Entergy Arkansas, LLC v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 25, 2024 Decided April 15, 2025
No. 22-1334
ENTERGY ARKANSAS, LLC, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
CLECO CAJUN LLC, ET AL.,
INTERVENORS
Consolidated with 23-1151
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Marnie A. McCormick argued the cause for petitioners.
With her on the briefs was Michael C. Griffen.
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

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Robert H. Solomon, Solicitor. Beth G. Pacella, Attorney,
entered an appearance.
Before: KATSAS, Circuit Judge, and GINSBURG and
RANDOLPH, Senior Circuit Judges.
Opinion for the court filed by Senior Circuit Judge RANDOLPH.
RANDOLPH, Senior Circuit Judge: In this consolidated case,
a series of Entergy companies petition for review of three
Federal Energy Regulatory Commission orders. FERC had
rejected tariff changes proposed by Midcontinent Independent
System Operator, reasoning that the new tariff would give
Entergy too much market power. Entergy urges us to find that
FERC’s decisions were arbitrary and capricious.
We do not reach the merits of this dispute. Entergy lacks
standing. The company’s opening brief failed to discuss
standing, thereby forfeiting any arguments in support of this
jurisdictional prerequisite. Entergy’s omission of standing also
ran afoul of Circuit Rule 28(a)(7). Given both the forfeiture
principles inherent in Rule 28(a)(7) and our court’s past practice,
dismissal is the appropriate consequence. Even if we were to
consider the standing arguments Entergy now belatedly
advances, the company has not demonstrated the necessary
concrete, imminent, and redressable injury.
I.
Under the Federal Power Act, FERC is charged with
“regulation of matters relating to generation” and “transmission
of electric energy in interstate commerce.” 16 U.S.C. § 824(a).
In exercising its regulatory authority, the agency must ensure that
“[a]ll rates and charges” related to “the transmission or sale of

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electric energy subject to the jurisdiction of the Commission,”
including “all rules and regulations affecting or pertaining to
such rates,” are “just and reasonable.” Id. § 824d(a).
FERC’s regulatory ambit includes “regional transmission
organizations.” These entities coordinate the interstate electricity
market in a specific geographic area. Their responsibilities
include “operating the electrical grid . . . , balancing energy
supply and demand, establishing markets for the sale and
purchase of electricity, and ensuring the reliable transmission of
electricity.” Citadel FNGE Ltd. v. FERC, 77 F.4th 842, 848
(D.C. Cir. 2023). One common form of an electricity market is
a “capacity market,” where “distributors of electricity purchase
commitments from generators to produce set amounts of
electricity in the future.” Pub. Citizen, Inc. v. FERC, 7 F.4th
1177, 1186 (D.C. Cir. 2021). In other words, electricity
distributors—typically, consumer-facing utilities—use capacity
markets to secure future supplies of electricity for their
customers. To administer capacity markets, regional
transmission organizations publish “tariffs” that establish the
rules governing the market. These tariffs are subject to FERC
review under the “just and reasonable” standard. PJM Power
Providers Grp. v. FERC, 880 F.3d 559, 561 (D.C. Cir. 2018)
(quoting 16 U.S.C. § 824d(a)).
This case concerns Midcontinent Independent System
Operator, a regional transmission organization responsible for
the power grid and electricity markets in fifteen Midwestern and
Southern states. MISO’s existing tariff sets the operating
requirements for distributors in its geographic area. One such
requirement mandates that distributors procure sufficient future
capacity to meet all projected electricity needs for each new year.
Distributors may comply in one of three ways. First, they may
themselves operate generation facilities. Second, distributors

