Hecate Energy LLC v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2024 Decided January 21, 2025
No. 23-1089
HECATE ENERGY LLC,
P ETITIONER
v.
FEDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
PJM INTERCONNECTION, L.L.C.,
INTERVENOR
Consolidated with 23-1182
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Aaron M. Streett argued the cause for petitioner. With him
on the briefs were Michael A. Yuffee, J. Mark Little, and
Christopher E. Tutunjian.
Angela X. Gao, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were Matthew R. Christiansen, General Counsel, and

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Robert H. Solomon. Susanna Y. Chu, Attorney, entered an
appearance.
Wendy B. Warren argued the cause for intervenor in
support of respondent. With her on the brief were Elizabeth P.
Trinkle and David S. Berman.
Before: HENDERSON, P ILLARD, and C HILDS , Circuit
Judges.
Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, Circuit Judge: Hecate Energy, LLC, develops
and operates facilities to generate and store renewable power.
It petitions for our review of two Federal Energy Regulatory
Commission orders that approve comprehensive reforms
proposed by PJM Interconnection, LLC, a regional
transmission grid operator, to the criteria PJM uses to process
requests to connect new electricity sources to the electrical
grid. One issue PJM faces in processing interconnection
requests is whether connecting new sources will require
upgrades to the grid and, if so, how upgrade costs will be
allocated among generators seeking to connect. Hecate
challenges a single aspect of FERC’s orders: Its approval of
PJM’s proposal to help clear its backlog of pending
interconnection requests by expediting requests that are
projected to be assessed upgrade costs of $5 million or less.
FERC defends its orders on the merits, but it first contests
Hecate’s standing to challenge the orders in court. We hold
that Hecate lacks Article III standing to challenge the $5
million cap, and therefore dismiss its petitions for review.
Hecate’s injury is not redressable because the relief it requests
from this court—vacatur of FERC’s approval of PJM’s
comprehensive reform package—is unlikely to lead to the
expediting of its over-$5 million project.

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BACKGROUND
A.
Section 205 of the Federal Power Act requires electric
utilities’ rates and rules for transmitting electricity to be “just
and reasonable” and not “undu[ly] preferen[tial].” 16 U.S.C.
§ 824d(a), (b). Under Section 205 and the Federal Energy
Regulatory Commission’s (FERC or Commission)
implementing regulations, when a regional transmission
organization like PJM seeks to change any rates or rules, it
must file the proposed changes with the Commission. Id.
§ 824d(d); 18 C.F.R. § 35.34(j)(1)(iii). “FERC must accept
proposed rate changes filed under Section 205 so long as the
changes are just and reasonable” and not unduly
discriminatory. NRG Power Mktg., LLC v. FERC, 862 F.3d
108, 113 (D.C. Cir. 2017); 16 U.S.C. § 824d(a), (b).
In evaluating proposed rule changes under Section 205,
FERC plays “an essentially passive and reactive role.”
Advanced Energy Mgmt. All. v. FERC, 860 F.3d 656, 662 (D.C.
Cir. 2017) (internal quotation marks omitted). “FERC may
accept or reject the proposal,” but it may not “suggest
modifications that result in an entirely different rate design than
the utility’s original proposal or the utility’s prior rate scheme.”
NRG Power, 862 F.3d at 114-15 (internal quotation marks
omitted). The Commission may not propose modifications that
“und[o] the compromise that had been the basis for [the]
proposal” or “eviscerate[] the terms of the bargain” underlying
the original proposal. Id. at 116.
B.
PJM is a regional transmission organization—an
independent, non-profit, FERC-approved entity that manages
the electrical grid covering parts of 13 Mid-Atlantic and

