The opinion
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2003 Decided April 25, 2003
No. 02-1002
PACIFIC GAS AND ELECTRIC COMPANY,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
NORTHERN CALIFORNIA POWER AGENCY, ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
John S. Moot argued the cause for petitioner. With him on
the briefs was Kathryn Kavanagh Baran.
Timm Abendroth, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
the brief were Cynthia A. Marlette, General Counsel, and
Dennis Lane, Solicitor.
Daniel I. Davidson argued the cause for customer interve-
nors. With him on the brief were Robert C. McDiarmid,
Lisa G. Dowden, Peter J. Hopkins, Glen L. Ortman, Michael
N. McCarty, Wallace L. Duncan, James D. Pembroke, Rich-
mond F. Allan and Michael Postar. Harvey L. Reiter
entered an appearance.
Robert S. Greenspan and Christine N. Kohl, Attorneys,
U.S. Department of Justice, were on the brief for federal
intervenors.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Pacific Gas and Electric
Co. disputes the meaning of two agreements between it and
Western Area Power Administration, a federal entity that
operates hydroelectric projects in the West. The agreements
(a contract and an amendment to the contract) provide ‘‘load
shaping’’ for Western, i.e., give it access to PG&E’s non-hydro
power to balance Western’s hydro supplies and enable it to
offer customers firm service; and they give PG&E access to
Western’s excess hydro power at prices lower than PG&E’s
average costs.
Under the agreements, the rate that PG&E charges West-
ern for energy is based on PG&E’s costs for thermal genera-
tion, i.e., producing power from its fossil fuel and nuclear
plants. These costs became less obviously suitable as mark-
ers when California restructured its energy market in 1996.
PG&E then divested itself of most of its generation facilities,
retaining only a single nuclear power plant and a small
number of gas-fired facilities. Although PG&E still produces
three times as much energy as Western requires, its remain-
ing plants are ill-suited to provide load-shaping services for
Western, and it now relies on market purchases (in whole or
3
in part) for the energy it supplies Western. It would like to be
able to charge Western the same price it pays.
The California restructuring also established an ‘‘Indepen-
dent System Operator’’ (‘‘ISO’’), to which PG&E turned over
the operation of its transmission facilities. As a result PG&E
is now billed for several new services. It would like to have
Western cover some of these costs.
Accordingly it filed a new rate schedule with the Federal
Energy Regulatory Commission under § 205 of the Federal
Power Act (‘‘FPA’’), 16 U.S.C. § 824d (2000), changing its
energy rates to reflect the new sources (which are currently
much more expensive) and its transmission rates to reflect
the new ISO costs. FERC accepted the proposal for filing
but suspended the rate increases for five months, as permit-
ted by the statute, and set the matter for an evidentiary
hearing. 95 FERC ¶ 61,273 (2001). As the right of a utility
to effect rate changes via § 205 may be overridden by a
contract between the parties, see Federal Power Commission
v. Sierra Pacific Power Co., 350 U.S. 348, 353 (1956); United
Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332
(1956), the initial—and fatal—issue was whether the agree-
ments between PG&E and Western barred the filing.
The ALJ ruled in favor of Western, finding such a bar.
She held that the agreements unambiguously precluded
PG&E from using § 205 to change energy rates except in
three specific circumstances, none of which applied. Pacific
Gas & Elec. Co. (‘‘ALJ Opinion’’), 96 FERC ¶ 63,043, at
65,282–91 (2001). As to transmission rates, she found that
PG&E had not complied with the contractual condition prece-
dent of participating in a ‘‘joint review’’ of relevant cost
information with Western. Id. at 65,292–93. FERC affirmed
in a very brief order, 97 FERC ¶ 61,082 (2001), and denied
PG&E’s petition for rehearing, 97 FERC ¶ 61,335 (2001).
As to the energy rates, we affirm. As to the transmission
rates, we remand the case for the Commission to reexamine
the joint review issue, on which the ALJ’s opinion muddled
the governing standard and failed to address seemingly sig-
nificant fact claims.
