Industrial Energy Consumers of America v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2024 Decided January 14, 2025
No. 23-1334
INDUSTRIAL ENERGY CONSUMERS OF AMERICA, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ITC MIDWEST LLC,
INTERVENOR
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Kenneth R. Stark argued the cause for petitioners. With
him on the briefs were Robert A. Weishaar, Jr., James
Harrison Holt, and Katherine Ann Wade.
Jason T. Perkins, 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.

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Aaron M. Streett argued the cause for intervenor ITC
Midwest LLC in support of respondent. With him on the brief
were Jay Ryan, J. Mark Little, and Christopher E. Tutunjian.
Before: HENDERSON and PAN, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
Concurring opinion by Circuit Judge HENDERSON.
ROGERS, Senior Circuit Judge: Petitioners seek review of
the grant of an abandonment incentive to ITC Midwest, LLC
(“ITC”). The Federal Energy Regulatory Commission
approved the first of two stages of the rate incentive in the event
a planned transmission project is abandoned for reasons
beyond ITC’s control. Because petitioners fail to show
imminent injury as a result of this action, they lack Article III
standing and the court must dismiss the petition for lack of
jurisdiction.
I.
To induce new investment in energy infrastructure,
Congress enacted the Energy Policy Act of 2005, which
amended the Federal Power Act (“FPA”) and required the
Commission to adopt rules for “incentive-based . . . rate
treatments for the transmission of electric energy.” 16 U.S.C.
§ 824s(a). In 2006 the Commission adopted Order No. 679,
which establishes eight categories of incentives for public
utilities. Promoting Transmission Inv. Through Pricing
Reform, Order No. 679, 116 FERC ¶ 61,057 at PP 76–77, 163–
67 (2006) (“Order 679”), on reh’g, Order No. 679-A, 117
FERC ¶ 61,345 (2006) (“Order 679-A”). To qualify for an
incentive, the utility first must show (1) “the facilities for which

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it seeks incentives either ensure reliability or reduce the cost of
delivered power by reducing transmission congestion,” (2)
there is a nexus between the total package of incentives and the
utility’s ability to address the risks or challenges it faces, and
(3) “the resulting rates are just and reasonable.” Order 679 at
P 76; Order 679-A at P 27.
One incentive is the abandonment incentive that allows a
utility to recover 100% of its prudently incurred costs in
transmission rates for projects abandoned due to factors beyond
the utility’s control. Order 679 at PP 155, 163, 166; San Diego
Gas & Elec. Co. v. FERC, 913 F.3d 127, 132 (D.C. Cir. 2019).
A utility must first obtain a declaratory order from the
Commission establishing its eligibility for the incentive and
then obtain the Commission’s approval for a specific rate
increase to recover those costs “prudently incurred . . . after the
effective date of the order.” San Diego Gas & Elec., 913 F.3d
at 133, 137–39. Only then may a utility increase its rates.
“[T]o ensure that rate cases are manageable, the Commission
presumes that all expenditures are prudent so the utility need
not justify in its case-in-chief the prudence of all of its costs.”
Potomac-Appalachian Transmission Highline, LLC, 158
FERC ¶ 61,050 at P 100 (2017). Of course, the incentives must
be “tailored to address the demonstrable risks or challenges
faced by the applicant.” 18 C.F.R. § 35.35(d). The
Commission proceeds by case-by-case adjudication. Order
679 at PP 43, 164; Promoting Transmission Inv. Through
Pricing Reform, Policy Statement, 141 FERC ¶ 61,129 at
PP 6–10 (2012) (“Policy Statement”).
ITC submitted a request for an abandonment incentive on
May 30, 2023, for the Iowa portion of the Skunk River-Ipava
345 kV Long-Range Transmission Plan Project. Request 1; see
16 U.S.C. § 824d; Order 679; Policy Statement. This is one
portion of a transmission project crossing several states that

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was approved by Midcontinent Independent System Operator,
Inc. (“MISO”). Pursuant to its open access tariff and the Iowa
Right of First Refusal statute (“Iowa ROFR”), MISO assigned
the Iowa portion of the project (“Project”) to ITC. ITC is to
own and construct the Project, which is to become operational
in 2029.
In requesting an abandonment incentive, ITC stated that
the Project would satisfy each of Order 679’s requirements.
The Project would “enhance reliability” and “reduce
congestion” because it is one of several transmission projects
that together would “address 600 thermal violations associated
with 77 unique monitored facilities.” Request 4–5. It also
would “[i]ncrease transfer capability” and “[e]nhance the
resilience of the grid” while “[r]educ[ing] loading.” Id. at 5.
Further, the Project “satisfies the Commission’s nexus test
because the challenges faced . . . are significant and the
Abandonment Incentive sought is appropriately tailored to
address” regulatory and environmental, financial, and
construction risks. Id. at 6; see Test. of Jeffrey W. Eddy, Dir.
of Plan., ITC Holdings Corp. 8–11 (May 30, 2023). And ITC
stated that its rates “will be just and reasonable” because it
cannot collect abandonment costs until it makes a filing
“demonstrating the prudence of the costs for which recovery is
sought.” Request 8.
Petitioners are the Resale Power Group of Iowa, the
Industrial Energy Consumers of America, the Coalition of
MISO Transmission Customers, and the Wisconsin Industrial
Energy Group. They are a collection of organizations whose
members purchase electricity at rates that could be affected by
the disputed incentive. They filed a protest opposing the
abandonment incentive on the ground that ITC’s ownership of
the Project was “uncertain” and likely “void” due to ongoing
litigation challenging the Iowa ROFR. Protest 11.

