The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 14, 2008 Decided March 28, 2008
No. 06-1403
MAINE PUBLIC UTILITIES COMMISSION
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
CONNECTICUT DEPARTMENT OF PUBLIC UTILITY CONTROL, ET
AL.,
INTERVENORS
Consolidated with
06-1427, 07-1193
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Lisa Fink, Attorney, Maine Public Utilities Commission,
and John S. Wright, Assistant Attorney General, Attorney
General’s Office of State of Connecticut, argued the cause for
petitioners. With them on the briefs were Lisa S. Gast, L. Elise
2
Dieterich, Richard Blumenthal, Attorney General, Attorney
General’s Office of State of Connecticut, Michael C.
Wertheimer, Assistant Attorney General, Martha Coakley,
Attorney General, Attorney General’s Office for the
Commonwealth of Massachusetts, and Jesse S. Reyes, Assistant
Attorney General.
Donald J. Sipe, Mary E. Grover, Stephen L. Teichler,
Robert A. Weishaar, Jr., and Vasiliki Karandrikas were on the
briefs for intervenors in support of petitioners. Jonathan G.
Mermin and Linda S. Lockhart entered appearances.
Jeffery S. Dennis, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the
brief were Cynthia A. Marlette, General Counsel, and Robert H.
Solomon, Solicitor.
John N. Estes, III argued the cause for intervenors FPL
Energy, LLC. With him on the brief were Randall L. Speck,
Scott Harris Strauss, Scott Phillip Myers, James Kilburn
Mitchell, Paul Franklin Wight, Larry F. Eisenstat, George E.
Johnson, Christopher C. O’Hara, Kenneth L. Wiseman, Mark F.
Sundback, Christopher Rhodes Jones, Kenneth Richard
Carretta, David Talmage Musselman, and Aaron James
Bullwinkel. Jennifer L. Spina entered an appearance.
Sherry A. Quirk, Robin E. Remis, and Kathleen A. Carrigan
were on the brief for intervenor ISO New England Inc. in
support of respondent. Kerim P. May entered an appearance.
Barry S. Spector and Paul M. Flynn were on the brief for
amicus curiae PJM Interconnection, L.L.C. in support of
respondent.
3
Before: ROGERS and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
PER CURIAM: The consolidated petitions for review
challenge FERC’s approval of a comprehensive settlement that
redesigned New England’s capacity market. The Maine Public
Utilities Commission and the Attorneys General of Connecticut
and Massachusetts assert that FERC’s approval of the settlement
was arbitrary and capricious, contrary to law, and beyond the
Commission’s jurisdiction. We reject most of these arguments,
but we agree with the petitioners that the Commission has
unlawfully deprived non-settling parties of their rights under the
Federal Power Act.
I.
In a “capacity” market – as opposed to a wholesale
electricity market – “the [transmission provider] compensates
the generator for the option of buying a specified quantity of
power irrespective of whether it ultimately buys the electricity.”1
Keyspan-Ravenswood, LLC v. FERC, 474 F.3d 804, 806 (D.C.
Cir. 2007). In order to maintain the reliability of the grid,
transmission providers generally purchase more capacity than is
necessary to meet their customers’ demand for electricity. This
ensures that the transmission providers are able to respond
adequately to unexpected fluctuations in demand.
For many years, New England’s capacity market has been
1
It would have been helpful if the parties had actually defined
“capacity” before delving into the intricacies of New England’s
capacity market. Also, the briefs would have been much easier to read
if the parties had used fewer acronyms.
4
rife with problems. As the Commission explained in 2003,
“existing generators needed for reliability are not earning
sufficient revenues (and are in fact losing money), and [ ]
additional infrastructure is needed soon to avoid violations of
reliability criteria.” Devon Power LLC, 115 FERC ¶ 61,340 at
62,315 (2006). In other words, the supply of capacity was
barely sufficient to meet the region’s demand.
FERC, the generators, the transmission providers, and the
power customers have made several attempts to address these
issues. In 2003, a group of generators sought to enter into
“Reliability Must-Run” agreements with the New England
Independent System Operator (“ISO”), which operates the
transmission system in New England.2 Under a Must-Run
agreement, a financially-troubled generator in an area with
supply shortages may recover up to its full cost-of-service in
order to remain in operation. Those agreements have several
important drawbacks. As FERC explained:
[Must-Run] contracts suppress market-clearing prices,
increase uplift payments, and make it difficult for new
2
An ISO is an independent company that has operational
control, but not ownership, of the transmission facilities owned by
member utilities. ISOs “provide open access to the regional
transmission system to all electricity generators at rates established in
a single, unbundled, grid-wide tariff . . . .” Midwest ISO Transmission
Owners v. FERC, 373 F.3d 1361, 1364 (D.C. Cir. 2004) (citation
omitted). In 2004, the New England ISO was organized as a Regional
Transmission Organization (“RTO”). RTOs are given greater
regulatory flexibility by FERC, provided that they (inter alia): are
regional in scope, have exclusive operational control over all
transmission facilities within their control, and have sole authority to
approve or deny requests for transmission service. Id. at 1365.
5
generators to profitably enter the market. . . . [E]xpensive
generators under [Must-Run] contracts receive greater
revenues than new entrants, who would receive lower
revenues from the suppressed spot market price. In short,
extensive use of [those] contracts undermines efficient
market performance.
Devon Power LLC, 103 FERC ¶ 61,082 at 61,270 (2003). For
these reasons, FERC accepted the Must-Run agreements filed by
the New England generators, but only allowed these generators
to recover certain maintenance costs, not their full cost-of-
service. Id. at 61,270-71.