4
* * *
The controlling agreements are Contract No. 14–06–200–
2948A (the ‘‘Contract’’), executed July 31, 1967, and the
‘‘Energy Account No. 2 and Capacity Account Repurchase
Rate Letter Agreement’’ (the ‘‘Letter Agreement’’), dated
February 7, 1992. Article 32 of the Contract provides for
‘‘joint review’’ of the rates every five years, and, if the review
fails to yield agreement, allows either party to seek FERC
approval for changes. PG&E invoked Article 32 in filing
under § 205 of the FPA for changes to both its energy and
transmission rates. As to energy rates, the issues revolve
entirely around new restrictions that FERC believed were
added by the Letter Agreement; as to transmission rates,
they revolve entirely around Article 32’s joint review process.
In reviewing FERC’s interpretation of contracts we first
determine de novo any unambiguous meaning of the contract;
deference comes into the picture only if we find an ambiguity,
in which case we defer to any reasonable resolution by
FERC. Appalachian Power Co. v. FERC, 101 F.3d 1432,
1435, 1437 (D.C. Cir. 1996); cf. Chevron U.S.A. Inc. v. Natu-
ral Res. Def. Council, 467 U.S. 837, 842–43 (1984). Another
ambiguity-related rule, on which all parties here agree, is that
absent a finding of ambiguity parol evidence is inadmissible
(even to determine ambiguity). See, e.g., Appalachian Power
Co., 101 F.3d at 1435; cf. Appalachian Power Co. v. Fed.
Power Comm’n, 529 F.2d 342, 347–48 (D.C. Cir. 1976).
FERC’s findings of fact are conclusive if supported by sub-
stantial evidence. 16 U.S.C. § 825l(b) (2000).
* * *
Energy rates. The Letter Agreement totally revamped the
way energy rates are calculated under the Contract. Al-
though the Contract’s Article 32 provides for amendment via
§ 205, amendments of the Contract alone would be meaning-
less as to energy rates unless they could also bring about
changes in the Letter Agreement. Thus the key question is
whether the Letter Agreement itself limits PG&E’s authority
5
to use Article 32 to change the Letter Agreement’s energy
rate terms.
The key language is found in two paragraphs of § 33 of the
Letter Agreement:
Except as expressly provided herein, nothing in this
Letter Agreement shall be construed as affecting in any
way PG&E’s right to make unilateral application to the
FERC under Section 205 of the Federal Power Act and
pursuant to the Commission’s Rules and Regulations
promulgated thereunder to make [1] the changes in
rates, terms and conditions as set forth in Section A(10)
of Appendix A, and [2] Paragraph 11 of Appendix C, or
[3] to make changes to the service charges set forth in
Paragraph 19 as provided in Article 32 of [the Contract].
Otherwise, this Letter Agreement shall not be subject to
change pursuant to Section 205 of the Federal Power Act
unless agreed by the Parties.
Except as otherwise provided herein, nothing in this
Letter Agreement shall be construed as affecting in any
way the rights of Western or PG&E under the Federal
Power ActTTTT
Letter Agreement § 33 (emphasis and bracketed enumer-
ation added). We refer to the above as the first and second
paragraphs of § 33, although in fact there is an irrelevant
prior paragraph.
The ALJ found that this language unambiguously limits
PG&E’s right to file under § 205 for changes in the Letter
Agreement’s energy rates, leaving only the three listed in-
stances. PG&E agrees that it authorizes § 205 filings in
these instances, but argues that these § 205 rights are in
addition to rather than instead of the rights granted under
Article 32 of the Contract.
Rather than attempting to prove that its interpretation is
correct, PG&E directs most of its fire to the ALJ’s finding
that the Letter Agreement was unambiguous, a ruling that
barred admission of PG&E’s parol evidence. It first argues
that FERC acknowledged ambiguity by ordering a hearing
6
on the matter. But while a remand for a hearing may often
indicate that a contractual provision is ambiguous, it may
simply mean that it is difficult and complicated—as indeed it
is.
The listing of preserved § 205 rights in the first quoted
sentence of § 33 is clearly directed at preventing an implied
limitation of those rights. But it does not bode well for
PG&E’s other § 205 rights since they are not expressly
preserved and might elsewhere be expressly or impliedly
limited. The next sentence establishes that restriction: ‘‘Oth-
erwise, this Letter Agreement shall not be subject to change
pursuant to Section 205 of the Federal Power Act unless
agreed by the Parties.’’ This says rather clearly that PG&E
can use § 205 to change the Letter Agreement’s energy rate
computation methods only in the three enumerated catego-
ries.