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On August 8, 2023, the Commission granted ITC’s request
for the abandonment incentive. Order on Transmission Rate
Incentive, ITC Midwest, LLC, 184 FERC ¶ 61,083 at P 43
(2023) (“Incentive Order”). Finding that the Project is entitled
to the rebuttable presumption that it will “enhance reliability
and/or reduce congestion,” id. at P 16, the Commission
concluded that ITC had “demonstrated that the Project faces
certain regulatory, environmental, and siting risks that are
beyond ITC[’s] control . . . and that approval of
the . . . Incentive will address those risks,” id. at P 43. The
Commission rejected petitioners’ protest that ongoing state
court litigation called into question ITC’s ability to proceed
with the Project “free and clear of any legal impediments.”
Protest 12. The litigation challenged the Iowa ROFR under
which MISO assigned the Project to ITC. The Commission,
citing its precedent, stated that “[t]he presence of regulatory or
litigation uncertainty does not preclude . . . granting” an
abandonment incentive in an adjudication. Incentive Order at
P 44 & n.77 (citing Order 679 at PP 163–65; NextEra Energy
Transmission Sw., LLC, 180 FERC ¶ 61,032 at PP 8, 18–19
(2022); Pioneer Transmission, LLC, 126 FERC ¶ 61,281 at
P 49 (2009), order on reh’g & clarification, 130 FERC
¶ 61,044 at P 58 (2010)). The Commission also stated that it
“will address the prudence of any costs incurred if and when
ITC . . . makes a filing under section 205 seeking recovery of
such costs, and . . . any . . . interested person . . . is free to
challenge the prudence of such costs at that time.” Id. at P 45.
One Commissioner dissented on the ground that the Iowa
ROFR might be “struck down,” rendering assignment of the
Project to ITC uncertain and ITC’s incentive request
premature. Incentive Order at P 1 (Christie, Comm’r,
dissenting).

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Petitioners sought rehearing, principally on the ground that
the Commission did not “engage the implications of granting”
ITC’s request during the pendency of litigation challenging the
Iowa ROFR. Reh’g Req. 9–20. Rehearing was denied. ITC
Midwest, LLC, 185 FERC ¶ 62,013 (2023); 16 U.S.C.
§ 825l(a). On November 16, 2023, the Commission addressed
the arguments raised on rehearing and again stated that
granting the abandonment incentive despite the uncertainty
surrounding the Iowa ROFR is consistent with Commission
precedent. ITC Midwest, LLC, 185 FERC ¶ 61,123 at P 37
(2023) (“Rehearing Order”) (citing MISO, 184 FERC ¶ 61,040
at PP 16, 20 (2023); NextEra, 180 FERC ¶ 61,032 at P 8).
Petitioners seek review of the Incentive Order, the denial
of rehearing, and the Rehearing Order.
II.
As a threshold matter, the court must determine whether it
has jurisdiction to consider petitioners’ challenges to the
Commission’s stage one approval of ITC’s request for an
abandonment incentive.
“To establish Article III standing, an injury must be
‘concrete, particularized, and actual or imminent; fairly
traceable to the challenged action; and redressable by a
favorable ruling.’” Clapper v. Amnesty Int’l USA, 568 U.S.
398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 149 (2010)). “Allegations of possible
future injury do not satisfy the requirements of Art. III.”
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990). And “a mere
interest in [the Commission’s] legal reasoning and the
possibility of a ‘collateral estoppel effect’” in a future
proceeding do not “confer a cognizable injury in fact.” Exxon
Mobil Corp. v. FERC, 571 F.3d 1208, 1219 (D.C. Cir. 2009)