In its orders addressing the Must-Run agreements, the
Commission simultaneously directed the ISO to develop a new
market mechanism that would include a location requirement.
Id. at 61,271. In a locational market, prices are set separately for
various geographical sub-regions. Thus, prices would be highest
in the regions with the most severe capacity shortages, which
would encourage new entry.
In response to FERC’s directive, the ISO proposed a
locational capacity market structure in March 2004. This
proposed market mechanism included four sub-regions, each of
which would have a monthly auction for capacity. The auctions
would be based on an “administratively-determined demand
curve” that would establish the price and quantity of capacity
that must be procured within each sub-region.3 Devon Power
3
Although the parties refer to this as a “demand curve,” that
term is misleading. Normally, a “demand curve” is a model of the
relationship between prices and consumer preferences in a free market.
In contrast, the “demand curve” proposed by the ISO is an entirely
6
LLC, 107 FERC ¶ 61,240 at 62,022 (2004). FERC commended
the ISO for adopting a locational pricing mechanism that took
account of transmission constraints between different sub-
regions within New England. Id. at 62,028. However, the
demand curve proposed by the ISO was extremely controversial
– numerous parties submitted comments and testimony
regarding the proper height and slope of the curve. Id. at
62,031. FERC set the matter for hearing before an
Administrative Law Judge (“ALJ”).
In June 2005, the ALJ issued a 177-page order that largely
accepted the ISO’s proposed demand curve. Devon Power LLC,
111 FERC ¶ 63,063 (2005). Several parties filed exceptions to
this decision, arguing that the ALJ wrongfully excluded
evidence and failed to respond to comments about flaws in the
ISO’s demand curve. On September 20, 2005, the full
Commission held an all-day oral argument on the locational
market structure and the proposed demand curve. FERC
subsequently established settlement procedures to allow the
parties to develop a new market mechanism.
After four months of negotiations involving 115 parties, a
settlement was reached. As FERC has repeatedly reminded us,
only eight of these parties opposed the final settlement. 115
artificial construct that specifies the prices that must be paid for
various quantities of capacity. 107 FERC at 62,022; see also Elec.
Consumers Res. Council v. FERC, 407 F.3d 1232, 1234-35 (D.C. Cir.
2005) (explaining the construction of a similar “demand curve” by the
New York ISO). This proposal was intended to make revenues and
price movements more stable and predictable. 107 FERC at 62,022.
That may or may not have been sound policy, but it more accurately
should be termed a “non-demand demand curve” reminiscent of the
once regulatory invention, a “non-bank bank.”
7
FERC at 62,306. The key feature of the settlement agreement
is the Forward Capacity Market, which would replace the ISO’s
earlier proposal and eliminate the need for the controversial
demand curve. Under the Forward Market, there will be annual
auctions for capacity, which will be held three years in advance
of when the capacity is needed. Id. The settling parties
determined that a three-year lead time will “provide for a
planning period for new entry and allow potential new capacity
to compete in the auctions.” Id. Each transmission provider
will be required to purchase enough capacity to satisfy its
“installed capacity requirement,” which is the minimum level of
capacity that is necessary to maintain reliability on the grid. Id.
at 62,307. As FERC requested, the Forward Market also
includes a locational component – the annual auctions will be
held in different “capacity zones” based on transmission
constraints between the various sub-regions within New
England. Id.
The most contentious issue regarding the Forward Market
is the set of “transition payments” that will be required from
December 1, 2006 until June 1, 2010. As explained above, the
Forward Market provides for a three-year lead time in the
capacity auctions, in order to allow new entrants to bid in the
auctions. However, this leaves a three-year gap between the
first auction and the time when the capacity procured in this
auction will be provided. The parties addressed this issue by
negotiating a series of fixed payments that will be paid to
generators during the transition period. 115 FERC at 62,308.
The agreement also provides that challenges to the transition
payments and the final Forward Market auction clearing prices
– regardless of whether the challenge is brought by a settling
party, a non-settling party, or the Commission – will be
adjudicated under the highly-deferential “public interest”
standard rather than the usual “just and reasonable” standard.
8
Id. at 62,332-33.
On June 16, 2006, FERC approved the settlement
agreement, finding that “as a package, it presents a just and
reasonable outcome for this proceeding consistent with the
public interest.” Id. at 62,304. Most importantly, the
Commission determined that the settlement would address the
problems that had plagued New England’s capacity market:
The settlement package, including both the [Forward
Market] and the interim transition mechanism, resolves the
issues raised in this proceeding concerning the under-
compensation of capacity resources in New England, and
provides the appropriate market structure to ensure that
generating resources are appropriately compensated based
on their location and contribution to system reliability and
provides incentives to attract new infrastructure where
needed.
Id. at 62,316. FERC conceded that the transition payments were
not ideal “as a single market design element,” but concluded that
they were a “reasonable transitory mechanism that enables the
New England region to shift to the [Forward Market].” Id. at
62,319. In particular, the Commission determined that the
transition payments “fall at the very low end” of the range of
demand curves (prices) submitted by Maine and the ISO during
the litigation over the ISO’s previous market structure proposal.
Id. at 62,321. FERC also approved the agreement’s
incorporation of the “public interest” standard of review because
use of the more deferential standard in a limited number of
circumstances would promote “rate stability.” Id. at 62,335.