PG&E argues that the clarity of that sentence is under-
mined by the first sentence of the next paragraph: ‘‘Except
as otherwise provided herein, nothing in this Letter Agree-
ment shall be construed as affecting in any way the rights of
Western or PG&E under the Federal Power ActTTTT’’ It
says that these two ‘‘otherwise’’ sentences ‘‘either cancel each
other out—as mirror images of one another—or they are
utterly ambiguous, thereby necessitating the consideration of
parol evidence respecting them.’’ Petitioner’s Opening Brief
at 26–27. PG&E’s argument would be on much stronger
footing if the second ‘‘otherwise’’ sentence lacked the opening
phrase, ‘‘Except as otherwise provided hereinTTTT’’ As it is,
the sentence acknowledges that other provisions in the Letter
Agreement affect the rights of the parties under the Federal
Power Act. That the second ‘‘otherwise’’ sentence begins a
new paragraph further suggests that it leaves in place the
prior paragraph’s explicit restriction of § 205 rights.
The two paragraphs invite a straightforward and internally
harmonious construction giving effect to each part. Cf. Mas-
trobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63
(1995). The ‘‘otherwise’’ sentence of the first paragraph
explicitly limits all § 205 rights to change the Letter Agree-
7
ment, with three enumerated exceptions; the ‘‘otherwise’’
sentence of the next paragraph assures retention of all FPA
rights but the ones specifically excepted. One of the rights
specifically excepted is the right of PG&E to make a § 205
filing for any kind of change other than the three listed.
There is no need for recourse to PG&E’s idea of mutual
cancellation or ambiguity.
Besides, § 33’s third specific authorization for § 205 fil-
ings—‘‘to make changes to the service charges set forth in
Paragraph 19 as provided in Article 32 of [the Contract]’’—
would be wholly redundant if Article 32 rights were preserved
in their entirety. PG&E responds that this clause is best
interpreted as providing a right to file under § 205 at any
time, i.e., free of Article 32’s provision that it may occur only
once ‘‘every five years.’’ But PG&E is wrong; the clause
states that the changes in question may be made ‘‘as provided
in Article 32,’’ indicating that the process is subject to Article
32’s restrictions. The specific incorporation of one subset of
Article 32 rights demolishes the argument that all Article 32
rights are preserved.
PG&E argues that various other provisions of the Letter
Agreement make that agreement’s effects on Article 32 am-
biguous. It points to the Letter Agreement’s opening sen-
tence, saying, ‘‘This letter agreement TTT is made consistent
with the intent of Article 32 of [the Contract]TTTT’’ PG&E
argues that it would make little sense to say that an agree-
ment is consistent with a clause that it intends to restrict.
But this clause introduces the Letter Agreement, and simply
states the source of authority to make the amendment—
Article 32’s provision that the Contract be ‘‘jointly reviewed,
and adjusted as appropriate.’’ It is not saying that that the
Letter Agreement in no way amends Article 32.
PG&E also points to § 31 of the Letter Agreement: ‘‘Ex-
cept as provided herein, nothing contained in this Letter
Agreement shall modify any provisions of [the Contract]. In
the event of a conflict between this Letter Agreement and
[the Contract], [the Contract] shall govern.’’ PG&E reasons
that these sentences should mean that unless a clause of the
8
Letter Agreement specifically amends the Contract, any con-
flict between the two agreements is resolved in favor of the
Contract. If PG&E means that any amendments of the
Contract must start, ‘‘We amend § x,’’ then PG&E is wrong.
The Letter Agreement created many new terms without
explicitly labeling each one an amendment of the Contract—
much less mentioning the specific provisions amended. If
PG&E means only that in the case of ambiguity regarding
whether the Letter Agreement changes something, the origi-
nal contract governs—a more appropriate interpretation of
the language—its argument takes it nowhere. Here, it is
clear that the Letter Agreement amended terms of the
original contract, though without introducing each change
with a drum roll.
