’s proposed three-
party rate-crediting agreement, WAPA would adjust the rate it
charges MEAN for transmitting electricity, and MEAN would
then use this rebate to reimburse Kimball Wind. The order
Kimball Wind seeks thus would direct WAPA to grant MEAN
rate credits and MEAN to reimburse Kimball Wind. Such an
order would not direct WAPA or MEAN to provide
transmission services to Kimball Wind.
On Kimball Wind’s petition, neither an order for a cash
refund nor an order for a three-party rate-credit agreement
would “require an unregulated transmitting utility to provide
transmission services.” 16 U.S.C. § 824j-1(b). The
Commission, therefore, correctly concluded that Kimball Wind
seeks relief that section 211A cannot provide.
C.
Kimball Wind also contends that the Commission’s orders
are arbitrary and capricious, because they are internally
inconsistent or because they are an unreasonable and
unjustified departure from Commission precedent and policy
disfavoring direct assignment of network upgrade costs. We
do not reach these questions in light of our preceding
conclusion that the Commission lacks statutory authority under
section 211A to order that WAPA reimburse Kimball Wind.
And Kimball Wind identifies no other independent statutory
basis for the reimbursement it seeks.
III.
For the foregoing reasons, we deny the petition for review.

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So ordered.

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