The U.S. Court of Appeals for the D.C. Circuit has dismissed the petition for review filed by Market Monitoring Analytics LLP (IMM), the independent market monitor for the PJM Interconnection grid. The court ruled that IMM lacked the necessary legal standing to challenge the Federal Energy Regulatory Commission’s (FERC) decision upholding PJM’s policy change barring IMM from attending meetings of the PJM Liaison Committee.
The judges concluded that IMM failed to demonstrate a concrete injury required under Article III of the Constitution for the court to hear the case, even assuming IMM was correct that its exclusion violated PJM’s operating tariff.
The Background: Exclusion from the Liaison Committee
PJM Interconnection manages the wholesale electricity market across thirteen states and the District of Columbia. As required by FERC regulations, PJM employs an Independent Market Monitor (IMM) to audit market conditions and ensure fairness.
For some time, IMM was permitted to observe meetings between the PJM Board of Managers and the Liaison Committee. This Committee is a nonvoting body designed to foster communication between the Board and PJM Members (utilities and end-use customers). While the Committee’s charter restricts attendance to these members, PJM had previously allowed non-members like IMM to sit in as “listen-only observers.”
This practice changed in September 2018 when PJM’s Members Committee voted to enforce the charter strictly. Because IMM is not a utility or an end-use customer, it was barred from attending.
IMM challenged this exclusion before FERC, arguing that the Liaison Committee qualified as a “stakeholder working group” under Section IV.G of the PJM Tariff, which grants IMM the right to participate. FERC disagreed, ruling that Section IV.G only applies to processes involving proposed revisions to tariffs or market design, not to the nonvoting Liaison Committee. IMM then petitioned the D.C. Circuit for review of FERC’s order.
The Core Issue: Article III Standing
The D.C. Circuit, in an opinion written by Judge Karen LeCraft Henderson, focused entirely on whether IMM had standing to bring the case. To establish standing, a petitioner must show an “injury in fact” that is traceable to the respondent (FERC) and redressable by the court. The injury must be “concrete and particularized” and “actual or imminent.”
The court noted that this was not the first time IMM’s standing was questioned. In a prior case, *Old Dominion Electric Cooperative*, the court found IMM lacked standing to intervene in a dispute over a price-cap provision because the outcome did not affect IMM’s core ability to monitor the market and report its findings.
The current ruling clarifies that *Old Dominion* does not create a blanket rule against IMM challenging any tariff violation. However, IMM still needed to prove a distinct, concrete injury stemming from its exclusion from the Liaison Committee meetings.
No Concrete Harm to Organizational Interests
IMM advanced two main theories for how its exclusion constituted a concrete injury: a deprivation of information and a denial of the opportunity to respond to performance complaints. The D.C. Circuit rejected both.
Regarding the loss of information, IMM relied on the *Havens Realty* standard, which sometimes allows organizations to establish standing based on informational harm. The court distinguished this case, noting that *Havens* typically applies when a statute explicitly creates a right to information. Section IV.G of the PJM Tariff, which IMM cited, only grants IMM the right to “participate” in stakeholder processes—it doesn’t guarantee access to meeting minutes or records.
Crucially, the court pointed to the regulations requiring PJM to provide IMM with access to all necessary market data under Section V of the PJM Tariff. IMM admitted that it already had access to the core market-related data required for its monitoring functions. Since IMM could not allege that PJM was withholding the essential operational data (Section V information) because of the exclusion, the informational injury theory failed.
On the second claim—the inability to hear and respond to complaints about its performance—the court found the threat speculative. The court pointed out that IMM’s service agreement already provides a guaranteed mechanism: if the PJM Board finds IMM’s performance inadequate, IMM receives detailed written notice and a full opportunity to defend itself. The court found it unlikely that the Liaison Committee would lodge a complaint that the Board would fail to relay through this formal, established process.
Failure to Show Resource Drain
The second major hurdle for organizational standing, derived from *Havens Realty* and subsequent cases, requires the organization to show that it has “used its resources to counteract” the alleged harm.
IMM vaguely claimed it had to “expend resources” to indirectly figure out what was being discussed in the inaccessible meetings. The court found this assertion too speculative. Citing precedent, the opinion stated that speculation is usually fatal to standing. Because IMM could not identify specific programmatic expenditures or a demonstrable “drain on resources” caused by missing the Liaison Committee discussions, it failed the second prong of the organizational standing test.
Concurring Opinion on the Injury Prong
Senior Circuit Judge Edwards concurred in the judgment, agreeing that IMM failed on the second prong (resource drain). However, Judge Edwards disagreed with the majority’s analysis regarding the *first* prong—whether IMM suffered an injury to its organizational interests.
Judge Edwards argued that IMM *did* sufficiently allege an injury by claiming that its exclusion from the meetings directly interfered with its “core business activities” of monitoring market design proposals discussed at those sessions. He contended that this interference with core, non-advocacy functions should satisfy the first element of organizational standing under *Havens Realty*, regardless of whether IMM had a legal right to the specific information shared.
Despite this disagreement on the nature of the initial injury, Judge Edwards agreed with the majority that IMM failed to provide evidence of a “consequent drain on resources,” leading him to concur in the final decision to dismiss the petition.
The dismissal means the D.C. Circuit never reached the merits of IMM’s argument regarding whether the Liaison Committee meetings were indeed covered by the PJM Tariff’s participation clause.