Solar Energy Industries Association v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed September 9, 2025
No. 21-1126
S OLAR ENERGY INDUSTRIES ASSOCIATION ,
P ETITIONER
v.
F EDERAL ENERGY R EGULATORY C OMMISSION,
R ESPONDENT
NEW S UN ENERGY LLC AND B ROADVIEW S OLAR , LLC,
INTERVENORS
Consolidated with 21-1136, 21-1142, 21-1149, 21-1175
On Remand from the Supreme Court of the United States
Jeremy C. Marwell argued the cause for petitioners The
Edison Electric Institute and Northwestern Corporation. With
him on the briefs were Sarah N. Norcott and James T. Dawson.
Heather Curlee argued the cause for petitioner Solar
Energy Industries Association. With her on the briefs was
Todd G. Glass.

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Adam Lowney and Christopher Jones were on the brief for
amicus curiae PacifiCorp, d/b/a/ Pacific Power and Rocky
Mountain Power, in support of petitioners.
Jared B. Fish, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were Matthew R. Christiansen, General Counsel, at
the time the brief was filed, and Robert H. Solomon, Solicitor.
Anand Viswanathan, Attorney, entered an appearance.
Robert M. Loeb argued the cause for intervenors NewSun
Energy LLC and Broadview Solar, LLC. With him on the brief
were Gregory M. Adams, Adam Wenner, and Jeremy R.
Peterman. Peter Richardson entered an appearance.
Kip D. Nelson, Nick Jimenez, and Irion A. Sanger were on
the brief for amici curiae Carolinas Clean Energy Business
Association, et al. in support of respondent.
Nicholas M. Gladd and John B. Kenney were on the brief
for amicus curiae Gallatin Power Partners, LLC in support of
respondent.
Before: P ILLARD , KATSAS and WALKER , Circuit Judges.
Opinion for the Court filed by Circuit Judge P ILLARD.
Opinion concurring in part and dissenting in part filed by
Circuit Judge WALKER .
P ILLARD, Circuit Judge: In 2023, we applied Chevron to
deny Petitioners’ challenge to the Federal Energy Regulatory
Commission’s order certifying the Broadview solar power
facility in Montana as a “small power production facility”
under the Public Utility Regulatory Policies Act of 1978.

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Petitioners, a utility that would be obligated to buy
Broadview’s power if it is correctly certified together with a
trade association representing electric utilities nationwide,
sought Supreme Court review. The Court granted their petition
for certiorari, vacated our judgment, and remanded to us for
further consideration in light of Loper Bright v. Raimondo.
Edison Elec. Inst. v. FERC, 144 S. Ct. 2705 (2024).
The nub of the dispute is whether the Broadview facility’s
maximum “power production capacity” exceeds the Public
Utility Act’s 80 megawatt (MW) ceiling. Broadview has a
solar array capable of generating up to 160 MW and a battery
capable of storing up to 50 MW, both as DC (direct current)
power. None of that power can be delivered to the electrical
grid, however, until it is converted into AC (alternating current)
by the facility’s inverters. Those inverters have a total net
capacity to send out 80 MW of AC power to the grid—whether
from the solar array, the battery or some combination thereof.
FERC thought the Public Utility Act’s definition of “small
facility” was ambiguous because the statute “neither defines
the terms ‘facility’ and ‘power production capacity,’ nor
explains how the Commission is supposed to ascertain the
‘power production capacity’ of any particular ‘facility.’”
Broadview Solar, LLC, 174 FERC ¶ 61,199, 61,796 (2021).
Petitioners assert that “power production capacity”
unambiguously means the total amount of DC power generated
by the solar array. For its part, FERC has consistently
interpreted “power production capacity” to mean the
“maximum output that the facility can produce for the electric
[grid].” Id. at 61,797. When the case was first before us, FERC
defended its interpretation as reasonable and within its
expertise, and we affirmed under Chevron.

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On remand from the Supreme Court, we apply the statute
without deference under Loper Bright and conclude that the
maximum “power production capacity” of the “facility” is best
read to refer to the amount of AC power that the facility can
send out to the grid. That reading accounts for all the facility’s
components working together, not just the maximum capacity
of one subcomponent, and it appropriately focuses on grid-
usable AC power. Because the Broadview inverters’
maximum output capacity at any given time is 80 MW of AC
power, the entire facility’s send-out capacity is capped at that
level consistent with FERC’s decision to certify it as a small
power production facility. Because the best view of the statute
supports FERC’s certification order, we deny the petitions for
review.
I.
A.
Congress enacted the Public Utility Regulatory Policies
Act of 1978 (PURPA) as part of a package of legislative
proposals to combat the nationwide energy crisis of the late
1970s. FERC v. Mississippi, 456 U.S. 742, 745 (1982). Title
II of PURPA aims to reduce the country’s dependence on fossil
fuels by encouraging their conservation and the more efficient
use of alternative sources of energy generation. Id. at 750-51.
It does so by recognizing the importance of “small power
production facilities” and empowering the Federal Energy
Regulatory Commission (FERC or Commission) to subject
those “nontraditional” facilities to requirements, regulations,
and oversight distinct from those governing traditional power
generation facilities. See 16 U.S.C. § 824a-3(e), 2601;
Mississippi, 456 U.S. at 746, 750-51. To qualify under
PURPA, a facility must satisfy certain size, location, and
energy resource requirements, as follows:

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“[S]mall power production facility” means a facility
which is an eligible solar, wind, waste, or geothermal
facility, or a facility which—
(i) produces electric energy solely by the use, as a
primary energy source, of biomass, waste, renewable
resources, geothermal resources, or any combination
thereof; and
(ii) has a power production capacity which, together
with any other facilities located at the same site (as
determined by the Commission), is not greater than 80
megawatts[.]
16 U.S.C. § 796(17)(A).
Congress believed that, by increasing use of small power
production facilities that produce power from biomass, waste,
renewable, or geothermal resources, it could “reduce the
demand for traditional fossil fuels.” Mississippi, 456 U.S. at
750. To ensure a market for nontraditional facilities, PURPA
directed FERC to require utilities to sell power to and buy
power from qualifying facilities at favorable rates. See 16
U.S.C. § 824a-3(a)-(d); 18 C.F.R. § 292.303(a). Facilities may
certify themselves (subject to protest and FERC review) as
meeting the regulatory requirements making them eligible for
treatment as small power production facilities, or they may
apply for certification from the Commission. See 18 C.F.R.
§ 292.207(a)-(b).
B.
Broadview is developing a solar facility in Montana
comprised of a solar panel array, which produces up to 160
MW of DC power, and an accompanying battery storage
system that can store power from the solar panels during peak

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sunshine and discharge up to 50 MW of DC power for up to
four hours when the sun is not shining. Because the nation’s
electrical grid runs on AC power, solar facilities must also have
devices known as inverters to convert DC power to grid-usable
AC power. The Broadview facility’s inverters have a total net
capacity of 80 MW of AC power, making it physically
incapable of producing more than 80 MW of electricity for sale
to the interconnected utility at any point in time.
The Broadview facility will interconnect with
NorthWestern Energy’s transmission system. If Broadview
does qualify as a small power production facility,
NorthWestern will be required by PURPA to purchase the
electricity that it generates. NorthWestern and Edison Electric
Institute, a trade association representing investor-owned
electric companies across the United States subject to
PURPA’s mandatory purchasing obligation, filed motions to
intervene in the Broadview docket objecting to certification of
the facility.
In a September 2020 Order, the Commission denied
Broadview’s application for certification, concluding that the
facility exceeded the 80 MW statutory limit for “power
production capacity.” See Broadview Solar, LLC, 172 FERC
¶ 61,194 (2020), set aside, 174 FERC ¶ 61,199 (2021),
modified, 175 FERC ¶ 61,228 (2021). The key finding was that
the relevant capacity was that of the solar array—160 MW. Id.
at 62,276. The Commission acknowledged that it thereby
departed from its own precedent defining “power production
capacity” in relation to a facility’s “send out,” or maximum net
output of electricity, Occidental Geothermal, Inc., 17 FERC
¶ 61,231 (1981), which in this case all agreed was 80 MW. But
the Commission determined the statute was not intended to
encompass “a facility purposefully designed with a 160 MW
solar array.” 172 FERC ¶ 61,194, at 62,275.

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Broadview sought rehearing. In March 2021, the
Commission reversed course and granted Broadview
qualifying facility status under PURPA. 174 FERC ¶ 61,199
(2021). The Commission set aside its initial order and
reinstated Occidental’s “send out” approach based on its
conclusion that the best reading of the statute considers all the
facility’s subcomponents working together, not the solar array
in isolation. Id. at 61,797. Solar Energy Industries Association
(SEIA), a trade association representing solar companies, filed
an untimely motion to intervene on rehearing, which FERC
denied for want of the requisite showing of good cause for its
late filing. Id. at 61,795.
NorthWestern and Edison then sought rehearing of the
order recognizing Broadview as a small power production
facility, and FERC issued another order affirming that
Broadview qualifies. Noting that “[b]oth Broadview’s solar
[photovoltaic] array and its battery system operate in DC power
and both are upstream of a single pathway through the DC-to-
AC inverters to the interconnection,” the Commission rejected
the contention that the battery’s capacity had to be calculated
separately from the capacity of the solar array and added to it
to determine whether the facility’s “power production
capacity” is “not greater than 80 megawatts.” 175 FERC
¶ 61,228, 62,314, 62,320 (2021).
The Commission disagreed with Edison’s contention that
Broadview was designed to “game” PURPA’s power
production capacity limit. FERC instead emphasized that the
battery enhances Broadview’s capacity factor. Id. at 62,318-
62,319. A capacity factor reflects how consistently over time
a power plant achieves its maximum power output. See
“Capacity Factor,” U.S. Energy Info. Admin.,
https://perma.cc/Y75V-QF96 (last visited July 2, 2025); “What
is Generation Capacity?,” U.S. Dep’t of Energy (March 30,

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2025), https://perma.cc/MF7Y-Z3AD. The capacity factor of
a typical solar facility is lower than that of other types of
PURPA-qualifying facilities, “like those using biomass or
waste,” whose “fuel can more consistently deliver 80 MW of
AC electricity to their points of interconnection in all hours.”
Broadview Solar, 175 FERC ¶ 61,228, at 62,318-62,319. But,
with the help of its battery, Broadview can achieve its
maximum 80 MW output approximately 35 to 40 percent of the
time—a substantial improvement over a solar facility without
battery storage, which achieves its maximum only 25 to 30
percent of the time. See id. FERC concluded that Broadview’s
design “does not reflect non-compliance with PURPA,” but
instead the permissible use of technology to boost its capacity
factor “while remaining an eligible qualifying facility under
PURPA” with production never in excess of 80 MW. Id. at
62,319.
This court denied the petitions for review, concluding that
the Commission’s interpretation of the “power production
capacity” of a “facility” was reasonable and therefore entitled
to deference under Chevron. Solar Energy Indus. Ass’n v.
FERC, 59 F.4th 1287 (D.C. Cir. 2023). It also rejected
Petitioners’ arguments that the Commission acted arbitrarily
and capriciously in approving Broadview’s application. Id. at
1294-95. Finally, the panel upheld the Commission’s denial of
SEIA’s untimely motion to intervene and dismissed its petition
for review. Id. at 1295.
Edison and NorthWestern sought Supreme Court review
limited to (1) whether FERC correctly interpreted “power
production capacity” and (2) whether its interpretation was
entitled to judicial deference under Chevron. Petition for Writ
of Certiorari, Edison Elec., 144 S. Ct. 2705 (No. 22-1246).
After the Court decided Loper Bright Enterprises v. Raimondo,
603 U.S. 369 (2024), it granted the petition in this case and,