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Midwestern states and the District of Columbia. See Advanced
Energy, 860 F.3d at 659. One of PJM’s responsibilities is to
facilitate the interconnection of new power sources to the grid.
See FPL Energy Marcus Hook, L.P. v. FERC, 430 F.3d 441,
443 (D.C. Cir. 2005). That process involves conducting
multiple studies to determine what network upgrades (if any)
are necessary to support the connection of new generators to
the grid, and how the costs of those required upgrades—which
“improve the network for the benefit of all users,” Exxon Mobil
Corp. v. FERC, 571 F.3d 1208, 1212-13 (D.C. Cir. 2009)—
should be allocated among the various generators seeking to
connect. See Marcus Hook, 430 F.3d at 443.
For decades, PJM has used a serial, “first-come, first-
served” model for acting on interconnection requests, in which
“[t]he submission of an interconnection request triggers a
review by [PJM] and holds the requestor’s place in the
interconnection queue” until PJM conducts the requisite
studies, allocates network upgrade costs, and provides the
generator with a proposed interconnection service agreement.
ESI Energy, LLC v. FERC, 892 F.3d 321, 325 (D.C. Cir. 2018).
In recent years, that serial, “first-come, first-served” model has
not kept up with the rising number of interconnection requests,
leading to delays in connecting new generators to the grid.
The current system’s rules incentivize project developers
to submit speculative and duplicative interconnection requests
that they often withdraw late in the study process. For
example, submitting an interconnection request is relatively
cheap, there are few requirements for a project to keep its place
in the queue, and projects may withdraw from the queue at any
time with minimal financial penalty. In fact, the vast majority
of interconnection requests are withdrawn before the requestor
signs a final interconnection service agreement: Of requests
submitted between January 2020 and February 2021, 80% were

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withdrawn during the review process. In addition, PJM
determines and assigns network upgrade costs based in part on
a project’s queue position relative to other requests. For
instance, if there is still enough excess capacity in the grid to
accommodate the connection of another generator, a project
submitted earlier in time might not have to pay for network
upgrades necessitated by the connection of generators farther
down in the queue. See Marcus Hook, 430 F.3d at 444.
Because of that, almost every withdrawal requires PJM to re-
study and potentially re-allocate network upgrade costs among
the projects that remain in the queue behind the withdrawn
project. Given large increases in the number of interconnection
requests in recent years, the rules countenancing such a grossly
inefficient cycle of withdrawals and restudies have hamstrung
PJM’s ability to timely connect new generators to the grid and
contributed to a backlog of 1,857 interconnection requests in
various stages of study.
To address those issues, PJM organized a two-and-a-half-
year process during which its stakeholders developed,
negotiated, and approved a comprehensive package of reforms
to PJM’s interconnection process. The proposed reforms—
approved by 87% of PJM’s Markets and Reliability Committee
and 90% of PJM’s Members Committee—are designed to
transition PJM to a cluster-based approach. Under that new
approach, all interconnection requests submitted during a
defined time period are grouped together for joint study and
cost allocation in one review cycle. By enabling a single study
and simultaneous cost allocation to all projects within a review
cycle, and by also limiting project modifications and
withdrawals to specific periods during the cycle, the cluster-
based approach eliminates the need for iterative, inefficient
restudies. Those changes allow PJM to perform a single
“retool” study of previously performed analyses at the end of
the cycle to account for all withdrawals during the cycle. The

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proposed reforms also aim to reduce the number of speculative
requests and late-stage withdrawals by imposing more
stringent requirements for projects to enter and remain in the
interconnection approval process.
The reform package also includes exhaustively negotiated
rules governing the transition from PJM’s legacy, serial
process to the new cluster-based approach. While most
stakeholders wanted their pending projects to remain under the
serial process, PJM sought to quickly transition to the cluster-
based process so it could more efficiently clear its large
backlog of requests. To balance those competing interests in
serial versus cluster-based consideration, the transition rules
temporarily preserve a serial “Expedited Process” open to
projects submitted between April 2018 and September 2020
whose network upgrade cost allocation is estimated at $5
million or less. Under the transition rules, PJM will first
serially consider and allocate costs to projects under the
Expedited Process. It will then study and act on all other
projects under the new cluster-based approach.
The $5 million cap for Expedited Process eligibility was a
“carefully negotiated term that active PJM stakeholders
debated extensively during the stakeholder process,” including
by “discuss[ing] alternative proposals for the transition
mechanism at great length” and “debat[ing] the impacts such
proposals would have on projects in the various queue
windows,” and on PJM’s ability to clear its backlog.
Comments in Support of Pine Gate Renewables, LLC and
Cypress Creek Renewables, LLC at 9 (J.A. 391). Indeed, of all
of the aspects of the proposed reforms, “the question of a
[t]ransition process and how it should be structured involved
the most compromise among stakeholders in order to achieve
the consensus that was reached on the overall reform package.”