To support its arguments that the text of the Letter
Agreement is ambiguous, PG&E argues that it would make
no sense for it to give up its Article 32 rights in exchange for
a mere fine-tuning of the energy price computation. And it
says that under FERC’s view it gives up its rights to seek
energy rate changes through FERC without Western giving
up its parallel Article 32 rights. The one-sidedness occurs
because Western is not a public utility within the meaning of
the FPA; as such it never had any § 205 rights to give up.
See ALJ Opinion, 96 FERC at 65,284. Thus the parties seem
to agree that any non-agreed change to energy rates could
come only through an exercise by FERC of its power under
§ 206, 16 U.S.C. § 824e; but they appear to disagree as to
which of such changes must satisfy the Sierra-Mobile doc-
trine’s very demanding ‘‘public interest’’ standard. See, e.g.,
Texaco Inc. v. FERC, 148 F.3d 1091, 1095 (D.C. Cir. 1998).
PG&E thinks that FERC will likely require it to meet the
public interest standard while allowing Western to secure
changes under a more lenient one. FERC did not address
these interesting collateral issues, and we need not.
Whatever the parties’ residual rights to seek changes
through § 206, PG&E has by no means shown that the
natural construction of the Letter Agreement is so lopsided
as to be implausible. The Letter Agreement greatly simpli-
fied the previous system for determining rates. PG&E did
9
reserve the right to make § 205 filings in three specific areas,
which may then have been seen as critical. Additionally,
Western limited its right to request a hearing in certain
circumstances. See Letter Agreement § 33. In short, the
Letter Agreement is not so obviously unbalanced as to make
us question its otherwise plain meaning.
As the parties have agreed that parol evidence is not to be
admitted if the contract is unambiguous, there is no need for
us, and was no need for the ALJ, to review the parol evidence
tendered by PG&E. We note for the record that the evi-
dence offered seems astonishingly weak: primarily the nego-
tiators’ failure to recall any determination to cut down
PG&E’s Article 32 filing rights.
PG&E has a back-up argument. It claims that even if it
can’t file energy rate changes under Article 32 of the Con-
tract, it should still be able to do so under the first of the
Letter Agreement’s three specific exceptions. This provision
gives PG&E the right to make unilateral application to
FERC ‘‘under Section 205 of the Federal Power Act and
pursuant to the Commission’s Rules and Regulations promul-
gated thereunder to make the changes in rates, terms and
conditions as set forth in Section A(10) of Appendix ATTTT’’
Section A(10) of Appendix A in turn states that ‘‘[i]n the event
TTT any legislative body or governmental agency takes any
action that necessitates or results in changes to this Appendix
A, the Parties agree to negotiate in good faith and implement
changes to this Appendix A to provide concurrent and consis-
tent modifications, as necessary.’’ The provision then says
that if the parties cannot agree on changes, they may make
appropriate filings with FERC. The Commission put aside
the question of whether the requisite governmental action
was shown, 97 FERC at 61,397 n.4, but agreed with the
ALJ’s finding that PG&E’s proposed changes could not quali-
fy as ‘‘changes to this Appendix A.’’
Appendix A addresses various issues in calculating the
costs at PG&E’s thermal plants. It does so within the
framework of the Letter Agreement, which in § 2(b) declares
that its purpose is to establish ‘‘methodology, data sources
10
and procedures for the calculation of PG&E’s Average Annual
Thermal Capacity and Energy Production Costs.’’ PG&E
argues that its filing represents a ‘‘change to this Appendix
A,’’ as it replaces rates based on PG&E’s thermal plant costs
with rates based on its purchases in the open market.
We think that, at a minimum, language allowing changes
‘‘to this Appendix A’’ cannot cover changes substantially
affecting terms outside Appendix A. See ALJ Opinion, 96
FERC at 65,288. PG&E’s filing would do so. It would moot
the entire Letter Agreement. Because of its complete substi-
tution for Appendix A and the rest of the Letter Agreement,
it would essentially ‘‘abolish and replace’’ the Letter Agree-
ment, as the ALJ found. ALJ Opinion, 96 FERC at 65,289.