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without deciding the merits, vacated our prior decision and
remanded to us for further consideration in light of Loper
Bright. Edison Elec., 144 S. Ct. 2705. On remand, we apply
the Court’s directive to “exercise [our] independent judgment
in deciding whether an agency has acted within its statutory
authority.” Loper Bright, 603 U.S. at 412.
II.
Taking a fresh look at the statutory text and context of 16
U.S.C. § 796(17)(A), we hold that a small power production
facility’s “power production capacity” refers to its maximum
net output of AC power to the electrical grid at any given point
in time. Because the amount of power the Broadview facility
can send out to the grid is limited by its inverters to 80 MW, it
qualifies as a small power production facility under PURPA.
A.
i.
Broadview qualifies under section 796(17)(A) if it is a
“facility” with a “power production capacity” no greater than
80 MW. “[W]hen addressing a question of statutory
interpretation, we begin with the text,” and apply “the
traditional tools of statutory construction.” Pac. Gas & Elec.
Co. v. FERC, 113 F.4th 943, 947-48 (D.C. Cir. 2024) (citations
and internal quotation marks omitted). All parties agree that
“facility” refers to all components of the Broadview project as
they function together—that is, the solar array, the battery, and
the inverters. Pet Supp. Br. 18; FERC Supp. Br. 5-6. They
dispute only the meaning of “power production capacity.”
Invoking definitions of “power,” “production,” and
“capacity” from dictionaries contemporaneous with PURPA’s
enactment, Petitioners assert the statutory phrase necessarily

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refers to “the maximum amount of AC or DC power that a
facility can create.” Pet. Supp. Br. 9-10. They argue that
Broadview’s power production capacity is 160 MW because
the solar array can generate up to that amount of raw DC power.
The Commission counters with industry definitions and
evidence of its own prior interpretations to define “power
production capacity” as the total amount of grid-usable AC
power that the facility as a whole can generate. FERC Supp.
Br. 8-13.
The Commission has the better reading of the text. Section
796(17)(A) refers to the “power production capacity” of a
“facility” which “produces electric energy.” Because Congress
chose to refer to the “facility” rather than a particular
subcomponent like the power generation unit, the best reading
is that the “power production capacity” at issue is the capacity
of all the components as they work together to produce usable
power. The only grid-usable form of electric energy the facility
produces is AC power. The most natural reading of “power
production capacity” of the facility, then, is the amount of AC
power that the overall facility transmits to the electrical grid.
Petitioners’ contrary argument that “power production
capacity” must refer to the maximum potential output of the
solar array is unpersuasive. “[I]t is a fundamental principle of
statutory construction (and, indeed, of language itself) that the
meaning of a word cannot be determined in isolation, but must
be drawn from the context in which it is used.” Reno v. Koray,
515 U.S. 50, 56 (1995) (internal quotation marks omitted). We
cannot ignore the word “facility” to instead consider the
capacity of the solar array alone. When reading statutes, “[w]e
presume that Congress did not ‘include words that have no
effect,’ and so we generally ‘avoid a reading that renders some
words altogether redundant.’” Mercy Hosp., Inc. v. Azar, 891
F.3d 1062, 1068 (D.C. Cir. 2018) (quoting Antonin Scalia &

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Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 176-77 (2012)). And, as a practical matter, looking to the
solar array by itself makes little sense because it generates DC
power, which is not the form in which the electricity is sold.
The best reading of “power production capacity” of the facility
refers to the amount of grid-usable electricity that it produces,
in line with the statutory goal of regulating the relationship
between power generators and the utilities they supply.
The statute’s history and purpose confirm that
interpretation of section 796(17)(A). See Solar Energy, 59
F.4th at 1293-94. The House Committee Report accompanying
PURPA’s enactment stated that “[t]he power production
capacity of the facility means the rated capacity of the facility.”
H.R. Rep. No. 95-1750, at 89 (1978) (Conf. Rep.). That
highlights the statute’s textual reference to the “power
production capacity” of the whole facility and reinforces that it
would be error to assess the capacity of the generating unit—
the solar array—on its own.
The statutory purpose to prompt development of
alternative sources of usable energy also supports that reading.
Congress enacted Title II of PURPA “to encourage the
development of . . . small power production facilities” and
promote the use of alternative energy sources, including solar
power. Conn. Valley Elec. Co. v. FERC, 208 F.3d 1037, 1045
(D.C. Cir. 2000) (quoting FERC v. Mississippi, 456 U.S. at
750); see 16 U.S.C. § 824a-3(a). Unlike many other energy
sources, a solar array generates power intermittently. It needs
sunlight; cloud cover and nighttime darkness limit a solar
array’s production capability. Broadview partially offset that
disadvantage by installing a solar array with a capacity of 160
MW plus a battery. During periods of ample sunshine, the
facility can send out 80 MW of AC power while also charging
the battery. During some of the periods without sunshine,