After FERC denied rehearing, the Maine Public Utilities
Commission and the Attorneys General of Connecticut and
9
Massachusetts petitioned for review, arguing that the
Commission’s approval of the settlement was arbitrary and
capricious, contrary to law, and beyond the scope of FERC’s
jurisdiction.4 Specifically, petitioners assert that: (1) FERC’s
acceptance of the transition payments was arbitrary and
capricious because the record did not contain sufficient data
about generators’ costs; (2) FERC unreasonably accepted the
transition payments even though the payments did not include
a locational pricing mechanism; (3) FERC unlawfully accepted
a “Mobile-Sierra” provision that imposed the deferential “public
interest” standard of review on rate challenges brought by non-
settling parties; and (4) FERC lacks jurisdiction to approve the
settlement agreement because the Forward Market will
effectively force states to acquire a specific level of capacity.
For the reasons set forth below, we grant the petition for review
with respect to the Mobile-Sierra issue, but we deny the petition
with respect to the other three issues.
II.
The petitioners argue that FERC’s approval of the
settlement’s transition payments was arbitrary and capricious, in
violation of the Administrative Procedure Act, 5 U.S.C. §
706(2)(A). To withstand review under that standard, FERC
must have “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’”
4
The orders under review are Devon Power LLC, 115 FERC
¶ 61,340 (2006); Devon Power LLC, 117 FERC ¶ 61,133 (2006); ISO
New England, Inc., 117 FERC ¶ 61,132 (2006); and ISO New
England, Inc., 119 FERC ¶ 61,044 (2007).
10
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962)). The Commission’s
findings of fact, “if supported by substantial evidence,” are
conclusive. 16 U.S.C. § 825l(b). When the record would
support more than one outcome, we must uphold FERC’s order
because “[t]he question we must answer . . . is not whether
record evidence supports [the petitioner’s desired outcome], but
whether it supports FERC’s.” Fla. Mun. Power Agency v.
FERC, 315 F.3d 362, 368 (D.C. Cir. 2003). See generally
NorAm Gas Transmission Co. v. FERC, 148 F.3d 1158, 1162
(D.C. Cir. 1998) (“[I]n reviewing the Commission’s approval of
a contested settlement, we must determine whether the
Commission has supplied a ‘reasoned decision’ that is supported
by ‘substantial evidence.’” (quoting 18 C.F.R. §
385.602(h)(1)(I)).
In this case, after considering the merits of the settlement as
a whole, FERC examined the record evidence and concluded
that the transition payments fell within a “reasonable range of
capacity prices.” 115 FERC at 62,319. The Commission
correctly noted that there is not a single “just and reasonable
rate” but rather a zone of rates that are just and reasonable; a just
and reasonable rate is one that falls within that zone. Id.; see
Montana-Dakota Utils. Co. v. N.W. Pub. Serv. Co., 341 U.S.
246, 251 (1951) (“Statutory reasonableness is an abstract quality
represented by an area rather than a pinpoint. It allows a
substantial spread between what is unreasonable because too
low and what is unreasonable because too high.”); Pac. Gas &
Elec. Co. v. FERC, 306 F.3d 1112, 1116 (D.C. Cir. 2002)
(“[T]he court may only set aside a rate that is outside a zone of
reasonableness, bounded on one end by investor interest and the
other by the public interest against excessive rates.”); cf. In re
Permian Basin Area Rate Cases, 390 U.S. 747, 767 (1968)
11
(“[T]his Court has often acknowledged that the Commission is
not required by the Constitution or the Natural Gas Act to adopt
as just and reasonable any particular rate level; rather, courts are
without authority to set aside any rate selected by the
Commission which is within a ‘zone of reasonableness.’”);
ExxonMobil Gas Mktg. Co. v. FERC, 297 F.3d 1071, 1084 (D.C.
Cir. 2002) (“The burden is on the petitioners to show that the
Commission’s choices are unreasonable and its chosen line of
demarcation is not within a zone of reasonableness as distinct
from the question of whether the line drawn by the Commission
is precisely right.” (internal quotation marks omitted)).
In challenging FERC’s decision to approve the transition
payments, the petitioners argue that there was no record
evidence of existing generators’ costs and that without such
evidence FERC could not find that the payments fell within a
reasonable range of capacity prices. In its early orders in Devon
Power, however, FERC determined that reliance on
individualized cost recovery proceedings was not a policy in the
public interest and that, instead, capacity payments should be
made to all suppliers with a single market-clearing price. See,
e.g., Devon Power LLC, 110 FERC ¶ 61,315 at 62,227 (2005).
FERC is correct that it need not rely on generators’ costs to
determine rates. The Supreme Court has disavowed the notion
that rates must depend on historical costs and has held that rates
may be determined by a variety of formulae. See, e.g., FPC v.
Hope Natural Gas Co, 320 U.S. 591, 602 (1944) (“[T]he
Commission [i]s not bound to the use of any single formula or
combination of formulae in determining rates.”); see also Mobil
Oil Corp. v. FPC, 417 U.S. 283, 316 (1974) (“Mobil’s argument
assumes that there is only one just and reasonable rate possible
for each vintage of gas, and that this rate must be based entirely
on some concept of cost plus a reasonable rate of return. We
rejected this argument in Permian Basin and we reject it again
12
here.”); Am. Pub. Power Ass’n v. FPC, 522 F.2d 142, 146 (D.C.
Cir. 1975) (“Congress carefully eschewed tying ‘just and
reasonable’ rates to any particular method of deriving the rates.
Certainly there is nothing in the Federal Power Act specifically
endorsing historic test year ratemaking or any other technique of
ratemaking. Congress clearly intended to allow the Commission
broad discretion in regard to the methodology of testing the
reasonableness of rates.”).5
Of course, FERC cannot pluck rates out of thin air; it must
rely on record evidence to establish a reasonable range of rates.