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(quoting Ala. Mun. Distribs. Grp. v. FERC, 312 F.3d 470, 473–
74 (D.C. Cir. 2002)).
The Commission has addressed the first of its two-stage
procedure for an abandonment incentive in the Incentive
Order. On rehearing, the Commission repeated that its
approval “is not a determination as to the prudence of any costs
that ITC . . . actually incurs,” and that it “will assess the
prudence of . . . expenditures, including any challenges
thereto, if and when ITC . . . makes a filing under section 205
seeking recovery of such costs.” Rehearing Order at P 36; see
Incentive Order at P 45. No petitioner has demonstrated
imminent injury from the challenged orders. See Mountain
States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C.
Cir. 1996) (citations omitted).
First, petitioners maintain that their standing is “self-
evident,” Pet’r Br. 21, by reason of being “aggrieved” persons
under the FPA, 16 U.S.C. § 825l(b), as a result of the
Commission’s determination that ITC is eligible for an
abandonment incentive for the Project. Reply Br. 10. The
court explained in Kansas Corporation Commission v. FERC,
881 F.3d 924, 929 (D.C. Cir. 2018), that a party “must
affirmatively demonstrate how it is adversely affected by [the
Commission]’s orders.” Petitioners claim injury from higher
rates that ITC may one day charge consumers if it abandons the
Project. Absent any incentive, ITC could recover through
higher rates 50% of its prudently incurred costs if it abandoned
the Project. See New Eng. Power Co., Op. No. 295, 42 FERC
¶ 61,016 (1988), on reh’g, Op. No. 295-A, 43 FERC ¶ 61,285
(1988). With an abandonment incentive, ITC may recover
100% of its prudently incurred costs, exposing petitioners to
the risk of higher future rates. Petitioners point to no imminent
or concrete costs any one of them now confronts as a result of
the Incentive Order, and at stage two petitioners will have an

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opportunity to challenge the prudence of costs ITC seeks to
recover. Petitioners misread the court’s decision in San Diego
Gas & Electric to support standing even in the face of
uncertainty about the abandonment of a project or associated
costs. Reply Br. 11–12. In San Diego Gas & Electric,
however, a utility disputed “the scope of the” incentive it
received, which had an immediate effect on its present costs.
913 F.3d at 130, 136. Here, petitioners challenge the grant of
an incentive to a third party that has no immediate impact on
them as consumers. Petitioners’ other authorities do not
advance their position. Both MISO Transmission Owners v.
FERC, 45 F.4th 248, 252–56 (D.C. Cir. 2022), and Delaware
Division of the Public Advocate v. FERC, 3 F.4th 461, 463
(D.C. Cir. 2021), involved concrete, imminent harms because
of, respectively, overcharges on rates and revisions to a
capacity market auction mechanism used at yearly auctions.
Second, petitioners maintain that they are aggrieved under
the FPA because the Commission “insufficiently examined”
the facts set forth in ITC’s request for an abandonment
incentive. Reply Br. 11–12. Specifically, they maintain that
that the Commission did not “practically account for the impact
of the Iowa ROFR Law litigation,” and failed to “specify any
risks in any degree of detail that are uniquely faced by the
Project.” Pet’r Br. 31, 44–45. A party only claiming an interest
in proper application of the law lacks standing absent a
showing that it is “more directly and tangibly
benefit[ed] . . . than . . . the public.” Kan. Corp., 881 F.3d at
929–30 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 573–
74 (1992)). Petitioners make no such showing as a result of the
challenged orders.
Third, petitioners maintain that the Commission’s
approval of ITC’s request determines “the terms under which a
claim may or may not be filed” in the future. Reply Br. 10. So,

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they “are now precluded in any future” Section 205 proceeding
from arguing that the factual evidence on which ITC based its
application did not warrant granting an incentive. Id. at 12.
Further, they claim, “the Commission’s determination of the
applicant’s eligibility and corresponding decision to increase
prudently-incurred abandoned plant costs eligible for recovery
to 100% is also final and will not be the subject of, and cannot
be cured in, any future rate proceeding.” Id. at 4; see Order 679
at P 78. An interest in the collateral estoppel effect of the
Incentive Order on future rates that petitioners may pay does
not suffice to establish Article III standing. See Exxon Mobil,
571 F.3d at 1219; Kan. Corp., 881 F.3d at 931.
To the extent petitioners maintain that the challenged
orders “prejudged the prudency of ITC[’s] incurrence of
Project costs,” and “foreclosed the ability to argue that ‘none
of those costs were prudently incurred,’” Pet’r Br. 39 (quoting
Reh’g Req. 13–14), they ignore the record. The Commission
repeatedly stated that it was not prejudging the prudence of
costs incurred by ITC. Incentive Order at P 45; Rehearing
Order at P 36. Petitioners view the prudence standard to be
“highly deferential toward transmission owners.” Pet’r Br. 39.
At stage two petitioners need only “create[] serious doubt as to
the prudence of an expenditure” for which ITC seeks 100%
recovery in its rates. Incentive Order at P 45 n.79 (quoting
Potomac-Appalachian Transmission Highline, 158 FERC
¶ 61,050 at P 100). The burden then shifts to ITC to “dispel[]
these doubts and prov[e] the questioned expenditure to have
been prudent.” Potomac-Appalachian Transmission Highline,
158 FERC ¶ 61,050 at P 101 (quoting Anaheim, Riverside,
Banning, Colton, & Azusa, Cal. v. FERC, 669 F.2d 799, 809
(D.C. Cir. 1981)). Indeed, in seeking rehearing petitioners
acknowledged that the Commission “could reasonably find”
that any development and construction expenses after the
August 8, 2023 Incentive Order, were imprudent because