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when the solar array cannot generate power to send through the
inverters to the grid, the facility can send out previously
generated power stored in the battery. The battery thus allows
the facility to spread over more hours of the day the energy the
solar panels generate only when the sun shines, enabling the
facility to more consistently deliver AC power to the grid.
The battery works to narrow the gap between a solar
facility’s capacity factor and those of other PURPA-qualifying
generation alternatives—such as facilities powered by
geothermal, biomass, or waste energy—that can deliver a
maximum of 80 MW of electricity consistently throughout a
24-hour period. Even with its battery, however, the Broadview
facility cannot continuously deliver 80 MW of AC power, and
at no time can it send out more than that statutory maximum,
which is keyed to power and not capacity factor. For these
reasons, disqualifying Broadview because one of the facility’s
component parts has a maximum nominal production capacity
above 80 MW would be inconsistent with Congress’s stated
goal of boosting small-scale solar power facilities.
ii.
FERC’s interpretation of section 796(17)(A) is bolstered
by the fact that the Commission has consistently for 44 years
defined “power production capacity” as the amount of power
that a facility as a whole sends out to the electrical grid. The
Commission has calculated a facility’s power production
capacity using the facility’s net output, or “send out,” at least
since its order in Occidental Geothermal, 17 FERC ¶ 61,231
(1981). In Occidental, the Commission reasoned that “a
facility’s power production capacity is not necessarily
determined by the nominal rating of even a key component of
the facility.” Id. at 61,445. “For example, while economy
dictates that a large facility be built so that all its components

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have nearly the same operating limits, thus minimizing the
costs of unutilized component capabilities, it is not uncommon
for smaller facilities to find it most economic to employ
commercially available components some of which have
individual capabilities significantly exceeding the overall
facility capabilities.” Id. The Commission therefore concluded
that “power production capacity” is the “maximum net output
of the facility which can be safely and reliably achieved under
the most favorable operating conditions likely to occur over a
period of several years.” Id. The net output is the gross amount
of electricity generated, minus electricity that never reaches the
grid because it is consumed on site for purposes such as
auxiliary operating equipment. See id. In the simplest terms,
the net output equals the amount of electric power that is
transmitted from the facility to the grid for customer use—its
“send out.”
Since it decided Occidental, the Commission has
consistently used the “send out” approach to calculate power
production capacity. For example, in Malacha Power Project,
Inc., 41 FERC ¶ 61,350 (1987), the Commission concluded that
“the electric power production capacity” of a hydroelectric
facility was “the capacity that the electric power production
equipment delivers to the point of interconnection with the
purchasing electric utility’s transmission system.” Id. at
61,445. See also Penntech Papers, Inc., 48 FERC ¶ 61,120,
61,423 (1989) (rejecting calculation of power production
capacity based on gross output in favor of net output approach);
Turner Falls Ltd. P’ship, 53 FERC ¶ 61,075, 61,225 (1990)
(same).
FERC’s initial decision in this case repudiated its “send
out” approach, see 172 FERC ¶ 61,194, only to revert on
rehearing to its longstanding reading of the statute, see 174
FERC ¶ 61,199; 175 FERC ¶ 61,228. The Commission thus

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applied the “send out” approach to the Broadview facility,
deeming it most logical to “look to the maximum output that
the facility can produce for the electric utility after accounting
for all the constituent parts that make up the facility, which in
this case includes the inverters.” 174 FERC ¶ 61,199, at
61,797. For that reason, “power sent from the solar panels to
other internal components, rather than to the grid, cannot
properly be considered the output of the facility.” Id. That
analysis cohered with the statutory scheme, in FERC’s view,
because Congress designed PURPA to address utilities’
reluctance to purchase power from smaller alternative
generation facilities—and to reserve the statute’s economic
benefits for those facilities alone. Id. The Commission
therefore concluded that the best interpretation of the 80 MW
power production capacity limit refers to the entire facility’s
net output. Id.
Petitioners argue that we should discount the
Commission’s prior interpretations dating back to Occidental
because the Commission briefly departed from that position
before it reverted on rehearing. We decline to do so. The
rehearing requirement “permits the agency an initial
opportunity to correct its errors.” Granholm ex rel. Mich.
Dep’t of Nat. Res. v. FERC, 180 F.3d 278, 281 (D.C. Cir.
1999). Moreover, a shift in the Commission’s position
between the initial hearing and rehearing in the same
adjudication does not detract from the persuasiveness of the
Commission’s view.
Petitioners also argue that the Commission incorrectly
conflates Broadview’s production capacity with its
transmission capacity. They suggest “capacity” must refer to
the facility’s generation or production capacity, because if
Congress intended to refer to delivery capacity or output
capacity, it would have used those terms. Pet. Supp. Br. 13.

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For example, Petitioners point to other sections of PURPA that
use the phrase “transmission capacity” to refer to a facility’s
ability to transmit or deliver power to utilities. See Pet. Supp.
Br. 13; Edison Electric Br. 28 (citing Pub. L. No. 95-617
§§ 202, 203, 92 Stat. 3117, 3135-38 (1978)).
The Commission persuasively rejected that argument on
rehearing, recognizing that the concepts of production and
transmission are overlapping in this context, where the
statutory focus is on the amount of usable power a facility can
deliver at any given time. 174 FERC ¶ 61,199, at 61,797. That
makes sense. As we have explained, “power production
capacity” refers to the amount of power the facility sends out
to the electrical grid. Industry-specific reference materials
reflect the close relationship between the concepts of producing
energy and delivering it for use. See Generator Capacity, U.S.
Energy Info. Admin., https://perma.cc/B8US-6MUT (last
visited July 8, 2025) (defining “generator capacity” as “[t]he
maximum output, commonly expressed in megawatts (MW),
that generating equipment can supply to system load, adjusted
for ambient conditions”); Load (electric), U.S. Energy Info.
Admin., https://perma.cc/36SM-GVMN (last visited July 8,
2025) (defining “load” as “[a]n end-use device or customer that
receives power from the electric system”).
Petitioners also point to a much more recent enactment
from Congress that defines the term “qualified facility” by
referring to its maximum net output, as measured in AC power.
Pet. Supp. Br. 13 (citing 26 U.S.C. § 48E(a)(2) (2022)).
According to Petitioners, that statute shows that Congress
could have explicitly defined “power production capacity” in
Section 796(17)(A) of PURPA to refer exclusively to AC
power if that was its intent. But that does not much help
Petitioners. See, e.g., Slack Techs., LLC v. Pirani, 598 U.S.
759, 769 (2023). The new provision’s phrasing could just as

