December 9, 2025 Update: Following the D.C. Circuit’s September ruling, parties opted not to seek panel rehearing or en banc review. The deadline to petition the U.S. Supreme Court for certiorari expired on December 8, 2025, without any petitions for cert filed, thereby ending the potential for appeals of the decision.

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On September 9, 2025, the D.C. Circuit in Solar Energy Industries Association v. FERC affirmed FERC’s prior decisions in Broadview Solar, holding that a qualifying facility’s capacity under the Public Utility Regulatory Policy Act of 1978 (PURPA) is based on its “send-out capacity” or the maximum AC output of the facility to the grid, accounting for “all the facility’s components working together.”

Background

In a series of orders beginning in 2020, FERC considered whether the Broadview facility, consisting of a solar facility capable of producing up to 160 MW of DC power, a battery energy storage system capable of discharging 50 MW of DC power for up to four hours, and inverters with net capacity to turn the DC solar and battery power into 80 MW of AC power, exceeded PURPA’s 80 MW ceiling. FERC ultimately affirmed its long-standing view that the “power production capacity” of a qualifying facility is its “send-out capacity,” and therefore the Broadview facility was an 80 MW qualifying facility because its send-out capacity was limited by its inverters to 80 MW AC.

The dispute initially came before the D.C. Circuit in 2023 and the D.C. Circuit at that time affirmed FERC’s interpretation as reasonable under the Chevron standard of review. Following the 2024 U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo, which overturned Chevron, the Supreme Court remanded the case back to the D.C. Circuit to analyze the definition of “power production capacity” without deference to FERC.

Holdings

On remand, the D.C. Circuit again affirmed FERC’s decision and held that “a small power production facility’s ‘power production capacity’ refers to its maximum net output of AC power to the electrical grid at any given point in time.”  The D.C. Circuit reasoned that the statute refers to the “facility” rather than any particular subcomponent and, therefore, that the “power production capacity” at issue is the capacity of all the components as they work together to produce grid-usable AC power.  The D.C. Circuit’s decision specifically addressed the battery components of the facility as well, explaining that although the battery “allows the facility to spread over more hours of the day the energy the solar panels generate only when the sun shines, enabling the facility to more consistently deliver AC power to the grid,” the facility at no time can send out more than the 80 MW statutory maximum.

Next Steps

The D.C. Circuit’s decision affirms FERC’s view that the power production and energy storage components of a small power production qualifying facility may have a DC capacity exceeding 80 MW, so long as the facility’s ability to send power to the grid is limited to 80 MW AC by its inverters.  However, the petitioners may petition for panel rehearing or en banc review within the D.C. Circuit and may ultimately seek certiorari from the Supreme Court.  Therefore, while FERC’s “send-out capacity” interpretation stands for now, the Broadview saga may not yet be finished.