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incurred after the Iowa Supreme Court had enjoined
enforcement of the Iowa ROFR. Reh’g Req. 12.
Finally, petitioners fail to demonstrate that they will ever
suffer any injury from ITC’s award of an abandonment
incentive if the Project is constructed as ITC maintains through
counsel that it intends to do. Oral Arg. 55:09–55:24. Instead,
ITC suggests, petitioners offer a speculative, attenuated chain
of events. See ITC Intervnr. Br. 16–18. For their injury to
occur, not only would the Iowa Supreme Court need to affirm
a permanent and retroactive Iowa ROFR injunction, MISO
would need to open competitive bidding for the Project, and
ITC would need to lose the bid, invoke the abandonment
incentive, and demonstrate to the Commission its costs were
prudent and the resulting rates are just and reasonable and not
unduly discriminatory, 16 U.S.C. §824s(d). A “highly
attenuated chain of possibilities” predicated on “guesswork as
to how independent decisionmakers will exercise their
judgment” does not establish Article III standing. Clapper, 568
U.S. 410, 413.
Accordingly, because no petitioner has shown an
imminent injury in fact as a result of the challenged orders,
petitioners lack Article III standing and the court dismisses the
petition for lack of jurisdiction.

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KAREN LE C RAFT HENDERSON , Circuit Judge, concurring:
I agree with the Court’s opinion in full. I write separately to
question the continuing vitality of two doctrines teed up by this
case: ripeness and associational standing.
I.
In this appeal, the Commission adopted the confusing
position that Petitioners have standing but that their claims are
nevertheless unripe. In FERC’s view, its initial determination
to award ITC Midwest an abandonment incentive has existing
legal consequences sufficient to support Petitioners’ Article III
standing. But because Petitioners’ concerns relate solely to the
step two recovery decision—a decision that may occur only in
a future proceeding based on facts not yet gathered—the
Commission argues that we should “defer[]” resolution of this
case “[a]s a prudential matter” of ripeness. Red Br. 29.
I believe ripeness is a solution in search of a problem and
a needlessly muddied area of justiciability. The Supreme Court
has explained that ripeness is “drawn both from Article III . . .
and from prudential reasons for refusing to exercise
jurisdiction.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538
U.S. 803, 808 (2003) (quoting Reno v. Cath. Soc. Servs., Inc.,
509 U.S. 43, 57 n.18 (1993)). Insofar as ripeness traces its
lineage to Article III, it has become absorbed by standing.
Insofar as ripeness rests on prudential considerations, it
infringes on our constitutional duty to adjudicate a proper case
or controversy.
The ripeness inquiry centers on whether a case is ready for
adjudication and is designed to oust claims that are “contingent
[on] future events that may not occur as anticipated, or indeed
may not occur at all.” Texas v. United States, 523 U.S. 296,
300 (1988). Courts apply a two-part ripeness test that evaluates
(1) “the fitness of the issues for judicial decision” and (2) “the
hardship to the parties” of withholding review. Abbott Labs. v.

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Gardner, 387 U.S. 136, 149 (1967); see N. Ind. Pub. Serv. Co.
v. FERC, 954 F.2d 736, 738 (D.C. Cir. 1992) (applying Abbott
Labs to review of FERC decision making). Ripeness helps
ensure that courts do not expend their limited resources
resolving “premature[]” and “abstract disagreements.” Nat’l
Treasury Emps. Union v. United States, 101 F.3d 1423, 1431
(D.C. Cir. 1996). The paradigmatic unripe case is one that
challenges a preliminary agency policy that has not been—and
may never be—enforced against the named plaintiff. See, e.g.,
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 386 (1999).
Article III standing, by contrast, asks whether a case pairs
a proper plaintiff with a proper defendant. To establish
standing, a plaintiff must have “(1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a favorable
judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016). “To establish injury in fact, a plaintiff must show that
he or she suffered ‘an invasion of a legally protected interest’
that is ‘concrete and particularized’ and ‘actual or imminent,
not conjectural or hypothetical.’” Id. at 339 (quoting Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992)). Injury in fact
ensures that the plaintiff has a sufficient “personal stake” in the
outcome of the litigation. TransUnion LLC v. Ramirez, 594
U.S. 413, 423 (2021) (quotations omitted). The paradigmatic
uninjured plaintiff is one whose only claim is an abstract
interest in seeing that other parties follow the law. See, e.g.,
Fed. Election Comm’n v. Akins, 524 U.S. 11, 23–24 (1998).
First, ripeness and standing focus on two different issues:
ripeness asks whether the suit is brought at a proper time and
standing asks whether the named plaintiff is a proper party to
sue. The latter goes to the “who”; the former goes to the
“when.” But if the plaintiff’s claim depends on a threatened
future injury, the two ask a combined question: is the plaintiff’s