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readily be understood to make explicit a long-held
understanding that the capacity of electricity produced to the
grid is ordinarily measured as AC power.
Having employed the available tools of statutory
construction, we hold that section 796(17)(A) is best read to
refer to the maximum amount of AC power a facility can
deliver to the electrical grid at any one time.
iii.
Our dissenting colleague agrees that we must account for
the entire Broadview facility when we calculate its power
production capacity, and that the facility can only deliver 80
MW of AC power to the grid at any given time. But he would
calculate the facility’s maximum power production capacity by
adding the 50 MW of DC power stored by the battery to the 80
MW of inverted AC power delivered to the grid to bring the
facility’s total power production capacity to 130 MW.
Dissenting Op. at 12-13. In his view, the electricity used to
charge the battery has to be counted as “power” “produce[d]”
by the facility. Id. at 8-9.
FERC’s reading is the better one for at least two reasons.
First, as discussed above, the statute is best read to concern the
amount of AC power delivered to the grid for the use of the
electric utility. Second, as the Commission explains, the
dissent makes an apples to oranges comparison of the power
stored in the battery and the power transmitted to the grid. It is
undisputed that power production capacity refers to the amount
of power that a facility produces to the grid at a given time.
When Broadview’s solar array is generating enough power to
supply 80 MW directly to the inverters and onto the grid, the
power stored in the battery cannot be added to enable the
facility to send out 130 MW—or, indeed, any amount greater
than 80 MW. “When the solar array produces more DC

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electricity than the inverters can convert to AC electricity, the
excess DC electricity will be stored in the battery energy
storage system and will not be delivered to the point of
interconnection with NorthWestern’s grid until a later time.”
Broadview Solar, 174 FERC ¶ 61,199, at 61,793. It is only
when the solar array is below maximum capacity (at night or
during cloudy periods) that power will flow from the battery to
the inverters to ensure that the facility is still sending up to a
maximum of 80 MW of inverted power to the grid.
Broadview’s maximum of 80 MW of post-inversion AC power
production capacity to send out to NorthWestern’s grid
therefore caps the sum of any power that was generated by the
solar array and power that came from the battery. The dissent
therefore proposes an inflated calculation of Broadview’s
power production capacity.
B.
In their original appeal, Petitioners challenged as arbitrary
and capricious FERC’s decisions not to fault Broadview for
errors on one of its form submissions, to treat the solar array
and the battery as a single facility, and to count the facility’s
instantaneous net power output rather than its power output
over time. We rejected those challenges, see Solar Energy, 59
F.4th at 1294-95, and as to them Petitioners sought no further
review. “When the Supreme Court vacates a judgment of this
court without addressing the merits of a particular holding in
the panel opinion, that holding ‘continue[s] to have
precedential weight, and in the absence of contrary authority,
we do not disturb’ it.” U.S. v. Adewani, 467 F.3d 1340, 1342
(D.C. Cir. 2006) (quoting Action All. of Senior Citizens of
Greater Philadelphia v. Sullivan, 930 F.2d 77, 83 (D.C. Cir.
1991)). Because the Court’s remand “for further consideration
in light of” Loper Bright has no bearing on those issues, we

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reinstate our analysis and holding as to them. Edison Elec., 144
S. Ct. 2705.
The same goes for the prior panel’s dismissal of then-
petitioner SEIA for failure to demonstrate an Article III injury-
in-fact to support its standing. SEIA did not seek further
review. Our prior holding that SEIA lacked standing to
intervene, 59 F.4th at 1295, is also unaffected by the Supreme
Court’s decision to grant review, vacate our prior decision, and
remand for further consideration of Edison and
NorthWestern’s petitions in light of Loper Bright. SEIA on
remand does not ask us to revisit our decision sustaining
FERC’s denial of its motion to intervene, and instead appears
before us as amicus curiae. We therefore reinstate the portions
of our prior opinion addressing the Commission’s decision to
deny SEIA’s motion to intervene.
***
For the foregoing reasons, we deny the petitions for
review.
So ordered.

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WALKER , Circuit Judge, concurring in part and dissenting in
part:
The Public Utility Regulatory Policies Act requires utility
companies to purchase power from small facilities that produce
solar power. It defines them as facilities with a “power
production capacity” of no more than 80 megawatts.1
Broadview produces solar power. At its peak, it can
produce up to 130 megawatts of useful power. So it is not a
“small facility.”
Because the Federal Energy Regulatory Commission
concluded otherwise, I would grant the petitions for review,
vacate the rehearing orders, and remand to FERC for
reconsideration.
I. Background
A. The Public Utility Regulatory Policies Act
The Public Utility Regulatory Policies Act encourages
companies to produce renewable energy.2
To achieve that goal, the Act gives extraordinary benefits
to “small power production facilit[ies].”3 Those facilities
produce electricity from “biomass, waste, renewable resources,
[or] geothermal resources.”4 The Act exempts them from
1 16 U.S.C. § 796(17)(A)(ii).
2 See id. § 824a-3(a); see generally FERC v. Mississippi, 456 U.S.
742, 745-46, 750-51 (1982) (describing the Act’s history).
3 16 U.S.C. § 796(17)(A).
4 Id. § 796(17)(A)(i).