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may bilaterally contract with electricity generators for a certain
amount of capacity. Third, distributors may participate in
MISO’s capacity market, termed the “Planning Resource
Auction,” where generators sell their spare capacity to
distributors. See Pub. Citizen, 7 F.4th at 1187 (describing
MISO’s capacity auction). Distributors are free to satisfy their
capacity needs through any combination of the three sources.
In 2021, MISO proposed tariff amendments requiring
distributors to secure at least 50 percent of their needed capacity
outside the Auction. MISO explained that its geographic region
was facing “significant shifts in its generation portfolio” due to
power plant retirements and increased use of renewables. J.A.
0002. These trends were causing a “reduction in excess
capacity” that, absent this change, could lead Auction supply to
outstrip demand. Id. And given some distributors’ heavy reliance
on the Auction, utilities might be unable to satisfy their
customers’ needs. Thus, by encouraging pre-Auction bilateral
contracting, MISO believed it could reduce the market’s
dependence on Auction-based generation and promote “long-
term Resource Adequacy in the MISO Region.” J.A. 0004. In
addition, MISO suggested that bilateral contracting would “help
in retaining capacity needed to meet reliability needs.” J.A.
0007.
After robust public comment, a Commission deficiency
letter, and responses by multiple parties, FERC denied MISO’s
proposed changes. The Commission raised several objections,
including that MISO “ha[d] not adequately addressed concerns
regarding the proposal’s potential impact on market power.” J.A.
0677. FERC explained that the Auction had a “disciplining
effect” on prices by providing a “centralized market” where
capacity sellers and buyers were on equal footing. Id. Moreover,
since distributors could choose to purchase up to 100 percent of

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their capacity in the Auction, bilaterally negotiated contracts
benefitted from the same competitive pricing dynamics. Id.
FERC emphasized that Potomac Economics, an entity acting as
MISO’s independent “market monitor,” had highlighted the
potential for “anticompetitive price[s],” J.A. 0657, in part
deriving from Entergy’s projected 41 percent market share in
some sub-markets within MISO, J.A. 0678.
MISO, Entergy, and intervenor Cleco sought rehearing.
After reconsideration, FERC reaffirmed its earlier order. It
“clarif[ied]” that its rejection “turn[ed] on” the market power
concerns. J.A. 0714. Specifically, the Commission worried that
any limits on the Auction would produce “negative impacts on
bilateral market dynamics” which could favor large generators
like Entergy. Id. Entergy then timely petitioned for review.1
After briefing and oral argument, FERC submitted a
supplemental brief on standing at our invitation.
II.
When petitioners seek direct review of agency action in our
court, they “bear[] the burden” of establishing their standing.
Twin Rivers Paper Co. v. SEC, 934 F.3d 607, 613 (D.C. Cir.
2019) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992)). In general, “the manner and degree of evidence” a
plaintiff must produce to substantiate its standing varies at
“successive stages of the litigation.” Defs. of Wildlife, 504 U.S.
at 561. Since a direct-review petitioner is, unlike a typical
plaintiff, immediately “asking the court of appeals for a final
judgment on the merits,” the burden of production is “the same
as that of a plaintiff moving for summary judgment.” Sierra
Club v. EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). The petitioner
Cleco also intervened in this case and joined Entergy’s brief. 1

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must therefore either point to “record evidence sufficient to
support its standing” or submit additional evidence making that
showing. Id.; see also Government of Manitoba v. Bernhardt,
923 F.3d 173, 179 (D.C. Cir. 2019). A petitioner’s “[f]ailure to
establish” standing “requires dismissal of the action.” Saline
Parents v. Garland, 88 F.4th 298, 304 (D.C. Cir. 2023).
“[E]xperience teaches that full development of the
arguments for and against standing requires the same tried and
true adversarial procedure” required for any merits issue. Sierra
Club, 292 F.3d at 900; see also Twin Rivers, 934 F.3d at 613.
This process requires litigants to actively advocate for their
positions, not “merely to mention a possible argument in the
most skeletal way, leaving the court to do counsel’s work, create
the ossature for the argument, and put flesh on its bones.”
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005).
Forfeiture ordinarily applies whenever a party relies on an
argument not raised in its opening brief. See Weinstein v. Islamic
Republic of Iran, 831 F.3d 470, 484 (D.C. Cir. 2016). For that
reason, “[i]ssues may not be raised for the first time in a reply
brief,” Rollins Env’t Servs. (NJ) Inc. v. EPA, 937 F.2d 649, 652
n.2 (D.C. Cir. 1991), or at oral argument, see United States ex
rel. Davis v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir.
2015). Moreover, parties must do more than merely mention an
issue: petitioners cannot be “obscure on the issue in their
opening brief and only warm[] to the issue in their reply brief.”
Twin Rivers, 934 F.3d at 615 (quoting Novak v. Capital Mgmt.
& Dev. Corp., 570 F.3d 305, 316 n.5 (D.C. Cir. 2009)).
Since these “ordinary rules of forfeiture apply to standing,”
a petitioner’s standing arguments “are forfeited if raised for the