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asserted injury too speculative? If so, the plaintiff lacks
standing because his feared injury is not “imminent,” Lujan,
504 U.S. at 564, nor “certainly impending.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013). That time-based
inquiry describes ripeness. See Blanchette v. Conn. Gen. Ins.
Corps., 419 U.S. 102, 140 (1974) (“[R]ipeness is peculiarly a
question of timing”).
The two inquiries focus judicial attention on the same
operative facts. Ripeness looks to whether a claim has
sufficiently “matured” to avoid resolution of cases “contingent
[on] future events.” 13B CHARLES A. W RIGHT , ARTHUR R.
M ILLER & EDWARD H. COOPER, F ED. PRAC. & PROC. J URIS .
§ 3532 (3d. ed.). Standing similarly looks to whether an
“attenuated chain of possibilities” renders a plaintiff’s injury
too “contingen[t].” Clapper, 568 U.S. at 410. The purposes
served by ripeness and standing also align. Ripeness aims to
“prevent the courts” from engaging in “premature
adjudication” of “administrative policies, and also protects the
agencies from judicial interferences until” necessary. Abbott
Labs., 387 U.S. at 148–49. So too with standing. See Clapper,
568 U.S. at 408 (“Article III standing[] is built on separation-
of-powers principles[ and] serves to prevent the judicial
process from being used to usurp the powers of the political
branches.”).
Indeed, once a plaintiff satisfies standing, any ripeness
concern becomes superfluous. We have long acknowledged
that the “ripe[ness inquiry] . . . overlaps with the ‘injury in fact’
facet of standing doctrine.” Navegar, Inc. v. United States, 103
F.3d 994, 998, (D.C. Cir. 1997); accord Nat’l Treasury Emps.
Union, 101 F.3d at 1427 (“Ripeness, while often spoken of as
a justiciability doctrine distinct from standing, in fact shares the
constitutional requirement of standing that an injury in fact be
certainly impending.”). More recently, this Court has

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explained that “[c]onstitutional ripeness is subsumed into the
Article III requirement of standing.” POET Biorefining, LLC
v. Env’t Prot. Agency, 970 F.3d 392, 403 (D.C. Cir. 2020)
(internal quotations omitted). And, as the Supreme Court has
noted, “[t]he justiciability problem that arises” in many cases
“can be described in terms of standing . . . or in terms of
ripeness.” MedImmune, Inc. v. Genetech, Inc., 549 U.S. 118,
128 n.8 (2007). Notably, the Supreme Court has not disposed
of a case purely on ripeness in years. Recently, it described
standing and ripeness as “[t]wo related doctrines of
justiciability—each originating in the case-or-controversy
requirement of Article III.” Trump v. New York, 592 U.S. 125,
131 (2020). The Court then went on to resolve Trump without
distinguishing between the two.
But ripeness purports to go further. In addition to its
constitutional underpinning, ripeness also has a “prudential”
component. Nat’l Park Hosp. Ass’n, 538 U.S. at 808. That is,
even if a plaintiff meets all Article III requirements, the court
may still decline to exercise its jurisdiction. Indeed, prudential
ripeness may even be raised sua sponte. See id. (“[I]n a case
raising only prudential concerns, the question of ripeness may
be considered on a court’s own motion.”). Yet as Chief Justice
John Marshall declared more than two centuries ago, federal
courts “have no more right to decline the exercise of a
jurisdiction which is given than to usurp that which is not
given.” Cohens v. Virginia, 19 U.S. (6 Wheat) 264, 404 (1821).
Absent narrowly confined exceptions, courts possess a
“virtually unflagging obligation . . . to exercise the jurisdiction
given them.” Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 817 (1976). And those finite exceptions
have been deemed “exceptional circumstances.” Id. at 813.
“Judicial resources” and “judicial restraint” concerns— used to
apply prudential ripeness, Devia v. Nuclear Regul. Comm’n,
492 F.3d 421, 424 (D.C. Cir. 2007)—do not square with the