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PJM Tariff Revisions for Interconnection Process Reform at 42
(J.A. 80).
C.
In June 2022, PJM filed its final package of proposed
reforms for the Commission’s approval under Section 205.
Hecate intervened, filing a “limited protest” to PJM’s proposed
reforms. Mot. to Intervene and Limited Protest of Hecate
Energy LLC at 1 (J.A. 295). Hecate was “generally very
supportive” of the reform package but asked the Commission
to reject the $5 million cap for eligibility in the Expedited
Process. Id. Hecate argued that the $5 million cutoff for
participation in the limited extension of project-specific, first-
to-file processing was both “arbitrary” and “unduly
discriminatory” because, it claimed, PJM failed to advance an
evidence-based, rational justification for distinguishing
between projects below and above its proposed $5 million cap.
Id. at 7-12 (J.A. 301-06).
The Commission approved PJM’s proposed package of
reforms, including the $5 million cap for inclusion in the
Expedited Process and cluster-based review for more
expensive projects and for projects submitted after September
2020. FERC denied Hecate’s request for rehearing. In both its
order accepting PJM’s reforms and its order explaining its
denial of Hecate’s rehearing request, the Commission
determined that PJM had reasonably justified the $5 million
cap in light of its experience that projects assigned network
upgrade costs of up to $5 million were simpler and quicker to
process than those assigned costs above $5 million.
Hecate petitioned for our review of both orders. We
granted PJM’s motion for leave to intervene in support of the
Commission.

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DISCUSSION
Hecate argues that the Commission acted arbitrarily and
capriciously in concluding that the $5 million cap was not
“unduly discriminatory” under Section 205. Specifically,
Hecate maintains that the Commission’s determination was not
supported by substantial evidence because PJM’s purported
experience was insufficient and that it was arbitrary and
capricious in its failure to consider alternative eligibility rules
for the Expedited Process that include projects above the $5
million cutoff. We do not reach the merits arguments because
Hecate lacks standing to raise them.
The “irreducible constitutional minimum” of standing has
three familiar parts: injury in fact, causation, and redressability.
Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The
party invoking federal court jurisdiction bears the burden of
establishing each of those elements. Id.
Hecate’s claimed injury-in-fact is the exclusion of at least
one of its projects from the Expedited Process. Hecate has five
projects pending in PJM’s queue that will be sorted into either
the Expedited Process or a cluster-based review cycle,
depending on each project’s estimated assigned network
upgrade costs. At least one of those projects has such assigned
costs of over $5 million and is therefore excluded from the
Expedited Process. According to Hecate, that exclusion will
cause it significant and expensive delays.
FERC argues that Hecate’s claimed injury is too
speculative to satisfy the injury-in-fact requirement because
one or more of its four other pending projects may be eligible
for the Expedited Process, which means that Hecate could
enjoy a net benefit from the Expedited Process eligibility rules
it challenges. We need not embrace the Commission’s net-

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benefit theory or determine whether Hecate has otherwise
alleged an injury-in-fact because, even if it has, it fails to
demonstrate that its claimed injury is redressable.
“Redressability examines whether the relief sought,
assuming that the court chooses to grant it, will likely alleviate
the particularized injury alleged by the plaintiff.” Fla.
Audubon Soc’y v. Bentsen, 94 F.3d 658, 663-64 (D.C. Cir.
1996) (en banc). As we have previously stated, “[t]he key word
is ‘likely.’” West v. Lynch, 845 F.3d 1228, 1235 (D.C. Cir.
2017) (quoting Lujan, 504 U.S. at 561). When, as in this case,
“a plaintiff’s asserted injury arises from the government’s
allegedly unlawful regulation (or lack of regulation) of
someone else”—here, PJM—“redressability . . . hinge[s] on
the response of the regulated (or regulable) third party to the
government action or inaction—and perhaps on the response of
others as well.” Lujan, 504 U.S. at 562. That makes it
“substantially more difficult to establish” redressability, as it
would depend on future choices by PJM, “whose exercise of
broad and legitimate discretion the courts cannot presume
either to control or to predict.” Id. (internal quotation marks
omitted). Indeed, we recently noted that redressability in cases
where “plaintiffs sue the government in order to change third-
party behavior” imposes “a significant barrier [to establishing
standing]—courts have routinely rejected suits for injunctive
relief that are directed against executive agencies but that seek
to change the behavior of third parties.” Johnson v. Becerra,
111 F.4th 1237, 1244 (D.C. Cir. 2024).
Such an injury is still redressable if the court’s action will
“amount to a significant increase in the likelihood that the
plaintiff w[ill] obtain relief that directly redresses the injury
suffered.” Utah v. Evans, 536 U.S. 452, 464 (2002). But the
record must “present[] substantial evidence of a causal
relationship between the government policy and the third-party