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several regulatory burdens.5 And it guarantees them a viable
market by forcing public utilities to buy power that small
facilities produce.6
Requiring public utilities to purchase all the power
produced by small facilities is strong medicine. It can force
them to buy power that they do not need or to buy power at an
above-market price. That cost is passed on to consumers.7
Thus, the Act’s definition of “small facility” plays a key
role in the statutory scheme: It keeps the mandatory-purchasing
regime within bounds. The broader the definition of “small
facility,” the greater the number of power plants that get special
regulatory treatment under the Act.
The Act defines “small facility” as a “facility” with a
“power production capacity” of no more than 80 megawatts.8
B. Broadview’s Design
Founded by a venture-capital company that has raised more
than $47 billion,9 Broad Reach Power is one of the “largest
5 Id. § 824a-3(e)(1) (directing FERC to make rules exempting “small
power production facilities” from regulation under various statutes).
6 Id. § 824a-3(a)(2), (b).
7 Powering America: Reevaluating PURPA’s Objectives and its
Effects on Today’s Consumers: Hearing Before the H. Subcomm. on
Energy & Commerce, 115th Cong. 84 (2017) (testimony of Terry L.
Kouba, Vice President, Alliant Energy).
8 16 U.S.C. § 796(17)(A)(ii).
9 About Our Company, EnCap Investments, perma.cc/T9G5-LQ2Z
(last visited Aug. 14, 2025).

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standalone energy storage companies in the U.S.”10 It makes
solar and wind energy in California, Montana, Texas, Utah, and
Wyoming. Its complex in Montana’s Yellowstone County cost
at least $2 billion to build.
In 2019, the Montana Complex could deliver 620
megawatts of power.11 That is only slightly less than the
amount of power produced by the Hoover Dam when it became
the world’s largest hydroelectric facility in 1939.12
In 2019, the Montana Complex contained four separate but
similar solar-power projects.13 One of them is called
Broadview I.
Broadview includes a solar array, a battery, and inverters.
With 470,000 solar panels, its solar array produces up to 160
megawatts of direct-current power. The battery stores some of
those megawatts. And the inverters convert up to 80
megawatts from DC power to alternating-current power.
Because the electric grid accepts only AC power, inversion
readies the power for the grid to receive it.
Depending on the time of day, Broadview’s components
serve different purposes. During the day, the solar array sends
80 megawatts of power to the inverters and charges the battery.
But at night, it cannot generate power. That’s when the battery
matters most. At night, the battery sends stored power to the
10 Broad Reach Power Acquired by Engie from EnCap Energy
Transition and Apollo Funds, EnCap Investments (Aug. 24, 2023),
perma.cc/X9N3-NTCU.
11 Edison Br. 12.
12 The Story of the Hoover Dam, Bureau of Reclamation (July 13,
2022), perma.cc/6JWN-BY77.
13 Edison Br. 12.

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inverters and then on to the grid. With the battery, Broadview
can deliver more power to the grid than it could without it.
C. FERC’s Decision
In 2019, Broadview asked FERC to certify it as a “small
facility.” It argued that its “power production capacity” was
not greater than 80 megawatts because its inverters can send
only 80 megawatts to the grid at once.14
FERC initially denied Broadview’s application, but it
reversed course on rehearing.15 According to FERC, “power
production capacity” means the “maximum output that the
facility can produce for the electric [grid].”16
Two intervenors, NorthWestern Energy and the Edison
Electric Institute, petitioned for this Court’s review. If
14 16 U.S.C. § 796(17)(A)(ii).
Because Broadview is more than one mile apart from the other
facilities in the Montana Complex, FERC analyzes it separately
under the small-facility rule. 18 C.F.R. § 292.204(a)(1)-(2); see also
Order re. Broadview Solar III, 2021 WL 3641570 (Aug. 13, 2021)
(accepting withdrawal of an application for small-facility status for
another plant in Montana Complex).
15 The majority repeatedly says that FERC has interpreted the Act
“consistently” over the years. See Majority Op. 3, 12. But FERC’s
interpretation was not even consistent from hearing to rehearing in
this case. See id. at 6 (before reversing itself on rehearing, FERC
“denied Broadview’s application for certification, concluding that
the facility exceeded the 80 MW statutory limit for ‘power
production capacity’” by “finding . . . that the relevant capacity was
that of the solar array — 160 MW”); id. at 13 (“FERC’s initial
decision in this case repudiated its ‘send out’ approach, only to revert
on rehearing to its longstanding reading of the statute.” (cleaned up)).
16 JA 201.

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Broadview is a small facility, the Public Utility Act’s
mandatory-purchasing rule will force NorthWestern and some
of Edison’s members to buy Broadview’s power — even if
they don’t need it.
In 2023, this court denied the intervenors’ petitions.
Applying Chevron v. Natural Resources Defense Council,17 it
held that the Public Utility Act’s terms “facility” and “power
production capacity” were ambiguous and that FERC’s
interpretation was reasonable. In dissent, I argued that the
Public Utility Act unambiguously precludes FERC’s
interpretation.
NorthWestern and Edison Electric petitioned for certiorari.
Before deciding whether to grant the petition, the Supreme
Court overruled Chevron in Loper Bright Enterprises v.
Raimondo.18 The Court then granted the petition, vacated our
judgment, and remanded for further consideration in light of
Loper Bright.19
Because I concluded last time around that FERC’s
interpretation conflicted with the Act’s unambiguous meaning,
my analysis today looks a lot like my analysis then. Even
before the Supreme Court overruled Chevron, absence of
statutory ambiguity meant that FERC deserved no Chevron
deference, so I applied what I believed to be the best reading of
the statute. Now that no agency gets Chevron deference and
we are required to always apply the best reading of the statute,
I once again would grant the intervenors’ petitions.
17 467 U.S. 837 (1984).
18 603 U.S. 369 (2024).
19 Edison Electric Institute v. FERC, 144 S. Ct. 2705 (2024).

