## Facts

- FERC issued Order No. 888 requiring public utilities that transmit electric energy in interstate commerce to file open-access, non-discriminatory transmission tariffs using a pro forma tariff unless a deviation is shown to be consistent with or superior to it.
- Northern States Power Company (Minnesota and Wisconsin entities) filed revisions to its open-access transmission tariff, including proposed provisions governing curtailment priorities during transmission constraints.
- In a set of administrative orders, FERC accepted parts of the filing but rejected NSP’s curtailment-priority language, instituted an investigation and hearing procedures, and required closer conformity with the Order No. 888 pro forma tariff.
- FERC found NSP’s curtailment terms insufficiently specific, reliant on general references to unexplained procedures, unsupported as consistent with or superior to the pro forma tariff, and potentially misleading to customers.
- NSP petitioned for review, arguing FERC’s curtailment requirements exceeded federal jurisdiction by intruding on state-regulated retail (native-load) service and reliability obligations and that FERC’s rejection was arbitrary and capricious.

## Issues

1. Whether FERC exceeded its Federal Power Act jurisdiction by regulating curtailment priorities through an open-access transmission tariff despite indirect effects on state-regulated retail (native-load) service.
2. Whether FERC acted arbitrarily, capriciously, or contrary to law in rejecting NSP’s proposed curtailment provisions and requiring conformity with, or justification for deviation from, the Order No. 888 pro forma tariff.
3. Whether FERC adequately explained and supported its conclusion that NSP’s proposed curtailment language was unjust, unreasonable, unduly discriminatory, or otherwise inconsistent with Order No. 888.

## Decision

- The court denied NSP’s petitions for review and upheld FERC’s curtailment-related orders.
- FERC acted within its jurisdiction to regulate interstate transmission service and the mechanics of curtailment as part of ensuring open-access, non-discriminatory transmission.
- FERC reasonably rejected NSP’s curtailment provisions based on vagueness, failure to justify deviation from the pro forma tariff, and concerns that the language could mislead customers.
- FERC’s determinations were supported by substantial evidence and were not arbitrary or capricious under APA review.

## Legal Principles

- Under the Federal Power Act, FERC has authority over interstate transmission and wholesale electric sales; regulation of transmission curtailment protocols falls within that authority even if it incidentally affects retail service considerations.
- Order No. 888 permits deviations from the pro forma open-access tariff only if the utility demonstrates the deviation is consistent with or superior to the pro forma terms; the proponent bears the burden of justification.
- Open-access transmission tariffs must state curtailment priorities with sufficient clarity and specificity to permit customers to understand how constraints will be managed and to prevent undue discrimination.
- Courts review FERC orders under the APA’s arbitrary-and-capricious standard and substantial-evidence requirement, giving deference to FERC’s technical and policy judgments in transmission operations.

## Conclusion

The Eighth Circuit affirmed FERC’s authority to require transparent, non-discriminatory curtailment priorities in open-access transmission tariffs and upheld FERC’s rejection of NSP’s proposed curtailment language for lack of specificity and failure to justify deviation from Order No. 888’s pro forma tariff.


N. States Power Co. v. FERC, 176 F.3d 1090 (8th Cir. 1999)