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conduct, leaving little doubt as to . . . the likelihood of redress.”
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930,
941 (D.C. Cir. 2004). If it is instead “just as plausible” that the
court’s action will not redress the plaintiff’s injury as that it
will, Article III’s redressability requirement is not met. Simon
v. E. Ky. Welfare Rights Org., 426 U.S. 26, 43-46 (1976). Put
otherwise, “standing theories that require guesswork as to how
independent decisionmakers will exercise their judgment” do
not suffice; “[r]ather than guesswork, [] plaintiffs must show
that the third-party [actor] will likely react in predictable ways
to the defendants’ conduct.” Murthy v. Missouri, 603 U.S. 43,
57-58 (2024) (internal quotation marks omitted).
For instance, in Simon v. Eastern Kentucky Welfare Rights
Organization, the plaintiffs challenged an IRS revenue ruling
rescinding the requirement that hospitals offer free healthcare
to low-income populations in order to receive favorable tax
treatment. 426 U.S. at 28-32. The plaintiffs, who lived below
the poverty line, alleged that the ruling injured them by
depriving them of free hospital services. Id. at 32-33, 40-41.
As relevant to redressability, they contended that ordering the
IRS to rescind the revenue ruling would cause the hospitals to
resume providing the free services in order to retain the
favorable tax treatment attending nonprofit status. Id. at 42-43.
The Court rejected that argument, holding that the plaintiffs
failed to demonstrate redressability because it was “just as
plausible” that, if the Court invalidated the revenue ruling, the
hospitals would “elect to forgo favorable tax treatment to avoid
the undetermined financial drain of an increase in the level of
uncompensated services.” Id. at 43. The plaintiffs accordingly
failed to allege a “substantial likelihood” that their injury
would be redressed by “victory in this suit.” Id. at 45-46.
Utah v. Evans further demonstrates the tight causal
connection between the plaintiff’s requested relief and the

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redress of their asserted injury necessary to establish standing.
There, Utah complained that the Census Bureau’s unlawful use
of a particular method of imputing census data had overcounted
North Carolina’s population relative to Utah’s, causing Utah to
lose a House seat to North Carolina. Evans, 536 U.S. at 457-
59. Utah sought an injunction ordering the census officials to
recalculate the population numbers and recertify the official
census result—relief that the courts could order. Id. at 459-61.
But Utah’s injury would be redressed only if the President then
submitted those recertified numbers to Congress and the Clerk
of the House of Representatives sent certificates to each state
specifying the number of representatives to which they were
entitled. Id. at 461. The Court held that Utah’s injury was
redressable because it was “substantially likely that the
President and other executive and congressional officials”
would carry out the “purely mechanical” “calculations and
consequent apportionment-related steps” necessary to convert
the court-ordered census report into an additional
representative for Utah. Id. at 463-64 (internal quotation marks
omitted).
Utah’s injury was redressable in Evans because, even
though the court’s action would not directly redress the injury,
it would very likely spur the next steps necessary to redress it.
By contrast, in Simon the plaintiffs’ injury was not redressable
because, given the various considerations in play, the hospitals
were just as likely to continue to deny plaintiffs free services
as they were to reverse course in response to a court order
changing the tax implications of the denial. 426 U.S. at 43-44.
Hecate’s situation is akin to that of the plaintiffs in Simon.
Hecate asks us to vacate FERC’s order approving the $5
million cap as arbitrary and capricious. But Hecate does not
show that our doing so would make it likely—let alone
“substantially likely,” Evans, 536 U.S. at 464—that its