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first time in reply.” Twin Rivers, 934 F.3d at 615 (first excerpt2
quoting Bernhardt, 923 F.3d at 179). A “petitioner must make
this evidentiary presentation [on standing] no later than when it
files the opening brief.” Id. at 613 (collecting cases); see also
Core Commc’ns, Inc. v. FCC, 545 F.3d 1, 2 (D.C. Cir. 2008)
(emphasizing that the petitioner must establish standing in its
“opening brief—and not . . . [the] reply to the brief of the
respondent agency” (alterations in original) (quoting Sierra
Club, 292 F.3d at 900)). Requiring this argumentative back and
forth—across the opening brief, response, and reply—provides
notice and thus “prevents unfairness to an agency that may have
reasonable grounds to challenge a petitioner’s standing” while
“conserv[ing] the resources of the court and the litigants.” Am.
Libr. Ass’n v. FCC, 401 F.3d 489, 493 (D.C. Cir. 2005).
Adversary proceedings also ensure the most accurate resolution
of the standing question, for it is “not the province of an
appellate court to ‘hypothesize or speculate about the existence
of an injury [Plaintiff] did not assert.’” Huron v. Cobert, 809
F.3d 1274, 1280 (D.C. Cir. 2016) (alteration in original)
(quoting Kawa Orthodontics, LLP v. Sec’y, 773 F.3d 243, 246
(11th Cir. 2014)).
We have “codified” these principles in Circuit Rule
28(a)(7). Twin Rivers, 934 F.3d at 613. The Rule states: “In
cases involving direct review in this court of administrative
actions, the brief of the appellant or petitioner must set forth the
basis for the claim of standing” in a separate section of its brief.
The Clerk of the Court’s office specifically cites the rule in its
Of course, we may always question a party’s standing sua sponte. 2
The forfeiture rules only operate in one direction: “[a]lthough a party
cannot forfeit a claim that we lack jurisdiction, it can forfeit a claim
that we possess jurisdiction.” Scenic Am., Inc. v. DOT, 836 F.3d 42,
53 n.4 (D.C. Cir. 2016).

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standard briefing order. For example, in this case, the order
quoted the rule and noted that, should litigants fail to comply,
“[t]he court ordinarily will not consider issues and arguments
raised for the first time in the reply brief.” Order, Entergy Ark.,
LLC v. FERC, No. 22-1334, Doc. No. 2018282 (Sept. 21, 2023),
at 2.
Entergy’s opening brief provided neither argument, nor
analysis, nor evidence to support its standing. The words
“standing,” “injury,” “traceability,” and “redressability” do not
appear in the document. In its responsive brief, FERC argued
that Entergy lacked standing. Only then, in the reply brief, did
Entergy argue that “the bases for Entergy’s standing [were]
readily apparent.” Reply Br. 3 n.1. But even if the bases and
evidence were there, the argumentation was not. No reasonable
reader of the principal Entergy brief would walk away with a
clear understanding of petitioners’ precise injuries, the chain of
causation, and how a decision of this court could redress those
harms. Its brief was about an APA challenge, not standing.
For similar reasons, we have previously declined to
repackage merits arguments as support for a petitioner’s
standing. See Arapahoe Cnty. Pub. Airport Auth. v. FAA, 850 F.
App’x 9, 11 (D.C. Cir. 2021) (declining to invent a standing
argument “from the brief’s arguments on the merits”). If
“Petitioners’ opening brief fails to make any argument, let alone
produce or point to any evidence, that [petitioner] has standing,”
then “[t]hat failure constitutes a forfeiture.” Id. at 10; see also
Public.Resource.Org, Inc. v. FCC, No. 23-1311, 2024 WL
5165702, at *3 n.1 (D.C. Cir. Dec. 19, 2024) (rejecting notion
that “their standing was self-evident based on the nature of their
claims” as “leaving the court to do counsel’s work” (second
excerpt quoting Bernhardt, 923 F.3d at 179)).