But contrary to the petitioners’ suggestion, FERC’s statement
that “the transition payments are reasonable rates for existing
generators until the [Forward Market] begins,” 115 FERC at
62,321, was not simply an assertion but rather a conclusion
based on the Commission’s analysis of two pieces of record
evidence: (1) projected prices under demand curves introduced
by Maine and Vermont load representatives and by ISO-New
England at the hearing on the locational installed capacity
mechanism, and (2) the estimated cost of entry for a new peaker
unit. Only after reviewing this evidence to establish a “zone of
5
The petitioners cite NSTAR Electric & Gas Corp. v. FERC,
481 F.3d 794 (D.C. Cir. 2007), for the proposition that FERC cannot
approve a rate without reviewing cost data, but this mischaracterizes
the holding of that case. In NSTAR, FERC approved contracts
between ISO-New England and certain generators because those
contracts provided compensation to generators at a percentage of fixed
or variable costs. We remanded the case because, although FERC’s
rationale relied on costs, there was no substantial evidence of those
costs in the record. The NSTAR court specifically recognized,
however, that FERC need not always rely on historic cost data. See id.
at 804 (“Nor, of course, do we mean to suggest that only prices in line
with historic accounting costs would qualify as just and reasonable.”).
13
reasonableness” did FERC conclude that the transition payments
fell within the zone. Id.; see also 117 FERC at 61,718
(discussing FERC’s reliance on demand curve and cost of new
entry evidence in evaluating the transition payments).
In establishing the reasonable range of capacity prices,
FERC first reviewed evidence introduced at the hearing on the
locational installed capacity mechanism (which was later
replaced by the Forward Market). FERC decided to look at
projected prices for Maine and Northeastern Massachusetts
under both the demand curve proposed by Maine and Vermont
load representatives and the demand curve proposed by the ISO.
The Commission acknowledged that these were not the only two
demand curves proposed at the hearing, but, as it explained more
fully in the order on rehearing, it chose to rely on these two
curves because they came from two different sectors. Load
representatives offered demand curves that projected low prices,
while supplier representatives offered demand curves that
projected high prices; thus, FERC noted that “[i]f the
Commission relied only upon demand curves proposed by
parties representing load, the transition payments may have
appeared excessive; relying only on demand curves proposed by
suppliers would imply that the transition payments were
inadequate.” 117 FERC at 61,719. FERC accordingly
“conclude[d] that relying on proposed demand curves from a
single sector would have been unreasonable” and focused on
two curves – from two different sectors – that provided a narrow
range of price projections. Id.; see also 115 FERC at 62,319-20.
Comparing the transition payments to these demand curve
projections, FERC found that the transition payments fell within
the range of capacity prices projected by both demand curves.
115 FERC at 62,321.
The petitioners object that FERC improperly relied on the
14
demand curves as a basis of comparison because FERC did not
expressly find them to be just and reasonable. Since it never
made that finding, the petitioners insist, FERC could not rely on
the demand curves to find that the transition payments were
reasonable. It is true that FERC may not use unexamined rates
as a basis of comparison. Cf. Laclede Gas Co. v. FERC, 997
F.2d 936, 946-47 (D.C. Cir. 1993). But here, FERC examined
the record evidence and concluded that these two curves
“establishe[d] a reasonable range of capacity prices for
comparison.” 117 FERC at 61,719; see also 115 FERC at
62,319-21. FERC’s determination that these curves offered a
reasonable range of prices for comparison was further supported
both by the fact that FERC had explicitly endorsed the demand
curve approach in earlier orders, see 110 FERC at 62,221
(“[W]e preliminarily find the use of ICAP regions and an ICAP
demand curve as proposed by ISO-NE to be just and reasonable
. . . .”); Devon Power LLC, 107 FERC ¶ 61,240 at 62,031 (2004)
(“We agree with ISO-NE’s overarching proposal to use a
demand curve, and in particular a downward sloping demand
curve, as part of the eventual LICAP mechanism in New
England.”), and by the fact that the administrative law judge had
adopted the ISO’s demand curve – which contained higher price
projections than the Maine-Vermont curve – after a lengthy
proceeding, Devon Power LLC, 111 FERC ¶ 63,063 at 65,217
(2005) (“[T]he undersigned finds the ISO’s demand curve
proposal to be just and reasonable . . . .”); see 115 FERC at
62,319 (“[T]he Initial Decision did adopt ISO-NE’s proposal .
. . .”); see also id. at 62,320-21. In light of this evidence,
FERC’s determination was sufficient. A binding merits decision
was not required; indeed, such a requirement would largely
vitiate the purpose of a settlement.
The petitioners also object to FERC’s reliance on evidence
of the estimated cost of new entry to determine a reasonable
15
range of rates. The petitioners raise two concerns. First, they
argue that cost of new entry represents the estimated costs of a
new peaker, not those of an existing generator, and that the two
may have different capital costs. The Commission determined,
however, that new peakers have “capital costs [that] are lower
than most, if not all, other plants.” 115 FERC at 62,321. Hence,
if cost of new entry is used as a reference point, the transition
payments “are likely to be significantly lower than a cost-of-
service payment for most, if not all, new generators.” Id.; see id.
at 62,319 (concluding that “in the first years,” the transition
“payments are less than the cost of new entry, accurately
reflecting market conditions”).
