United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
Gregory and Beverly Swecker own and operate a wind turbine on
their Iowa farm. They have brought this pro se
action against two Iowa electric utilities and the Federal
Energy Regulatory Commission ("FERC") under the
Public Utility Regulatory Policies Act of 1978
("PURPA"). Under PURPA, FERC must promulgate rules
requiring electric utilities to purchase electricity from
small generation facilities like Plaintiffs' wind
turbine. The statute limits the price that these utilities
must pay for the electricity, such that it cannot exceed the
utility's "avoided cost"-the price at which the
electricity could have been acquired from an alternative
source. The Sweckers allege that the Defendant utilities have
violated several FERC regulations related to the calculation
of avoided cost, and that FERC has failed to enforce these
regulations against the utilities. Defendants have moved to
dismiss the Complaint. Because the Court lacks personal
jurisdiction over the Iowa-based utilities and subject matter
jurisdiction over the Sweckers' claims against FERC, it
must dismiss this case in its entirety.
enacted PURPA in 1978 in response to a nationwide energy
crisis. FERC v. Mississippi. 456 U.S. 742, 745 (]
982). Congress sought to, among other things, encourage the
development of renewable energy sources. See 16 U.S.C. §
824a-3(a). In furtherance of this objective, PURPA directs
FERC to promulgate rules that require electric utilities to
purchase electricity from "qualifying cogeneration
facilities and qualifying small power production
facilities." Id.; see also 18 C.F.R.
§ 292.303(a) (FERC rule requiring such purchases unless
a utility qualifies for an exemption under 18 C.F.R. §
292.309 or § 292.310). The rates for these purchases
shall not "exceed[ ] the incremental cost to the
electric utility of alternative electric energy."
Id. at § 824a-3(b). These rates are commonly
referred to as a utility's "avoided cost."
Midland Power Co-op. v. FERC. 774 F.3d 1, 3 (D.C.
Cir. 2014). FERC regulations provide that electric utilities
must submit relevant data to the state regulatory authority
so that the "avoided cost" can be determined. 18
C.F.R. § 292.302.
may commence an enforcement action "against any State
regulatory authority or nonregulated electric utility"
to ensure compliance with PURPA and the rules promulgated
thereunder, See 16 U.S.C. § 824a~3(h)(1). PURPA also
provides that any electric utility or qualifying facility may
petition FERC to enforce these statutory and regulatory
requirements. If FERC declines to commence an enforcement
action, the petitioner may then "bring an action in the
appropriate United States district court to require such
State regulatory authority or nonregulated electric utility
to comply with such requirements." Icf at §
Plaintiffs' Dispute with Midland
Complaint alleges the following facts. The Sweckers own and
operate a wind turbine on their Iowa farm. Compl. ¶ 9.
The turbine has been a "qualifying facility" under
PURPA since 1999. Id. at ¶ 10. Midland Power
Cooperative ("Midland") is an electric utility in
Greene County, Iowa. Id. at ¶ 12. Pursuant to
PURPA, Plaintiffs have been selling excess power from their
wind turbine to Midland. kf Midland buys the rest of its
electricity from Central Iowa Power Cooperative
("CIPCO"). Id. at ¶¶ 13-15.
Thus, under PURPA's definition of avoided cost, the
amount that Midland must pay the Sweckers for electricity
depends on the price at which Midland purchases its
electricity from CIPCO. Id.
Sweckers have long disputed Midland and CIPCO's
calculation of avoided cost, asserting that Midland is
required to purchase electricity from them at a higher price.
The Sweckers have repeatedly, and unsuccessfully, petitioned
FERC to initiate an enforcement action against both Midland
and CIPCO. See, e.g., Swecker y. Midland Power
Coop., 149 FERC ¶ 61236 (2014); Swecker v.
Midland Power Coop.. 147 FERC ¶ 61, 114 (2014);
Swecker v. Midland Power Coop.. 142 FERC ¶
61.207 (2013); Swecker v. Midland Power Coop.. 136
FERC ¶ 61085 (2011). They have also unsuccessfully sued
Midland and CIPCO in federal court for violating FERC rules
enacted under PURPA. See Swecker v. Midland Power
Coop., 2013 WL 11311233 (S.D, Iowa Dec. 30, 2013).
Sweckers commenced this pro se action on July 11,
2016 after FERC once again declined to initiate an
enforcement action against Midland and CIPCO. Swecker v.
Midland Power Coop.. 155 FERC ¶ 61, 237 (2016).
While the Complaint does not state a specific cause of action
against any of the Defendants, it alleges that Midland and
CIPCO have violated FERC regulations by miscalculating
Midland's avoided cost, and further contends that FERC
has unlawfully failed to enforce its own regulations against
Midland and CIPCO. The Court will construe the Sweckers'
claims against Midland and CIPCO as an action under 16 U.S.C.
§ 824a-3(h)(2)(B) to compel compliance with FERC
regulations. The Court will construe the Sweckers' claims
against FERC as an action under § 702 of the
Administrative Procedure Act, which provides that "[a]
person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof." 5 U.S.C. § 702. Midland and CIPCO filed
ajoint motion to dismiss on September 30, 2016. FERC filed a
motion to dismiss on October 14, 2016.
Midland and CIPCO's Motion to Dismiss
and CIPCO contend, among other things, that the Court lacks
personal jurisdiction over them. See Midland and CIPCO's
Mot. to Dismiss ("Midland and CIPCO MTD") 1-2.
Under Federal Rule of Civil Procedure 12(b)(2), a parry may
move to dismiss a complaint for lack of personal
jurisdiction. Fed.R.Civ.P. 12(b)(2). While the Supreme Court
has held that "apro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers, " Enckson
v. Pardus, 551 U.S. 89, 914 (2007) (per curiam), the
plaintiff nonetheless bears the ...