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To be sure, we occasionally excuse forfeiture and
noncompliance with Rule 28(a)(7) for “good cause.” Twin
Rivers, 934 F.3d at 614 (quoting Sierra Club, 292 F.3d at 900).
That arises in two circumstances: (1) “if the petitioner
‘reasonably, but mistakenly, believed’ that its opening brief
adequately proved standing,” or (2) “if the petitioner ‘reasonably
assumed’ that its standing was ‘self-evident’ from the
administrative record.” Sierra Club v. DOE, 107 F.4th 1012,
1015 (D.C. Cir. 2024) (quoting Twin Rivers, 934 F.3d at 614).3
Neither exception applies. The first exception comes into
play when the opening brief discussed standing but did so
insufficiently. Cf. Ams. for Safe Access v. DEA, 706 F.3d 438,
444 (D.C. Cir. 2013) (rejecting a Rule 28(a)(7) objection to
supplemental filings on standing because petitioners made “a
serious effort to satisfy the requirements of the rule by setting
forth their evidence and arguments in support of standing in their
opening brief”). Yet Entergy’s opening brief never once
mentioned any theory of standing. The second exception is also
inapplicable because Entergy’s standing is not “self-evident.”
The administrative record does not clearly lay out the specific
The “self-evident” exception is based on the Rule itself, which 3
textually only applies when the “petitioner’s standing is not apparent
from the administrative record.” D.C. Cir. R. 28(a)(7). But in January
2025, our court gave notice of a proposed Rule 28(a)(7) modification
which would eliminate the exception. See U.S. Ct. of Appeals for the
D.C. Cir., Notice of Proposed Circuit Rule Change and Opportunity
for Comment (Jan. 13, 2025), https://perma.cc/B6GU-HYGV. The
proposed amendment clarifies that “every appellant or petitioner must
include in its brief arguments and citations to evidence establishing by
a ‘substantial probability’ its claim of standing.” Id. (emphasis
added); see also U.S. Ct. of Appeals for the D.C. Cir., Circuit Rule 28
(Jan. 13, 2025), https://perma.cc/9F8D-HAFB (proposed rule text and
redline).

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injuries that Entergy now claims to experience, nor does it
explain how those injuries are traceable and redressable. In any
event, both exceptions require a reasonable belief that the
opening brief was sufficient. Yet in its reply brief, Entergy
explained that a “clerical oversight” resulted in the omission of
any discussion of standing from its opening brief. See Reply Br.
3 n.1. Since Entergy had intended to advance arguments about
its standing but simply neglected to do so, it could not possibly
have “reasonably, but mistakenly, believed” that the opening
brief demonstrated standing or “reasonably assumed” that
standing was self-evident.
That brings us to the appropriate remedy. We have held that,
“[u]nder our precedents and Circuit Rule 28(a)(7), petitioners’
failure to provide evidence of any injury from the [agency
action] is a sufficient ground to dismiss these cases for lack of
standing.” Concerned Household Elec. Consumers Council v.
EPA, No. 22-1139, 2023 WL 3643436, at *2 (D.C. Cir. May 25,
2023) (emphasis added); cf. Ams. for Safe Access, 706 F.3d at
444. And our court’s past cases have almost universally
dismissed petitions when we have found a violation of Rule
28(a)(7).4
We have found a violation of Rule 28(a)(7) in at least fifteen cases. 4
In thirteen of those cases, we dismissed the petition. See Twin Rivers,
934 F.3d at 613–16; Sierra Club, 107 F.4th at 1015–17;
Public.Resource.Org, 2024 WL 5165702, at *3; Concerned
Household, 2023 WL 3643436, at *2; Antero Res. Corp. v. FERC, No.
22-1278, 2024 WL 194189, at *3 (D.C. Cir. Jan. 18, 2024); Spaulding
v. Garland, No. 23-1007, 2024 WL 686983, at *2 (D.C. Cir. Feb. 20,
2024); Core Commc’ns, 545 F.3d at 2; Viasat, Inc. v. FCC, 47 F.4th
769, 781 (D.C. Cir. 2022); Press v. FCC, 735 F. App’x 731, 732 (D.C.
Cir. 2018); Elec. Priv. Info. Ctr. v. FAA, 892 F.3d 1249, 1255–56
(D.C. Cir. 2018); Nat’l Ass’n of Regul. Util. Comm’rs v. FCC, 851
F.3d 1324, 1327 (D.C. Cir. 2017); Arizona v. EPA, 77 F.4th 1126,