Second, the petitioners argue that cost of new entry is an
arbitrary reference point for the transition period because,
although cost of new entry provides a starting point for the
Forward Market auction, the Forward Market does not exist
during the transition period. But the fact that cost of new entry
is used to kick off the auction does not mean that it is relevant
only for that purpose. If anything, the reliance on cost of new
entry as a starting point of the Forward Market auction
underscores its relevance to appropriate rates: it is used to
commence the auction because it approximates reasonable
compensation for existing as well as new generators. See id. at
62,326. FERC sets rates to ensure both that existing generators
are adequately compensated and that prices support new entry
when additional capacity is needed. See, e.g., Recording of Oral
Arg. at 1:02:34-1:03:01, 1:09:30-1:10:35. As FERC therefore
noted, cost of new entry is “a key factor in determining
appropriate rates for capacity” and was central to the demand
curves under the locational installed capacity market as well as
the Forward Market design. 117 FERC at 61,718; cf. Elec.
Consumers Res. Council v. FERC, 407 F.3d 1232, 1235, 1237-
38 (D.C. Cir. 2005) (upholding FERC’s approval of a demand
16
curve that sets prices based on the annualized cost of a new
peaker plant); New York Indep. Sys. Operator, Inc., 117 FERC
¶ 61,086 at 61,443 n.7 (2006) (“In a competitive market, prices
should reach equilibrium at or near to the levelized net cost of
new entry.”). We conclude that it was reasonable for the
Commission to look to cost of new entry as a basis of
comparison in its review of the transition payments.
Finally, the petitioners claim that FERC did not respond
meaningfully to their objections to the transition payments. See
PPL Wallingford Energy LLC v. FERC, 419 F.3d 1194, 1198
(D.C. Cir. 2005) (“An agency’s ‘failure to respond
meaningfully’ to objections raised by a party renders its decision
arbitrary and capricious.” (quoting Canadian Ass’n of Petroleum
Producers v. FERC, 254 F.3d 289, 299 (D.C. Cir. 2001))).
Specifically, the petitioners argue that FERC did not address the
argument of the Attorneys General that the transition payments
do not reflect market conditions, reliability contributions, or
cost-of-service; and they cite testimony by an expert witness that
the transition payments are significantly in excess of what is
needed to retain existing resources because many generators rely
in part on sources of energy other than oil and gas (e.g., nuclear
and hydro power). The Commission did, however, respond to
these objections, discussing the long-term commitment and
enhanced reliability contributions of generators that the
transition payment mechanism requires. See 115 FERC at
62,322; 117 FERC at 61,720, 61,724. FERC also rejected the
petitioners’ premise that their expert’s testimony was the only
relevant evidence about whether the transition payments were
reasonable and explained that cost of new entry and the demand
curves were relevant evidence. E.g., 117 FERC at 61,718-20.
In short, FERC’s conclusion that the transition payments fell
within a reasonable range of capacity prices was a reasoned
17
decision supported by substantial evidence.6
III.
Petitioner Maine Public Utilities Commission (Maine PUC)
argues that FERC’s acceptance of non-locational pricing during
the transition period was arbitrary and capricious, attacking
FERC’s decision on both general and specific grounds.
At a general level, Maine PUC contends that FERC acted
arbitrarily in approving non-locational transition payments when
FERC had previously insisted that a locational structure was
necessary for New England. Maine PUC’s claim is that, by
approving non-locational transition payments, FERC abandoned
the core of the market reform it set out to implement, a
mechanism that would “appropriately value capacity resources
according to their location.” Pet’r Br. 48 (quoting Devon Power
LLC, 109 FERC ¶ 61,154 at 61,631 (2004)). But the Forward
Market, which is the ultimate product of the settlement, includes
6
The petitioners also argue that FERC acted arbitrarily and
capriciously in ordering an overbroad remedy to the market problem
it had identified. According to the petitioners, the ongoing use of
Reliability Must-Run contracts during the transition period
contravenes FERC’s initial desire to implement a market structure to
replace Must-Run contracts. This objection was not raised before the
agency and is therefore waived. See 16 U.S.C. § 825l(b) (“No
objection to the order of the Commission shall be considered by the
court unless such objection shall have been urged before the
Commission in the application for rehearing unless there is reasonable
ground for failure so to do.”).
18
locational pricing.7 Hence, the settlement does satisfy FERC’s
initial concern about non-locational pricing. See 115 FERC at
62,322 (“The locational feature in the [Forward Market]. . .
appropriately addresses on a long-term basis issues regarding
payments to capacity in constrained regions.”); 117 FERC at
61,720 (“In the June 16 Order, we concluded that the [Forward
Market] itself appropriately recognizes location.”); see also 115
FERC at 62,325 (accepting the locational feature of the Forward
Market). The fact that the transition period lacks a locational
component does not change the fact that the ultimate result of
the settlement proceedings is a new market structure that does
account for location.
Maine PUC’s specific contention is that separate prices are
warranted for Maine during the transition period because Maine
has a capacity surplus and is export constrained (so that it would
experience lower capacity prices in an actual market). It
maintains that FERC refused to consider the evidence that it
presented to support this contention. But FERC did consider
Maine’s argument that it should pay lower transition payments
because of its capacity surplus. The Commission offered two
interrelated reasons for its conclusion that the transition
payments should not have a locational component. First, FERC
cited record evidence that projected “little to no variability in
capacity prices across New England regions for the period
covered by the transition mechanism.” 115 FERC at 62,322.
Second, to the extent that import constraints do exist in other
areas of New England, thereby creating a need for additional
capacity, FERC noted that Reliability Must-Run agreements had
7
For the Forward Market, capacity is purchased three years
in advance, so the full market design, including the locational element,
cannot be implemented until 2010.
19
already been approved and would continue during the transition
period, with the costs for these contracts paid locally. Id.
To be sure, Maine PUC offered some contradictory
evidence about capacity price variability, see, e.g., J.A. 1941-47
(Supplemental Affidavit of Thomas D. Austin), but FERC’s
orders do “not lack substantial evidence simply because
petitioners offered some contradictory evidence,” Ariz. Corp.