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requested relief would spur PJM to take the additional steps
necessary to include Hecate’s project in its Expedited Process.
Rather, it is “just as plausible” (and in fact more plausible) that
its injury would not be redressed by its requested relief.
Hecate’s injury would be redressed only if, after our
vacatur, PJM re-submitted its complete package of proposed
reforms with a change to the Expedited Process eligibility rules
to include at least some projects, including Hecate’s, assessed
over $5 million in network upgrade costs. But, given PJM’s
aims, incentives, and independent decisionmaking authority,
that outcome is particularly unlikely. Both the Commission
and this court lack the authority in response to Hecate’s claim
to direct PJM to make that change. And PJM would have a
wide array of options for curing the alleged defect with the $5
million cap that do not involve—and are more conducive to its
goals than—expediting projects assessed over $5 million in
network upgrade costs.
Recall that in a Section 205 proceeding, “the Commission
undertakes an essentially passive and reactive role and restricts
itself to evaluating the confined proposal.” Advanced Energy,
860 F.3d at 662 (internal quotation marks omitted). “FERC
may accept or reject the proposal,” and it can suggest “minor”
modifications to the proposal. NRG Power, 862 F.3d at 114-
15. But it cannot insist on or even suggest modifications that
“result in an entirely different rate design than the utility’s
original proposal,” including modifications that “und[o] the
compromise that had been the basis for PJM’s proposal” and
“eviscerate[] the terms of the bargain” underlying the original
proposal. Id. at 114-16 (internal quotation marks omitted).
The eligibility rules for the Expedited Process, including
the $5 million cap, were the subject of extensive negotiation
and compromise among PJM’s stakeholders. Under the

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strictures described in NRG Power, the Commission thus
cannot modify PJM’s proposal by removing the $5 million cap,
as Hecate concedes. If we were to vacate FERC’s orders, the
Commission would have no choice but to reject PJM’s entire
package of reforms, at which point PJM would be free to re-
submit a new comprehensive proposal to attempt to cure the
putative arbitrariness of the challenged $5 million cap.
There are a number of ways PJM could accomplish that
goal. If we were to hold that PJM failed to support the $5
million cap with substantial evidence, PJM might bolster its
evidentiary basis for using $5 million as the dividing line
between relatively simple, quick-to-process projects and more
complex, time-intensive ones. Evidence that the cap is a non-
arbitrary basis of distinction would cure the claimed defect
because “mere differential treatment of two entities” does not
violate Section 205; rather, it amounts to undue discrimination
“only if the entities are similarly situated, such that there is no
reason for the difference.” City of Lincoln v. FERC, 89 F.4th
926, 935 (D.C. Cir. 2024) (internal quotation marks omitted).
But such a fix would do nothing to afford Hecate the expedited
treatment it seeks. Alternatively, if we held that the
Commission unjustifiably failed to consider alternatives to the
$5 million cutoff by which PJM could accomplish its goals
while expediting projects like Hecate’s, PJM might
demonstrate on remand why those alternatives do not
accomplish the necessary objectives advanced by the $5
million rule. Again, that fix would not redress Hecate’s injury.
Taking a different tack, PJM could abandon the $5 million
cap and select an entirely different rule governing eligibility for
the Expedited Process with no guarantee that the new rule
would encompass Hecate’s project. For instance, PJM might
expedite only projects submitted before a certain date or
pending for a certain duration. Or, as the Commission noted in

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its Rehearing Order, PJM could abandon the Expedited Process
entirely. That would eliminate the $5 million limit Hecate
views as arbitrary, but would provide no expedited treatment
to any project, including Hecate’s.
As these examples illustrate, a court order invalidating the
$5 million cap leaves PJM with myriad options that would
resolve the defect without redressing Hecate’s asserted injury
of exclusion from the Expedited Process. Thus, while it is
possible that vacatur of the Commission’s order would
expedite Hecate’s project, that outcome cannot fairly be
described as “likely.”
Indeed, it is particularly unlikely that PJM would adopt a
rule allowing projects with over $5 million in assessed network
upgrade costs to participate in the Expedited Process. In its
filing requesting FERC’s acceptance of its proposed tariff
reforms, PJM explained that expanding access to the Expedited
Process “would not only be contrary to the results of the
stakeholder process, but would delay implementation of PJM’s
Cycle process, and harm PJM’s efforts to clear its
interconnection backlog.” PJM Tariff Revisions for
Interconnection Process Reform at 42 (J.A. 80). In light of the
critical necessity of clearing its backlog and quickly
transitioning to a cycle-based process, PJM is unlikely to
choose to expand the Expedited Process as Hecate urges.
The likelihood that PJM would expand the Expedited
Process is further diminished given that PJM’s stakeholders
earlier expressly rejected at least one such proposal. During
the stakeholder process, Hecate proposed modifying the $5
million cap so that projects assessed network upgrade costs
over $5 million would be allowed to enter the Expedited
Process so long as the developer posted security covering the
costs allocated to that project. Only 30% of stakeholders