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In sum, we see no basis for excusing Entergy’s
noncompliance. As FERC noted, Entergy has complied in other
cases. See Resp’t Br. 22 n.7. Dismissal is the appropriate
remedy.
III.
Even if we consider the arguments that Entergy now
advances, they do not establish its standing. Entergy’s reply5
brief articulates two injuries: (1) future unreliability in the
electricity grid, and (2) “free rid[ing]” by other utilities on
Entergy’s investments in power plants. See Reply Br. 4–5.
First, the unreliability injury does not support standing.
Entergy points to nothing in the record indicating that it will be
financially injured by grid unreliability. Entergy’s briefing never
actually states that it will suffer a financial injury and never
seeks to quantify any costs. Of course, it’s easy to imagine
potential injuries—say, costs to add backup capacity or to
prepare for shortages—but those appear nowhere in the brief. As
the party bearing the burden, Entergy must actually state—and
show—that it will be harmed by grid unreliability.
1131 (D.C. Cir. 2023); Coal. for Responsible Regul., Inc. v. EPA, 684
F.3d 102, 147 (D.C. Cir. 2012), rev’d in part on other grounds sub
nom. Util. Air Regul. Grp. v. EPA, 573 U.S. 302 (2014). Only two
times did we excuse a violation of the rule. In one case, we found the
“self-evident” exception satisfied. See Del. Dep’t of Nat. Res. & Env’t
Control v. EPA, 785 F.3d 1, 8 (D.C. Cir. 2015). And in one other case,
we permitted supplemental briefing on standing. See Hearth, Patio &
Barbecue Ass’n v. EPA, 11 F.4th 791, 803 (D.C. Cir. 2021).
These concerns also demonstrate why standing is not “self-evident” 5
from the face of the record.

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Entergy’s grid unreliability argument is analogous to an
“increased risk” theory of standing, though here Entergy
challenges the Commission’s decision not to decrease risk. “To
ground standing on the risk of future harm, a party must show
both that the risk is substantial and that the challenged action
substantially increases it.” Viasat, Inc. v. FCC, 47 F.4th 769, 779
(D.C. Cir. 2022). In other words, Entergy must show that the risk
of future grid unreliability under the status quo is substantial and
that the foregone action of the Commission would have
substantially decreased the risk. Entergy fails both steps.
Entergy fails to demonstrate that the risk of future harm is
substantial, because the record evidence is split on whether the
risk is “actual or imminent.” Defs. of Wildlife, 504 U.S. at 560
(quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)).
Some parts of the record do suggest an “urgent” problem, J.A.
0522, of “immediate concern,” J.A. 0536. But other evidence in
the record is equivocal, indicating that reliability has never been
an issue and future developments merely “could result” in an
“impact on reliability . . . over the next decade.” J.A. 0458
(emphasis added). MISO’s initial submission to FERC stated
that it is “not prudent to assume,” and “there is no assurance
that,” the grid will have sufficient generating capacity in the
future. J.A. 0005. Even if so, MISO cautioned that “the exact
pace of th[e] transformation [to more intermittent renewable
generation sources] is admittedly not yet clear given the varying
estimates provided.” Id. And Entergy itself describes the
problem in its brief as the “long-term reliability” of the grid.
Pet’rs’ Br. 8. Once again, given that Entergy bears the burden of
showing an imminent injury, mixed evidence and equivocal
statements about that topic do not suffice—especially in the
absence of briefing, argument, and analysis explaining why we
should credit some statements over others.