Comm’n v. FERC, 397 F.3d 952, 954 (D.C. Cir. 2005) (internal
quotation marks omitted). FERC was entitled to reject Maine
PUC’s evidence and to base its conclusion on different evidence
in the record. See, e.g., Elec. Consumers Res. Council, 407 F.3d
at 1236 (“[T]he court defers to the Commission’s resolution of
factual disputes between expert witnesses.”); see also Fla. Mun.
Power Agency, 315 F.3d at 368.
Maine PUC insists that FERC cannot rely on the rationale
that price separation between Maine and the rest of New
England was unsupported by the record. Although FERC did
rely on this rationale in its initial order, Maine PUC claims that
the Commission abandoned it in its order on rehearing.
According to Maine PUC, on rehearing FERC refused to
consider data presented by the petitioners and instead found that
it was irrelevant whether Maine was export constrained. But
despite somewhat infelicitous language in its rehearing order,
FERC did not abandon the findings and conclusions of its initial
order. To the contrary, the rehearing order first discussed both
the evidence presented by Maine PUC, including Dr. Austin’s
affidavits, and the data and arguments in the record that
contradicted this evidence. See 117 FERC at 61,722-23; see
also id. at 61,724 (“The Commission did consider arguments
presented in Dr. Austin’s affidavits in approving the Settlement
Agreement.”). FERC’s subsequent statement that the “issue of
Maine being export-constrained is not the subject of this
20
proceeding,” id. at 61,724, did not undo all of that previous
discussion. Rather, it merely clarified that the question of
whether Maine was export constrained was relevant only insofar
as it affected FERC’s determination of reasonable rates; it was
not an independent question before the Commission. See id.
Finally, Maine PUC challenges FERC’s denial of a motion
that it filed on September 8, 2006, following the Commission’s
initial June 16 order. By that motion, Maine PUC sought to
lodge the Department of Energy’s National Electric
Transmission Congestion Study, which Maine PUC argued
supported its claim that the transition payments should be
locational. We accord the Commission “broad discretion in
fashioning hearing procedures,” Mich. Consol. Gas Co. v.
FERC, 883 F.2d 117, 125 (D.C. Cir. 1989) (quoting Lyons v.
Barrett, 851 F.2d 406, 410 (D.C. Cir. 1988)), and find no abuse
of discretion here. The motion at issue was filed nearly three
months after FERC’s decision approving the settlement, and
FERC acted reasonably in holding that it “would be
inappropriate to accept evidence at this extremely late date in
this proceeding (after a dispositive order has been issued), since
it would effectively deny parties the opportunity to respond to
the evidence.” 117 FERC at 61,724. FERC similarly denied
untimely motions to intervene by Bridgeport Energy, LLC and
Casco Bay Energy Company, LLC, which had been filed several
weeks before Maine PUC’s motion. See id. at 61,715.
Accordingly, we reject all of Maine PUC’s attacks on
FERC’s decision to accept non-locational pricing during the
transition period.
21
IV.
Section 4.C of the settlement agreement provides that the
transition payments and the final prices from the Forward
Market auctions will be reviewed under the “public interest”
standard rather than the “just and reasonable” standard. 115
FERC at 62,333. This is more than a matter of semantics: the
public interest standard is “much more restrictive” than the just
and reasonable standard, which means that the settlement
agreement makes it harder to successfully challenge the
transition payments and Forward Market auction prices. Wisc.
Pub. Power, Inc. v. FERC, 493 F.3d 239, 271 (D.C. Cir. 2007)
(citation omitted). The agreement states that the public interest
standard will apply to all future challenges to the transition
payments and final auction prices “whether the change is
proposed by a Settling Party, a non-Settling Party, or the FERC
acting sua sponte.” 115 FERC at 62,333. Petitioners – who
were not parties to the settlement agreement – assert that this
provision will deprive them of their statutory right to challenge
rates under the “just and reasonable” standard. We agree, and
we grant the petition for review on this issue.
***
Under the Mobile-Sierra doctrine, “FERC may abrogate or
modify freely negotiated private contracts that set firm rates or
establish a specific methodology for setting the rates for service
. . . only if required by the public interest.” Atl. City Elec. Co.
v. FERC, 295 F.3d 1, 14 (D.C. Cir. 2002). This doctrine
recognizes the superior efficiency of private bargaining, and its
purpose is “to subordinate the statutory filing mechanism to the
broad and familiar dictates of contract law.” Borough of
Lansdale v. FPC, 494 F.2d 1104, 1113 (D.C. Cir. 1974). Thus,
when the parties to a rate dispute reach a contractual settlement,
22
FERC must enforce the terms of the bargain unless the public
interest requires otherwise – that is, unless the negotiated rates
“might impair the financial ability of the public utility to
continue its service, cast upon other customers an excessive
burden, or be unduly discriminatory.” FPC v. Sierra Pac.
Power Co., 350 U.S. 348, 355 (1956). In the instant case, we
are presented with a question of first impression: may the
Commission approve a settlement agreement that applies the
highly-deferential “public interest” standard to rate challenges
brought by non-contracting third parties? We think not.
Section 206 of the Federal Power Act provides: “Whenever
the Commission, after a hearing had upon its own motion or
upon complaint, shall find that any rate, charge, or classification
. . . is unjust, unreasonable, unduly discriminatory or
preferential, the Commission shall determine the just and
reasonable rate . . . and shall fix the same by order.” 16 U.S.C.