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“strict [judicial] duty to exercise the jurisdiction that is
conferred upon [the judiciary] by Congress.” Quackenbush v.
Allstate Ins. Co., 517 U.S. 706, 716 (1996).
So how has the ripeness doctrine come to be viewed
otherwise? Ripeness began as an articulation of the remedial
discretion of a court sitting in equity but has evolved into a
limitation on the court’s power to adjudicate a proper case or
controversy. Richard H. Fallon, Jr., The Linkage Between
Justiciability and Remedies—And Their Connections to
Substantive Rights, 92 Va. L. Rev. 633, 635–37, 678–681
(2006). The Supreme Court first applied ripeness as a
prudential matter in Abbott Laboratories. 387 U.S. at 149.
There, several drug manufacturers sought pre-enforcement
review of FDA regulations requiring that any label or
advertisement listing a drug’s trade name also include the
generic name. Id. at 138–39. The Supreme Court set forth the
familiar two-factor test for ripeness, found those factors
satisfied and remanded to the lower courts to reach the merits.
Id. at 149, 156. Notably, the Court rooted its ripeness holding
in the inherently “discretionary” nature of “injunctive and
declaratory judgment remedies,” which helps explain why the
two-factor test uses traditional equitable factors such as
hardship to the parties. Id. at 148. Confined to a remedial
principle, prudential ripeness makes sense: an injunction is an
“extraordinary remedy,” Nken v. Holder, 556 U.S. 418, 428
(2009) (citation omitted), issued as “a matter of equitable
discretion.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7,
32 (2008). Courts have thus evinced “a greater concern about
ripeness” when “asked to give equitable remedies.” Samuel L.
Bray, The System of Equitable Remedies, 63 UCLA L. Rev.
530, 549 n.85 (2016).
In the last several decades, however, courts have been less
than meticulous in delineating between jurisdictional (i.e.

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constitutional) requirements and non-jurisdictional (i.e.
prudential) considerations. See, e.g., Allen v. Wright, 468 U.S.
737, 750–51 (1984) (speaking of “prudential” requirements
that “relate” and “overlap[]” with constitutional standing);
Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 471–72 (1982)
(acknowledging that the Court has not always drawn crisp lines
between constitutional and prudential considerations).
Ripeness has become part of the jurisdictional analysis and, as
the scope of injury in fact has expanded, has become largely
subsumed in constitutional standing. At the same time, courts
continue to speak of a separate prudential component to
ripeness. The result has been a prudential ripeness requirement
covered with a jurisdictional veneer. See Reno, 509 U.S. at 57
n.18 (holding that “prudential” ripeness can serve as a basis
“for refusing to exercise jurisdiction”).
In more recent years, the Supreme Court has begun to put
these doctrines back where they belong. In 2014, the Court
explained that so-called “prudential” standing does not
implicate a court’s subject-matter jurisdiction. Lexmark Int’l,
Inc. v. Static Control Components, Inc., 572 U.S. 118, 127–128
& n.4 (2014). And it noted that “declin[ing] to adjudicate . . .
claim[s] on grounds that are ‘prudential,’ rather than
constitutional . . . is in some tension with our recent
reaffirmation of the principle that a federal court’s obligation
to hear and decide cases within its jurisdiction is virtually
unflagging.” Id. at 125–26 (internal quotations omitted)
(quoting Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77
(2013)). That same term, the High Court acknowledged the
overlap between standing and constitutional ripeness and
contrasted both with the prudential ripeness requirement.
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 n.5, 167
(2014). The Court reemphasized the “tension” between
prudential jurisdictional barriers and its duty to hear a proper

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case or controversy but chose not to “resolve the continuing
vitality of the prudential ripeness doctrine in [that] case.” Id.
Unsurprisingly, the Supreme Court’s subsequent caselaw has
abandoned any reference to ripeness concerns distinct from the
injury-in-fact requirement.
In view of this confusion, it may be time to expunge
ripeness from the legal lexicon. Because “Congress, and not
the Judiciary, defines the scope of federal jurisdiction,” New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491
U.S. 350, 359 (1989), it seems there is no basis to refrain from
hearing a jurisdictionally sufficient case until the wine matures
to judicial taste. Prudential ripeness does not appear to fit the
Supreme Court’s contemporary legal formalism. And
constitutional ripeness equates to “injury in fact.” Keeping
ripeness alive, lower courts have tied themselves into
jurisprudential knots attempting to rationalize the doctrine.1
1 See Twitter, Inc. v. Paxton, 26 F.4th 1119, 1123 (9th Cir. 2022)
(holding that the fixed standard of constitutional ripeness applies
“less stringently” when constitutional rights are asserted but
simultaneously reasoning that prudential ripeness is “amplified”
when constitutional rights are asserted). And although it is
“axiomatic that a court must have jurisdiction before it can [resolve]
any” other issues, Keepseagle v. Vilsack, 815 F.3d 28, 36 (D.C. Cir.
2016) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83
(1998)), numerous circuits have treated prudential ripeness as
preceding the jurisdictional inquiry. See, e.g., BMG Monroe I, LLC
v. Village of Monroe, 93 F.4th 595 (2d Cir. 2024) (acknowledging
that “prudential-ripeness doctrine ‘is not, strictly speaking,
jurisdictional,’” but then concluding that prudential ripeness may be
“address[ed] ‘in advance of consideration of subject matter
jurisdiction’”) (internal citation omitted); Miller v. City of Wickliffe,
852 F.3d 497, 508 (6th Cir. 2017) (Rogers, J., concurring)
(concluding the same); Paraquad, Inc. v. St. Louis Hous. Auth., 259