And an example of this can be found in its de facto elimina-
tion of Appendix C, governing calculation of costs at PG&E’s
Diablo Canyon plant. Even PG&E concedes the point, ac-
knowledging that its filing ‘‘proposed to delete Appendix C,’’
Petitioner’s Reply Brief at 20.1
If proposals so remote from Appendix A are ‘‘changes to
this Appendix A,’’ then it appears that any proposed change
would qualify (so long as it met the governmental action
requirement posed by the section), no matter how radically it
affected the rest of the Letter Agreement and the Contract.
Whatever the exact contours of what might be a change ‘‘to’’
Appendix A, PG&E’s filing cannot qualify.
Transmission rates. Under the California restructuring
and PG&E’s ceding control of its transmission facilities to the
ISO, PG&E is billed additional costs for services related to
maintaining grid reliability. PG&E now wishes to charge
Western for the portion of these charges relating to its
energy sales to Western.
FERC and the ALJ posed a single obstacle to PG&E’s
§ 205 filing new transmission rates—their conclusion that
1 Although § 33 of the Letter Agreement preserves a very
limited right to amend Appendix C, see § C(11), PG&E has never
pretended that it encompasses the changes that PG&E has pro-
posed.
11
PG&E had not met the ‘‘joint review’’ requirement of Article
32 of the Contract:
Rates and charges TTT shall TTT together with service
charges, be jointly reviewed, and adjusted as appropriate
TTT every five yearsTTTT Such review shall take into
account substantial savings accruing to either party and
applicable costs of construction and production, including
changes therein and appropriate service charges, during
the preceding five years. If the parties are unable to
agree on a change of any rate or charge, the matter shall
be submitted to the Federal Power Commission [prede-
cessor of FERC] for final decision.
(Emphasis added.) PG&E argues that joint review is not a
condition precedent for a § 205 filing, and that in any event it
adequately engaged in joint review with Western. We reject
PG&E’s first argument but vacate and remand the case for
further consideration of the second.
Claiming that joint review is not a condition precedent,
PG&E asserts that such conditions are disfavored in contract
interpretation, see, e.g., Samuel Williston, A TREATISE ON THE
LAW OF CONTRACTS § 38.13 (4th ed. 2000), and notes that there
is no conditional word, such as ‘‘if,’’ preceding the statement
of the joint review covenant. But there is a word of condition
that is relevant. The latter part of the provision states that
‘‘[i]f the parties are unable to agree,’’ the matter shall be
submitted to FERC. This explicitly conditions each party’s
right to bring a matter to FERC on the two sides having
proven unable to agree. It plainly anticipates that the parties
will have engaged in joint review and come to a standstill
before one of them can petition FERC for review. The
provision’s detail on the nature of the joint review suggests
an intent that the provision be effectively enforced, and
PG&E’s proposed alternative method of enforcement, discov-
ery, seems less effective and likely duplicative of the parties’
pre-existing rights in a § 205 hearing. See 18 C.F.R.
§§ 385.401–02, 385.501 (2002). We agree with the ALJ that
the language imposes a condition precedent.
12
Whether PG&E met its joint review obligations depends on
two points—the standard of compliance, and PG&E’s actual
behavior. In finding PG&E in default, the ALJ rejected any
notion of substantial compliance. ALJ Opinion, 96 FERC at
65,293. It quoted another ALJ opinion stating:
[T]he Mobile-Sierra doctrine does not have a ‘‘substan-
tiality’’ test: the terms of the contract either permit the
rate increase or do not permit the rate increase.
Id. (quoting Pacific Gas & Elec. Co., 95 FERC ¶ 63,022 at
65,211 (2001)).
This idea seems to lack sense—which may explain why
FERC offered no defense either in its brief or in oral
argument. It is presumably true that any behavior subject to
a condition precedent is, in the end, either barred or not
barred. But that truism offers no reason why an utterly
trivial default should be fatal; and in fact it normally is not.
See, e.g., Employers Ins. of Wausau v. Browner, 52 F.3d 656,
664 (7th Cir. 1995); Williston, A TREATISE ON THE LAW OF
CONTRACTS § 44.52.
