On June 13, 2025, the D.C. Circuit Court of Appeals upheld an earlier decision from the Federal Energy Regulatory Commission (“FERC”) to deny a generator’s petition seeking reimbursement from the Western Area Power Administration (“WAPA”) for network upgrade costs required to interconnect its wind farm into WAPA’s transmission system. In doing so, the D.C. Circuit narrowed FERC’s authority over non-jurisdictional transmitting entities such as WAPA under Section 211A of the Federal Power Act (“FPA”) by limiting the definition of what it means for an interconnection customer to receive “transmission services” under the statute.
Kimball Wind, the operator of a 30MW wind farm in Nebraska, entered into a Power Purchase Agreement (“PPA”) with the Municipal Energy Agency of Nebraska (“MEAN”) to upgrade its wind facility in exchange for MEAN purchasing its generation through WAPA’s transmission system. WAPA’s preliminary study of the new generation’s impact on the system concluded that safe interconnection necessitated substantial network upgrades, specifically through a $6.5 million expansion to an intermediary substation. Of that amount, Kimball Wind ultimately paid roughly $5.9 million in network upgrade costs.
Kimball Wind petitioned FERC under FPA Section 211A to compel WAPA to reimburse its contribution to the substation expansion through either cash or a third-party rate-crediting agreement. FERC denied the request, deeming in part that Kimball Wind’s request was not a request for an “order for transmission services” and was accordingly outside the scope of Section 211A. On appeal to the D.C. Circuit, U.S. Circuit Judge J. Michelle Childs, writing for a unanimous three-judge panel, clarified that orders compelling non-jurisdictional transmission entities to provide transmission services to petitioners are “the only type of order [FERC] may issue under [S]ection 211A.” The court suggested that Kimball Wind’s reimbursement request for network upgrade costs that the petitioner had already financed would not impact whether Kimball Wind received transmission services. Therefore, FERC had no authority to grant Kimball Wind’s petition, and the case was denied further review.
Practical Impacts of the D.C. Circuit’s Decision
The Kimball Wind decision has important implications for both non-jurisdictional transmission providers and interconnection customers, even if the probability that FERC will exercise its discretionary Section 211A authority is already quite low. Indeed, FERC has only once exercised this authority over a non-jurisdictional transmission entity since the section was added to the FPA in 2005. In that proceeding, FERC required Bonneville Power Administration (“BPA”), another federal non-jurisdictional transmission entity, to modify the oversupply protocols in its Open Access Transmission Tariff (“OATT”) following claims of unduly discriminatory behavior in how BPA distributed its transmission capacity. In that proceeding, customers were not seeking reimbursement from BPA for network upgrades deemed necessary to receive transmission capacity like in Kimball Wind, but instead the case focused on how the non-jurisdictional transmission entity decided to allocate constrained transmission capacity in the first instance.
While the D.C. Circuit appears to provide additional clarity regarding how FERC can use Section 211A, the court’s holding centers around reimbursement for network upgrades that the interconnection customer had already financed prior to the petition. The holding, therefore, leaves open the question as to whether FERC can exercise its Section 211A authority to modify how the transmission entity allocates network upgrades before the interconnection customer covers the costs.
For further information or to discuss how DWGP may be of assistance with regards to navigating Federal Power Act Section 211A issues, please reach out to Lisa Gast or Sean Neal.
Article By DWGP Summer Associate Griffin Krawitz – William & Mary School of Law, May 2026