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expressed support for that proposal, which is far short of the
required two-thirds majority needed for approval. While
changed circumstances could conceivably affect the degree of
stakeholder support, that failed vote demonstrates
stakeholders’ negative reaction to the proposed expansion of
the Expedited Process in a way that would include Hecate’s
project.
In sum, if we were to vacate the Commission’s orders
under either of Hecate’s theories, PJM would have multiple
avenues for correcting the deficiency that would be more
conducive to its goals than modifying the Expedited Process
eligibility rules in a way that expedites its review of Hecate’s
over-$5 million project. It is thus not only “just as plausible,”
but in fact more plausible that PJM would respond to Hecate’s
“victory in this suit” with a new package of proposed reforms
that would not provide Hecate the expediting it seeks. Simon,
426 U.S. at 43-46. Accordingly, Hecate has failed to
demonstrate that its injury is redressable.
This result accords with our many other decisions applying
Simon, in which we have held that plaintiffs fail to establish
redressability when their injury is caused by “third parties who
took actions because of allegedly unlawful agency decisions,
but who would have no compelling reason to reverse those
actions were the decisions held unlawful by a court.” Bennett
v. Donovan, 703 F.3d 582, 587 (D.C. Cir. 2013). For instance,
in National Wrestling Coaches Ass’n v. Department of
Education—“[o]ur seminal case discussing standing in the
context of a regulated third party,” Bennett, 703 F.3d at 587—
several men’s wrestling organizations challenged Title IX
guidance documents issued by the Department of Education,
claiming they incentivized schools to eliminate men’s
wrestling programs. Nat’l Wrestling, 366 F.3d at 934-36. We
held that revoking the guidance would not redress the

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plaintiffs’ asserted injury because schools had independent
reasons “unrelated to the challenged legal requirements” not to
reinstate men’s wrestling teams, regardless of the challenged
guidance. Id. at 939-40. Similarly, in Renal Physicians Ass’n
v. U.S. Department of Health & Human Services, 489 F.3d
1267 (D.C. Cir. 2007), a medical association challenged an
agency regulation that allegedly caused clinics to reduce the
wages of the association’s members. Id. at 1271. We held that
its injury was not redressable because, even if the regulation
were invalidated, the clinics would have independent economic
reasons to continue paying the reduced wages. Id. at 1276-78.
And in Johnson v. Becerra, Medicare beneficiaries with
chronic illnesses challenged agency policies that allegedly
facilitated home health companies’ denial of services to
chronically ill Medicare patients. 111 F.4th at 1242-43. We
held that the lack of service was not redressable because the
home health companies had “many economic and practical
reasons” to continue denying service regardless of the agency’s
policies. Id. at 1245-46.
Hecate’s situation presents a slight variation on these
cases, in that respondent FERC did not require PJM to impose
the challenged $5 million cap on expedited review; PJM did so
of its own accord, subject to FERC approval. But this case
shares the key characteristic fatal to redressability that
reversing the agency’s action will not remove PJM’s incentive
or ability to continue inflicting the asserted injury—here,
excluding Hecate’s project from expedited review. That
scenario makes it unlikely, in the absence of other indications,
that reversing the agency’s action will redress the claimant’s
injury. Here, for instance, for all the reasons discussed above,
even if we were to invalidate FERC’s approval of the $5
million cap as arbitrary and capricious, PJM would have other,
independent reasons and means to exclude Hecate’s project