§ 824e(a). In other words, when a party files a complaint
against a rate or charge, FERC must adjudicate the challenge
under the “just and reasonable” standard. The Mobile-Sierra
doctrine carves out an exception to this rule based on the
“familiar dictates of contract law.” Lansdale, 494 F.2d at 1113.
When two or more parties reach a negotiated settlement over a
disputed rate, FERC applies a strong presumption that the settled
rate is just and reasonable, and the Commission may only set
aside the contract for the most compelling reasons.8 The
purpose of the Mobile-Sierra doctrine is “to preserve the
8
As one commentator has noted, the Mobile-Sierra doctrine
“recognize[s] that the existence of a contract infuses the rate with the
attribute of reasonableness . . . .” Carmen L. Gentile, The Mobile-
Sierra Rule: Its Illustrious Past and Uncertain Future, 21 ENERGY L.J.
353, 357 (2000).
23
benefits of the parties’ bargain as reflected in the contract,
assuming that there was no reason to question what transpired
at the contract formation stage.” Atl. City, 295 F.3d at 14. For
example, in the Sierra case, Pacific Gas & Electric (PG&E) had
surplus hydroelectric power, which it sold to Sierra Pacific
Power Company at a very low rate. 350 U.S. at 351-52. When
the surplus power was no longer available, PG&E – with the
Commission’s approval – reneged on its contract and increased
Sierra’s rates. Id. at 352. The Supreme Court held for Sierra,
stating that “neither PG&E’s filing of the new rate nor the
Commission’s finding that the new rate was not unlawful was
effective to change PG&E’s contract with Sierra.” Id. at 353.
The Court required the Commission to apply the highly-
deferential “public interest” standard of review to challenges to
contractually-established rates, in order to preserve the terms of
the parties’ bargain. Id. at 355; see also Lansdale, 494 F.2d at
1107-14 (holding that FERC may not approve a utility’s breach
of a settled rate contract unless the contract rates “contravened
the public interest”).
Courts have rarely mentioned the Mobile-Sierra doctrine
without reiterating that it is premised on the existence of a
voluntary contract between the parties. In Mobile, the Supreme
Court stated that “the relations between the parties” may be
established by contract, subject only to “public interest” review.
United Gas Pipeline Co. v. Mobile Gas Serv. Corp., 350 U.S.
332, 339 (1956) (emphasis added). Similarly, this Court has
emphasized that the deferential public interest standard only
applies to “freely negotiated private contracts that set firm rates
or establish a specific methodology for setting the rates for
service.” Atl. City, 295 F.3d at 14 (emphasis added); see also
Maine PUC v. FERC, 454 F.3d 278, 283-84 (D.C. Cir. 2006);
Richmond Power & Light v. FPC, 481 F.2d 490, 493 (D.C. Cir.
1973) (“The contract between the parties governs the legality of
24
the filing.”).
This case is clearly outside the scope of the Mobile-Sierra
doctrine. As we explained, Mobile-Sierra is invoked when “one
party to a rate contract on file with FERC attempts to effect a
unilateral rate change by asking FERC to relieve its obligations
under a contract whose terms are no longer favorable to that
party.” Maine PUC, 454 F.3d at 284. Here, the settling parties
are attempting to thrust the “public interest” standard of review
upon non-settling third parties who have vociferously objected
to the terms of the settlement agreement. As the Supreme Court
has noted, “[i]t goes without saying that a contract cannot bind
a nonparty.” EEOC v. Waffle House, Inc., 534 U.S. 279, 294
(2002). The Mobile-Sierra doctrine applies a more deferential
standard of review to preserve the terms of the bargain as
between the contracting parties. Atl. City, 295 F.3d at 14. But
when a rate challenge is brought by a non-contracting third
party, the Mobile-Sierra doctrine simply does not apply; the
proper standard of review remains the “just and reasonable”
standard in section 206 of the Federal Power Act.
In defense of the Mobile-Sierra provision, FERC argues
that the “public interest” standard will only apply to future
challenges to a narrow category of rates: the transition payments
and the final auction clearing prices from the Forward Market.
115 FERC at 62,335. This is not persuasive. It is equivalent to
arguing that FERC will use an illegal standard sparingly.
Despite the “limited” applicability of the public interest
standard, FERC’s approval of this agreement still deprives non-
settling parties of their statutory right to have rate challenges
adjudicated under the “just and reasonable” standard. And in
any event, we are skeptical of FERC’s characterization of the
Mobile-Sierra provision as “narrow” or “limited.” As
petitioners’ counsel noted at oral argument, if circumstances
25
change after a rate has initially been approved by the
Commission, then (under the settlement agreement) subsequent
challenges to that rate would be reviewed under the public
interest standard. Recording of Oral Arg. at 29:25-31:20. The
Mobile-Sierra provision thus departs from the usual “just and
reasonable” standard and makes it harder for petitioners to
successfully challenge rates in cases of changed circumstances.9
FERC also argues that in other recent cases, the
Commission has approved contracts that apply the “public
interest” standard to non-contracting third parties. 117 FERC at
61,727 n.103. This may show that the Commission’s policy has
been consistent – although even FERC concedes that is so only
since 2002 – but it does not necessarily support the policy’s
legality, since none of the cited orders have been subject to
judicial review on the Mobile-Sierra issue. FERC states that
“there is no Commission or court precedent that supports a
finding that a non-signatory may unilaterally seek changes to a
Mobile-Sierra ‘public interest’ contract under the ‘just and
reasonable’ standard of review.” 115 FERC at 62,335 (citation
omitted). It could just as easily be said that there is no “court
precedent” that supports altering third parties’ statutory rights
based on a contract that they refused to sign. Moreover, while
FERC can find no “precedent” in support of petitioners’
arguments, the relevant statutory language is quite clear: section
9
FERC asserts that third parties’ interests are adequately
safeguarded because under Mobile-Sierra, the Commission “retains
significant authority to protect non-parties to the settlement from
harm.” 115 FERC at 62,335. But whatever comfort third parties
might derive from FERC’s continued ability to defend their interests,
the existence of such powers does not justify derogation of the
statutory right to “just and reasonable” review of rates.