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This case illustrates the confusion that ripeness doctrine
can produce. The Commission outlines a series of unknown
and “contingent future events” that must occur before
Petitioners’ grievances are “in fact.” It then relies on ripeness
rather than standing to support its action. The Commission
frames the question as a “prudential matter” calling for an
exercise of discretion rather than compliance with a
constitutional command. It asks us to balance the hardships
rather than to apply Article III’s “irreducible constitutional
minimum.” Lujan, 504 U.S. at 560. We rightly conclude that
the contingences FERC underscores deprive Petitioners of
standing and this Court of jurisdiction. Op. at 9–10. But had
we concluded otherwise, none of the Commission’s policy
concerns or interest balancing should have permitted us to
defer resolution.
II.
I believe a second questionable doctrine presented by this
case is worth mention: is it time to mothball associational
standing? Supreme Court precedent forecloses such a holding.
Nevertheless, there is good reason to believe that associational
standing does not meet at least two Article III requisites.
Organizations like Petitioners can satisfy constitutional
standing in one of two ways: by suing in their own right or by
suing on behalf of their members. Am. Soc. for Prevention of
Cruelty to Animals v. Feld Ent., Inc., 659 F.3d 13, 24 (D.C. Cir.
2011). The first path, which courts term “organizational
standing,” requires the entity to meet the same standing
requirements as “an individual plaintiff.” Equal Rights Ctr. v.
Post Props., Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). That
makes sense. If an organization qua organization is injured, it
F.3d 956, 960 (8th Cir. 2001) (“assuming without deciding . . .
standing” because the claims were “not ripe”).

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has a right to the redress thereof just like a natural plaintiff. Its
standing has a pedigree going back to the founding. See, e.g.,
Trs. of Dartmouth Coll. v. Woodward, 17 U.S. (4 Wheat.) 518
(1819).
The second path, “associational standing,” allows an
otherwise uninjured organization to sue if one of its constituent
members is aggrieved on the theory that it can assert its
members’ legal interests. Specifically, the entity must show
that “(1) its members would otherwise have standing to sue in
their own right; (2) the interests [the organization] seeks to
protect are germane to the organization’s purpose; and
(3) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt
v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343
(1977). So long as a single member can establish Article III
standing, the organization can pin its standing on that lone
member’s injury. See United Food & Com. Workers Union
Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 544–55 (1996) (an
association has standing if “at least one of [its] members would
have standing”).
Associational standing departs from the default rule that a
plaintiff “cannot rest his claim to relief on the legal rights or
interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499
(1975). As Justice Clarence Thomas recently observed,
“[a]ssocational standing seems to run roughshod over th[e]
traditional understanding of the judicial power” by “relaxing
both the injury and redressability requirements for Article III
standing.” FDA v. All. for Hippocratic Med, 602 U.S. 367, 399
(Thomas, J., concurring). Unsurprisingly, associational
standing has no well-rooted historical pedigree. It did not
appear until well into the twentieth century and was first used
in a case in which the plaintiff-association also had
organizational standing to assert its own injury. See NAACP v.

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Alabama ex rel. Patterson, 357 U.S. 449, 458–59 (1958). It
was not until 1963 that the Supreme Court recognized
associational standing as a standalone basis for jurisdiction and
it did so in a one-paragraph per curiam order. See Nat’l Motor
Freight Traffic Ass’n v. United States, 372 U.S. 246 (1963).
Subsequent caselaw indicates that its acceptance was more of
an accidental stumble than a well-considered move. See All. for
Hippocratic Med., 602 U.S. at 403 (Thomas, J., concurring)
(noting that the Court adopted associational standing “without
explanation[ and] seemingly by accident”); Ass’n of Am.
Physicians & Surgeons v. FDA., 13 F.4th 531, 538 (6th Cir.
2021) (“[the] trail of [associational standing] case citations
suggests that this standing arose more from historical accident
than practice.”).
Consider the problems associational standing poses. We
open the courthouse doors to a plaintiff with no intention of
vindicating its own legal rights. It need not claim any injury
nor seek any redress. See Warth, 42 U.S. at 511 (“[E]ven in
the absence of injury to itself, an association may have standing
solely as the representative of its members”); Hunt, 432 U.S. at
342 (“an association may have standing . . . even where it has
suffered no injury from the challenged activity.”). Instead, we
permit organizations to speak for a single one of their
constituent members. With a large enough membership, an
association could potentially claim universal standing to
challenge every statute up and down the U.S. Code. Cf. Brief
of Professor F. Andrew Hessick as Amicus Curiae Supporting
Petitioner at 28–29, All. For Hippocratic Med., 602 U.S. 367
(Nos. 23-235, 23-236) (noting that the American Association
of Retired People boasts a membership of over one in ten
Americans).
Courts have struggled to accommodate the mismatch
between Article III and associational standing. Because a