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Moreover, Entergy has not shown that MISO’s proposal
would have substantially decreased the risk of grid instability.
For example, consider the sworn declaration of Scott Harvey,
which was submitted by MISO and upon which Entergy relies.
In his words, only “a very small number of [power purchasers,
known as Load Serving Entities], representing a very small
portion of the overall MISO planning reserve margin[,] contract
for very little or none of their planning reserve margin
requirement prior to the [Auction].” J.A. 456. In fact, the
“proposed [changes] would have had no effect on the capacity
procurement choices of all but a few MISO LSEs in past
[Auctions].” J.A. 443. As with imminence, mixed record
evidence cannot support standing absent any argumentation by
Entergy.
Second, the free-riding injury suffers from a redressability
problem. In essence, Entergy complains that the Auction prices
are too low to recoup its capital investment in power plants.
Requiring utilities to purchase off-Auction capacity, the
argument goes, would force all utilities to make “planning and
investment commitments” which could pay for the generation
capacity. J.A. 0644. But several events must occur to remedy
Entergy’s injury: other utilities must turn to Entergy for their
bilateral contracts, those utilities and Entergy must come to
agreement, and those agreements must include higher prices that
compensate Entergy for its capital expenditures.
Entergy wholly fails to articulate how this chain of events
would occur. In its brief, its only evidence that it would enter
into more bilateral contracts is an assertion that it “owns
significant generation resources in MISO,” followed by a
citation to two record pages. Reply Br. 5 (citing J.A. 656–57).
But those record pages merely catalog objections raised by the
market monitor and other parties about Entergy’s “unmitigated

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seller market power in the bilateral market,” status as a “pivotal
supplier” with 41 percent market share, and potential to become
a “dominant” player able to charge “anticompetitive price[s].”
J.A. 656–67. Implicitly, then, Entergy’s causal chain rests on an
exercise of market power—a fact which Entergy repeatedly and
strenuously rejects. Entergy cannot credit the market power
objections for standing purposes but disavow them on the merits.
In any event, when “redressability depend[s] on the conduct
of a third party not before the court, ‘standing is not precluded,
but it is ordinarily substantially more difficult to establish.’”
Competitive Enter. Inst. v. FCC, 970 F.3d 372, 381 (D.C. Cir.
2020) (quoting Defs. of Wildlife, 504 U.S. at 562). One certainly
may credit “market forces” in a redressability analysis, id.
(quoting Competitive Enter. Inst. v. Nat’l Highway Traffic Safety
Admin., 901 F.2d 107, 117 (D.C. Cir. 1990)), but Entergy must
describe the chain of events. And it must provide its basis for
predicting the likely behavior of third parties. A citation to
statements about market share is insufficient to show that the
entire sequence of events is likely to occur. See Antero Res.
Corp. v. FERC, No. 22-1278, 2024 WL 194189, at *4 (D.C. Cir.
Jan. 18, 2024) (explaining that while standing can be “rooted in
the basic laws of economics,” dismissal was appropriate because
“[n]either of the petitioners’ opening briefs provide[d] any
details of when or how the harms they describe[d] will occur”
(first excerpt quoting Growth Energy v. EPA, 5 F.4th 1, 33 (D.C.
Cir. 2021))).
* * *
Accordingly, because Entergy has failed to demonstrate
standing, the petitions for review are dismissed.
So ordered.

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