The case for a substantial compliance standard seems
compelling here. Joint review is difficult to define and hard
to measure. Unless there is some leeway, a minor defect in
compliance could trigger wholly disproportionate conse-
quences with little warning, perhaps engendering wasteful
overcompliance efforts. And the party resisting any change
would have an incentive to raise loads of minor requests in
the hope of bringing about a single instance of imperfect
compliance. So substantial compliance is enough, and the
ALJ’s insistence on more was not a reasonable interpretation
of the contract.
The evidence of PG&E’s failure to comply is hardly over-
whelming. FERC focuses on its failure to provide Western
the necessary data and to adequately discuss and review that
data with Western. Article 32 states that review should take
into account ‘‘substantial savings accruing to either party and
applicable costs of construction and production, including
changes therein and appropriate service charges, during the
13
preceding five years.’’ All parties agree that this provision at
least means that each party must have access to the preced-
ing five years of data in the specified categories. Since the
data at issue were in PG&E’s possession, the question is
whether PG&E adequately made it available to Western.
PG&E argues that Western has access to the relevant data
for the preceding five years (1996 to 2001) since it was an
intervenor in five different rate cases in which PG&E had to
submit this information. See 93 FERC ¶ 61,207 (2000); 89
FERC ¶ 61,081 (1999); 87 FERC ¶ 61,218 (1999); 83 FERC
¶ 61,212 (1998); 81 FERC ¶ 61,323 (1997). Western (an
intervenor in this case) argues that ‘‘telling Western where to
find the information scarcely amounts to the joint review by
both parties mandated by Article 32,’’ Brief for Federal
Intervenors at 35–36, while PG&E says that Article 32 does
‘‘not require [it] to act like Kinko’s, making copies of the same
documents over and over for Western,’’ PG&E’s Reply Brief
at 22. We agree with PG&E. If Western had reasonably
convenient access to all of the relevant information (and
Western asserts no inconvenience), then PG&E has per-
formed its duty of disclosure.
The briefs and the ALJ’s opinion leave us unclear as to
whether Western is claiming that these five rate cases did not
contain all of the information required for joint review under
Article 32. If that information was complete, then the ALJ’s
discussion about PG&E’s limited deliveries of data is immate-
rial. See ALJ Opinion, 96 FERC at 65,292–93. If lack of
information is to be one of the grounds for PG&E’s failure to
meet the joint review requirement, FERC must make clear
what information has not been made available. It has not
done so.
The ALJ’s opinion is suffused with observations that the
parties have not reviewed and discussed various points. See,
e.g., id. at 65,293. We agree with PG&E that joint review
does not require PG&E to sit down and look over Western’s
shoulder as it considers the information. It also does not
mean that every single point needs to be discussed. Rather,
the information should be made available to Western, giving
14
Western a chance to ask questions and raise concerns, to
which, obviously, PG&E must respond clearly, forthrightly
and completely. If Western expresses a reasonable desire to
meet and discuss open questions, then joint review requires
cooperation from PG&E. But issues need not be discussed
unless a party sees a need.
PG&E apparently met with Western 21 times prior to its
§ 205 filing; but the bulk of these meetings, and indeed of
Western’s complaints to the ALJ about PG&E’s defective
joint review, appear to have concerned energy rather than
transmission rates. See, e.g., August 8, 2001 Affidavit of
Bryan W. Griess. During at least one of these meetings,
PG&E discussed transmission rates and how they were de-
rived from PG&E’s costs. At this same meeting, PG&E told
Western where to find the information on transmission rates,
and its agent said that Western appeared satisfied with the
response. See ALJ Opinion, 96 FERC at 65,292. But the
satisfaction was not total. Western points to an e-mail ex-
change on January 4–5, 2001, in which Western’s representa-
tive asked to meet with one from PG&E to discuss cost of
service data. PG&E rebuffed the request, suggesting instead
that they meet after the filing (presumably the § 205 filing),
but also inviting Western to propose any items it wished for a
technical conference scheduled for a few days later.
This e-mail refusal is clearly relevant to a conclusion that
PG&E failed to substantially comply with the joint review
requirement. But it is unclear whether the ALJ would have
made the same decision relying on it alone—and it appears to
be alone (barring a showing of inadequacies in the informa-
tion made available to Western).
Accordingly we vacate the portion of the order concerning
whether PG&E met the joint review requirement and remand
the case for FERC’s further consideration. Otherwise, we
affirm.
So ordered.