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plaintiff organization relying on associational standing alleges
no injury to itself, courts fashion defendant-oriented—as
opposed to the traditional plaintiff-oriented—remedies to grant
relief to the members whose legal rights the organization is
attempting to vindicate. See Michael T. Morley & F. Andrew
Hessick, Against Associational Standing, 91 U. Chi. L. Rev.
1539, 1588–91 (2024) (cataloging this problem); cf. Lewis v.
Casey, 518 U.S. 343, 357 (1996) (explaining that remedies
should be “limited to the inadequacy that produced the injury
in fact [to] the plaintiff”) (emphasis added). The defendant-
centric universal injunction has significantly stretched the
traditional equitable powers of Article III courts. See Dep’t of
Homeland Sec. v. New York, 140 S. Ct. 599, 600 (2020)
(Gorsuch J., with Thomas J., concurring) (describing universal
injunctions as “patently unworkable [and] sowing chaos” and
questioning “how the court could still be acting in the judicial
role of resolving cases and controversies” when providing
universal relief); Labrador v. Poe ex rel. Poe, 144 S. Ct. 921,
927–28 (2024) (Gorsuch, J., with Thomas & Alito, JJ.,
concurring) (suggesting that lower courts “retir[e] the
universal injunction”). Remedies in associational standing
cases extend to members who are not before the court. And
those members then avoid the ordinary hurdles of class action
certification, which would otherwise serve as a barrier to such
expansive relief. Worse still, members of the organization may
change throughout litigation, obscuring whose interests are
being vindicated and who will eventually be afforded relief.
The same problem runs to the preclusive effects of any final
judgment.
In my view, this case illustrates problems created by
associational standing. A group of uninjured trade and
lobbying associations sued on behalf of their various members.
Those members may—indeed, likely—themselves suffer no
injury in fact. For example, Petitioner Industrial Energy

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Consumers of America (IECA) is open to any manufacturer
that is a “significant consumer of energy.” IECA, Membership
Info, https://perma.cc/4CQU-2FDQ. IECA claims that its
roster includes “over 12,000 facilities nationwide,” yet these
far-flung members are permitted to sue—through a
Washington, D.C.-based nonprofit—regarding development of
an Iowa transmission project. IECA, About IECA,
https://perma.cc/HV82-EHDN. Petitioner Wisconsin
Industrial Energy Group is similarly comprised of Wisconsin-
based commercial end users of electricity and asserts it has
standing because, like IECA and the other Petitioners, at least
one member’s electricity rates might be affected by the FERC-
approved incentive awarded to ITC Midwest.2
This Court has considered the inclusion of uninjured class
members fatal in the class certification context. See In re Rail
Freight Fuel Surcharge Antitrust Litig.-MDL No. 1869, 725
F.3d 244, 252 (D.C. Cir. 2013) (holding that Rule 23’s
predominance requirement requires plaintiffs to “show that
they can prove, through common evidence, that all class
members were in fact injured” (emphasis added)). This defect
is overlooked if petitioners come to court as an association
rather than as a putative class. Neither law nor logic should
allow litigants to construct a work-around to avoid the
requirements of Federal Rule of Civil Procedure 23. Among
those requirements, a class action plaintiff must be truly
representative of the “class” it purports to represent. For
2 It is not even clear that Petitioners’ assertions satisfy the lax
standards for associational standing. It is Petitioners’ burden to
“make specific allegations establishing that at least one identified
member had suffered or would suffer harm.” Summers v. Earth
Island Inst., 555 U.S. 488, 498 (2009) (emphasis added). Petitioners
have asserted only that “unidentified members have been injured,”
which “is not enough” for standing. Chamber of Com. of U.S. v.
EPA, 642 F.3d 192, 199 (D.C. Cir. 2011).

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associational standing, however, courts require no showing that
an association adequately represent its members’ interests or
that the members have any input into the association’s decision
making—including its decision to sue.
We, of course, remain bound by Supreme Court precedent
permitting this standing deficiency. And rejection of
associational standing is not necessary to the disposition of
today’s case. But the Supreme Court “has never explained or
justified [the] doctrine’s expansion of Article III standing.”
All. for Hippocratic Med., 602 U.S. at 398 (Thomas, J.,
concurring). In my view, a closer look at the doctrine is
overdue.

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