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II. Broadview Is Not a “Small Facility”
Broadview is not a “small facility” under the Public Utility
Act because its “power production capacity” is greater than 80
megawatts.
A. “Facility”
Start with the term “facility.”20 A facility is “something . . .
that is built, installed, or established to serve a particular
purpose.”21 The statute’s focus on a “facility” suggests that we
should assess the production capacity of a power plant as a
whole, not the capacity of an individual component.
That rules out a few possibilities.
First, it tells us that we should not look only at the capacity
of Broadview’s 160-megawatt solar array. That approach
would ignore the facility’s other components — for instance,
the inverters that limit the array’s output to the grid. (On this,
the majority and I agree.)
Second, it tells us that we should not exclude the power
used to charge the facility’s battery. The battery is part of the
facility. So refusing to count power that the solar array sends
to the battery fails to give full meaning to the word “facility.”
(On this, the majority and I disagree.)
FERC says we shouldn’t count power sent to the battery
because it is “not useful to anybody.”22 But a battery like
Broadview’s lets a solar facility send power to the grid at times
20 16 U.S.C. § 796(17)(A).
21 Facility (def. 4b), Webster’s New Collegiate Dictionary (1977).
22 See Oral Arg. Tr. 31.

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7
when it otherwise could not. By allowing the facility to deliver
power at night, the battery “increase[s] [Broadview’s] ability
to provide reliable and/or timely service to . . . customers.”23
The battery power also makes Broadview more efficient.
A solar-power facility without a battery sends to the grid
“approximately 25 to 30 percent” of the maximum power its
array could theoretically generate each day.24 With the battery,
Broadview sends “approximately 35 to 40 percent,”25 because
it is “capable of sustaining its maximum output for additional
hours in the day.”26 That increased efficiency makes the
facility more profitable.27
The power on the battery is useful to Broadview’s
customers, too. It’s stored on the battery for their later use.
True, Broadview’s customers aren’t using the power stored on
the battery in that moment. Nor is the power yet available for
their use. But the statute doesn’t direct us to the moment of use
or availability. It directs us to the moment of production.
In short, the battery power is quite useful. It lets Broadview
make more money by prolonging its maximum output. And it
will eventually go out to Broadview’s customers for their use.
23 JA 54 (Pasley Affidavit).
24 Id.
25 Id.
26 JA 23.
27 See Christopher Cerny, A Broad View of Broadview Solar: How
FERC’s Whiplash-Inducing Orders Expand the Scope of PURPA, 23
Minn. J.L. Sci. & Tech. 363, 406 (2022).

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B. “Power Production Capacity”
Turn next to the phrase “power production capacity.”
1. “Power”
Power means “a source or means of supplying energy,
especially[ ] electricity.”28 “Power” includes both DC power
and AC power.29 So both the DC power used to charge the
battery and the AC power sent directly to the grid count as
“power.”
Yet FERC claims that only the 80 megawatts of AC power
sent to the grid should count as Broadview’s power-production
capacity.30 That adds an atextual limit that Congress didn’t
adopt. The Public Utility Act says “power production
capacity,” not “AC power production capacity.” And Congress
is perfectly capable of saying “AC” when it wants to.31
28 Power (def. 6a), Webster’s New Collegiate Dictionary (1977).
29 See Chemeheuvi Tribe of Indians v. Federal Power Commission,
489 F.2d 1207, 1217 (D.C. Cir. 1973) (discussing history of power
transmission).
30 Cf. Majority Op. 16 (“we hold that section 796(17)(A) is best read
to refer to the maximum amount of AC power a facility can deliver
to the electrical grid at any one time”).
31 See, e.g., 26 U.S.C. § 48E(a)(2)(A)(ii) (defining a “qualified
facility” as one “with a maximum net output of less than 1 megawatt
(as measured in alternating current))” (emphasis added).

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2. “Production”
After “power” comes “production.” To “produce”
something is to “bear, make, or yield something,” or to “cause
[it] to accrue.”32 Another apt synonym is to “generate.”33
Broadview creates the power sent to its battery; it causes
that power to accrue. Before the sun’s rays hit Broadview’s
array, the battery is empty. It is charged when the facility
converts solar energy into useful power. If Broadview did not
“produce” the power used to charge the battery, what did?34
Consider what happens when the battery charges.
Broadview uses a lithium-ion battery. Charging that battery
prompts a chemical reaction, causing lithium ions to move
within the battery.35 Without power, that chemical reaction
could not happen. So Broadview must “produce” the power
used to charge the battery.
32 Produce (def. 6), Webster’s New Collegiate Dictionary (1977).
33 See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1171-72 (2021)
(noting the “close[ ] connect[ion]” between the verb “produce” and
the noun “generator”).
34 Some power at facilities like Broadview is lost to inefficiencies
during production. FERC allows power plants to deduct those
“electrical losses” from their power production capacity. See JA 210.
So if Broadview had a 160-megawatt array, 80-megawatt inverters,
and no battery, it would count as a “small facility” — albeit an
inefficient one that loses half of its potential output during
production.
35 How Does a Lithium-Ion Battery Work?, Energy.gov (Sept. 14,
2017), perma.cc/CUA8-Y9UK (during charging “[l]ithium ions are
released by the cathode and received by the anode”).

