As we previously reported, on May 23, 2014, the D.C. Circuit vacated FERC’s Demand Response Order No. 745,  holding that the order (1) exceeded FERC’s jurisdiction, and (2) was arbitrary and capricious, particularly in its failure to address Commissioner Moeller’s arguments that the order overcompensates demand response resources.1  FERC, several States, and various industry representatives sought rehearing en banc, but the court denied all petitions for rehearing on September 17, 2014.2

On October 20, 2014, the D.C. Circuit granted FERC’s motion to stay issuance of the mandate in the consolidated cases regarding Order No. 745, pending FERC and the Solicitor General’s consideration of whether to file a petition for writ of certiorari with the Supreme Court.  The D.C. Circuit stated that it will withhold issuance of the mandate in these cases until December 16, 2014, which constitutes the 90-day maximum allowable stay period under the Federal Rules of Appellate Procedure and D.C. Circuit Rules.

The court denied the motion to stay filed by various intervenors, including the Coalition of MISO Transmission Customers, PJM Industrial Customer Coalition, EnerNOC, Inc., Viridity Energy, Inc., American Forest & Paper Association, EnergyConnect, Inc., Wal-Mart Stores, Inc., and Steel Producers.  The order notes that Judge Edwards would have granted the intervenors’ motion.