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from expedited review, making it unlikely that vacating the
Commission’s orders would redress Hecate’s injury.
Importantly, Hecate does not suggest—nor do we see how
it could—that its injury stems from the Commission’s failure
to follow proper procedures, and that it is thus entitled to
establish redressability under the relaxed standard that
recognizes standing based on procedural injuries without the
claimant “having to show that proper procedures would have
caused the agency to take a different substantive action.” Renal
Physicians, 489 F.3d at 1278-79. Nor does Hecate contend that
the allegedly arbitrary exclusion of its project from the
Expedited Process inflicts a stigmatic, “noneconomic” injury
by signaling that Hecate is a member of an “innately inferior”
group of “less worthy participants in the political community,”
such that simply eliminating the Expedited Process would
redress its injury. Heckler v. Mathews, 465 U.S. 728, 739
(1984) (internal quotation marks omitted). Rather, Hecate
asserts a run-of-the-mill substantive economic injury that must
meet the ordinary standards for redressability, which require
Hecate to show that the relief sought will “likely alleviate” its
asserted injury. Fla. Audubon Soc’y, 94 F.3d at 663-64.
Hecate contends that, under our decision in Orangeburg v.
FERC, 862 F.3d 1071 (D.C. Cir. 2017), it has shown
redressability insofar as an order from this court invalidating
the $5 million cap would “diminish the obstacles” preventing
it from gaining access to the Expedited Process. Id. at 1084.
But, as we have explained, the mere “possibility that
[petitioners] may have ‘better odds’ of [obtaining] their desired
[relief] plainly falls far short of the mark.” Nat’l Wrestling,
366 F.3d at 942. Orangeburg is not to the contrary. There,
North Carolina power supplier Duke Energy agreed to the
interstate sale of electricity to the city of Orangeburg, South
Carolina at cheap, “native load” rates until a North Carolina

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state agency enforced a state-regulatory condition on Duke—
imposed as part of a merger agreement with another utility
years earlier—that limited its native-load pricing to customers
that agency approved. Orangeburg, 862 F.3d at 1074-76.
Once the state agency denied approval to Duke’s proposed
contract for sale into South Carolina and decided to treat Duke
as receiving phantom income from Orangeburg under state law
(effectively suppressing the price Duke could charge its in-state
customers), Duke backed out of the deal. Id. Orangeburg
challenged FERC’s approval of a later merger agreement that
imposed the state agency’s same pricing constraint on Duke,
which in Orangeburg’s view amounted to interstate wholesale
rate regulation preempted by the Federal Power Act. Id. at
1076-77.
We held that Orangeburg’s injury was redressable because
this court’s conclusion that the later merger agreement
“enact[ed] a regime in which [the North Carolina state agency]
[wa]s empowered to act as a gatekeeper for interstate wholesale
power transactions[] in violation of [federal law]” would
remove the primary obstacle to Orangeburg’s ability to buy
cheap power from Duke. Id. at 1083. “Such a determination”
would make it “likely” (even if not certain) that Duke would
again agree to sell to Orangeburg at native-load prices. Id. at
1084.
Granted, like PJM, the state agency in Orangeburg also
had various options to choose from in reacting to this court’s
judgment that vacated FERC’s approval of Duke’s later merger
agreement. Because the state agency was not directly bound
by Orangeburg, it might have persisted in enforcing its
regulatory ascription of phantom income to Duke under the
earlier merger deal. After all, “[i]t is a federal court’s
judgment, not its opinion, that remedies an injury; thus it is the
judgment, not the opinion, that demonstrates redressability.”

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Haaland v. Brackeen, 599 U.S. 255, 294 (2023). And FERC
had “repeatedly sidestepped the legal issues” and “declined to
preempt [the state agency’s] alleged gatekeeping regime” as
part of a “pattern of acquiescence,” so it was perhaps fair to
assume that FERC would continue to tolerate some state
encroachment on its jurisdiction going forward. Orangeburg,
862 F.3d at 1074, 1081.
However, Orangeburg is distinguishable from this case. It
would be far easier for PJM to bolster its evidence for the $5
million cap or explain more thoroughly why it rejected
Hecate’s proposed alternatives than it would have been for the
state agency in Orangeburg to somehow legitimate a scheme
that impinged on FERC’s exclusive jurisdiction. As we
explained in Orangeburg, the state agency was “unlikely to
maintain its policy” once it was “[f]aced with [] a decision from
a federal court” declaring that policy unlawful. Id. at 1084.
Even if the state agency did so with regard to Duke’s earlier
merger agreement, Orangeburg could contract with a different
North Carolina utility to obtain cheap energy and point to
Orangeburg if the state agency sought to block that deal.
Here, by contrast, there is no clear path from an order
invalidating the $5 million cap to the likely inclusion of
Hecate’s projects in the Expedited Process. To the contrary, as
we have explained, it is significantly more likely that PJM
would remedy the defect Hecate claims via a modification that
would not expedite the Hecate project at issue. Such a remote
likelihood of redress defeats Hecate’s claimed standing.
* * *
For the foregoing reasons, the petitions for review are
dismissed for lack of standing.
So ordered.

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