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3. “Capacity”
In the statute’s context, “capacity” means “the maximum
amount of power that the facility can produce.”36
But here, FERC rewrites the statute. It says “capacity”
includes only the power that a facility supplies to the electric
grid. Yet that changes “power production capacity” to “power
delivery capacity.” And the word “production” means
something different from “delivery.”37
FERC’s interpretation is at odds not only with the meaning
of the statute but also with a concession FERC made at oral
argument. There it said that “power production capacity”
would likely include power never delivered to the grid if it is
used “on site” for a “useful” purpose like powering an on-site
factory.38 But if so, “power production capacity” cannot mean
36 Solar Energy Industries Association v. FERC, 59 F.4th 1287, 1292
(D.C. Cir. 2023); see also Capacity (def. 1c), Webster’s New
Collegiate Dictionary (1977) (defining “capacity” as “maximum
production or output”).
37 See Deliver (def. 5), Webster’s New Collegiate Dictionary (1977).
(“[T]o send . . . to an intended target or destination.”).
FERC conflated “production” and “delivery” in its rehearing order,
although its counsel wisely retreated from that approach on appeal.
Compare JA 201 (FERC: “ ‘ production’ and ‘delivery’ . . . are
overlapping”), with Oral Arg. Tr. 33 (FERC: “we’re not talking
about delivery”); id. at 37 (“[Y]ou’re not depending on a conflation
of the words production and delivery — right? [FERC:] Correct.”).
38 Oral Arg. Tr. 30; but see Majority Op. 16 (“we hold that
section 796(17)(A) is best read to refer to the maximum amount of
AC power a facility can deliver to the electrical grid at any one
time”); id. at 16 (“It is undisputed that power production capacity
refers to the amount of power that a facility produces to the grid at a
given time.”).

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only “the amount of power that a facility produces to the grid
at a given time.”39
FERC’s concession highlights the problem with FERC’s
decision in this case: Charging a battery like Broadview’s is a
useful purpose. Far more salient than whether power produced
by a facility goes straight to the grid is whether the power is
sent by the facility to people who will use it. They could be the
owners of an on-site factory, operators of a next-door data
center, or the purchaser of energy that was stored in the battery
before being sold on the grid. In all three instances, the
produced power has a useful purpose, so in all three instances,
the produced power should — by FERC’s own reasoning —
count toward a facility’s “capacity.”
Broadview argues that the words “capacity” and
“production” carried a “specialized industry usage” when
Congress passed the Public Utilities Act. But Broadview does
not provide a single technical or specialized dictionary that
defines “power production capacity” as “power delivery
capacity.” FERC quotes the Department of Energy for a
“technical, industry-specific definition of ‘capacity.’”40 But
FERC does not say when the Department published the
definition, nor does it provide any evidence that Congress
intended to incorporate it into the Act. Though Congress
sometimes uses terms that carry a specialized meaning, the
general rule is that “ordinary meaning” controls absent
evidence to the contrary.41 And “FERC has now issued three
39 Majority Op. 16 (emphasis added).
40 FERC Br. 10.
41 Heating, Air Conditioning & Refrigeration Distributors
International v. EPA, 71 F.4th 59, 67-68 (D.C. Cir. 2023).

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orders and filed three appellate briefs, none of which contain a
single dictionary definition of ‘production.’”42
C. Broadview’s “Power Production Capacity”
Putting “power” and “production” and “capacity”
together, “power production capacity” is the maximum amount
of usable power that it can produce at a given moment. For
Broadview, that means power that reaches the grid. Sometimes
Broadview’s power goes straight from the solar array to the
inverters to the grid — and sometimes the power makes a
detour from the solar array to the battery before going to the
inverters and to the grid.43
With both routes, Broadview has the capacity to produce
130 megawatts of power for the grid. At the moment of
generation, in optimal daytime conditions, 80 megawatts of AC
power can be delivered to the inverters and grid immediately,
and 50 megawatts of DC power can be stored for later delivery
at night.44 Because “power” includes AC and DC power,
Broadview’s power production capacity is the sum of the two:
80 + 50 = 130
42 FERC Supp. Reply 2-3.
43 See Majority Op. 12 (“the facility can send out previously
generated power stored in the battery”).
44 The record is unclear on the amount of power the battery can
receive from the array. But the parties agree that the battery can take
in up to 50 megawatts. Compare Edison Br. 10 n.3 (“The Broadview
Project’s battery can be charged at the same rate as it
discharges — i.e., it can receive and send out 50 megawatts of
energy each hour.”), with FERC Br. 14 (“[U]p to 50 megawatts of
power is diverted to battery storage for later release.”).

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Contrary to FERC’s argument, this calculation does not
double-count power stored in batteries. I count usable power
only once — when it is produced by the solar array and sent
either to the inverters and grid or to the battery. In contrast,
FERC views Broadview’s power production capacity as 38%
lower45 than it actually is, based on a distinction (found
nowhere in the statutory text) between (a) power sent straight
to the inverters and grid and (b) power sent first to the battery
before it goes to the inverters and ends up on the grid.
In short, the 50 megawatts produced by Broadview for
usable energy (and sent first to the battery) should be counted
just like the other 80 megawatts produced by Broadview for
usable energy (and not sent first to the battery). That gives
Broadview a power production capacity of 130 megawatts.
And because the power production capacity of a “small
facility” cannot exceed 80 megawatts, Broadview is not a
“small facility.”46
III. Conclusion
This case has come before this court twice. Despite its plea
for Chevron deference, FERC was wrong before, and now that
Chevron deference is verboten, FERC remains wrong today.
45 50 ÷ 130 = 0.38
46 16 U.S.C. § 796(17)(A).
I do not share the majority’s confidence that it serves the Public
Utility Act’s “statutory purpose” (Majority Op. 11) and “Congress’s
stated goal of boosting small-scale solar power facilities” (id. at 12)
to confer a market advantage on the component (Broadview I) of a
complex (the Montana Complex) that can deliver 620 megawatts of
power and that was built at a cost of at least $2 billion by one of the
nation’s largest standalone energy storage companies, which was
founded by venture capitalists who have raised $47 billion.

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Because Broadview can send 80 megawatts to the grid while it
simultaneously sends 50 megawatts to its battery before later
sending those 50 megawatts to the grid, Broadview’s facility is
capable of producing more than 80 megawatts of power —
which makes Broadview too large to be a “small facility.”
I would grant the petitions, vacate the rehearing orders, and
remand to FERC for reconsideration.47
47 Like last time, I agree with the majority that Solar Energy lacks
standing to challenge FERC’s denial of its motion to intervene.

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