26
206 of the FPA states that “upon complaint” the Commission
must determine whether the challenged rate is “unjust,
unreasonable, unduly discriminatory or preferential.” 16 U.S.C.
§ 824e(a). Lastly, FERC argues that the Mobile-Sierra
provision is necessary to promote price certainty and contract
stability. As explained above, the Mobile-Sierra doctrine is
designed to ensure contract stability as between the contracting
parties – i.e., to make it more difficult for either party to shirk
its contractual obligations. Atl. City, 295 F.3d at 14. It makes
no sense to say that the values of “stability” and “certainty” are
furthered by applying the deferential standard of review to the
eight parties that refused to agree to the terms of the settlement.
V.
Petitioners also contend that FERC’s approval of the
Forward Market exceeds the Commission’s jurisdiction because
it forces utilities to purchase a specific amount of capacity.
Petitioners assert that FERC lacks jurisdiction under the Federal
Power Act, which provides that the Commission “shall not have
jurisdiction . . . over facilities used for the generation of electric
energy.” 16 U.S.C. § 824(b)(1). In response, FERC argues that
the settlement agreement only addresses prices, which are
unquestionably within FERC’s jurisdiction. The Commission’s
interpretation of the scope of its jurisdiction is entitled to
Chevron deference. Okla. Natural Gas Co. v. FERC, 28 F.3d
1281, 1283-84 (D.C. Cir. 1994).
We agree with the Commission that the Forward Market
itself does not exceed FERC’s jurisdiction. The Federal Power
Act grants the Commission broad authority over “the sale of
electric energy at wholesale in interstate commerce.” 16 U.S.C.
§ 824(b)(1). The protracted litigation over Must-Run
27
agreements, the locational installed capacity market, and the
Forward Market is fundamentally a dispute over the rates that
will be paid to suppliers of capacity. The two key components
of the settlement agreement – the transition payments and the
Forward Market auctions – “establish a mechanism and market
structure for the purchase and sale of installed capacity at
wholesale . . . [and] determine the prices for those sales.” 115
FERC at 62,339 (emphasis added). Of course, it is a basic
principle of economics that prices affect supply – the auction
clearing prices in each sub-region of New England will certainly
influence the amount of capacity that generators are willing to
supply. Indeed, one of the primary purposes of the new market
mechanism is to “provide[] incentives to attract new
infrastructure where needed.” Id. at 62,316. But an incentive is
not a mandate. The mere fact that the Forward Market will
encourage new supply does not mean that it regulates “facilities
used for the generation of electric energy.” 16 U.S.C. §
824(b)(1). Rather, the Forward Market is designed to address
pricing issues, which fall comfortably within FERC’s statutory
authority over “the sale of electric energy at wholesale in
interstate commerce.” Id. We have previously held that the
Commission has jurisdiction over a “deficiency charge” that was
imposed upon transmission providers who failed to procure a
specified amount of capacity:
The deficiency charge . . . must be deemed to be within the
Commission’s jurisdiction because it [ ] represents a charge
for the power and service the overloaded participant
receives – or it is at least a rule or practice affecting the
charge for these services.
Municipalities of Groton v. FERC, 587 F.2d 1296, 1302 (D.C.
Cir. 1978).
28
In support of their jurisdictional argument, petitioners focus
heavily upon the “installed capacity requirement,” which is “the
total amount of capacity required by the system to meet peak
load plus a reserve margin.” 115 FERC at 62,338-39 n.177.
This requirement ensures that transmission providers have
procured enough capacity to maintain the reliability of the grid.
Under the settlement agreement, transmission providers must
purchase at least enough capacity in the annual auctions to meet
their installed capacity requirements. Id. at 62,307. The
Forward Market simply takes the capacity requirement as a
given and uses it as an input into the auction mechanism. As
FERC explained, “[the Forward Market] only establishes a
market design for determining capacity charges; it does not alter
[the capacity requirement] or in any way determine the
appropriate amount of capacity that must be available.” 117
FERC at 61,730. Rather, the capacity requirement is computed
by ISO-New England in conjunction with a regional standard-
setting body. 115 FERC at 62,338-39 n.177. To be sure, the
methodology for calculating the installed capacity requirement
is part of the ISO’s tariff, and must be filed with the
Commission for approval. See ISO New England, Inc., 120
FERC ¶ 61,234 at 61,974-75 (2007). To the extent petitioners
believe they are aggrieved by the ISO’s installed capacity
requirement, and more specifically, FERC’s approval of that
requirement on jurisdictional grounds, they may challenge that
agency action. In fact, petitioners have already filed such a suit.
Conn. Dep’t of Public Util. Control v. FERC, No. 07-1375 (D.C.
Cir. filed Sept. 19, 2007). But the Forward Market does not
exceed FERC’s jurisdiction merely because it incorporates the
exogenously-determined installed capacity requirement into the
auction mechanism. We thus deny the petition for review with
respect to the jurisdictional issue.
29
VI.
For the aforementioned reasons, the consolidated petitions
for review are granted with respect to the Mobile-Sierra issue,
denied with respect to all other issues, and remanded to the
Commission for further proceedings.
So ordered.