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Swecker v. Midland Power Cooperative

United States District Court, District of Columbia

May 17, 2017

GREGORY SWECKER, et al Plaintiffs,
v.
MIDLAND POWER COOPERATIVE, et al Defendant.

          MEMORANDUM OPINION

          CHRISTOPHER R. COOPER United States District Judge.

         Plaintiffs 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.

         I. Background

         A PURPA

         Congress 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.

         FERC 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 § 824a-3(h)(2)(B).

         B. Plaintiffs' Dispute with Midland

         The 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.

         The 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).

         B. Procedural History

         The 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.

         II. Midland and CIPCO's Motion to Dismiss

         A. Legal Standard

         Midland 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 ...


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