The opinion
On Petition for Rehearing and Suggestion for Rehearing En Banc
ORDER
PER CURIAM.
On consideration of respondent’s petition for rehearing and of the brief of the American Paper Institute, Inc., in support thereof, it is
ORDERED by the Court that the petition for rehearing is denied.
A statement of the panel is attached.
MEMORANDUM
In view of the distortions of the court’s opinion served up in the petition for rehearing and suggestion for rehearing en banc filed by the Federal Energy Regulatory Commission (FERC or Commission), we believe it appropriate to restate the essence of the court’s decision. FERC attacks two portions of the decision: (1) the disposition of the full avoided cost rule; (2) the rejection of FERC’s grant of blanket authority to cogenerators to “interconnect” with electric utilities. The Commission, with respect to both challenges, has read into the opinion much more than the court put there.
As to “avoided cost,” FERC charges the court with having declared the Commission’s rule “inconsistent with the statute.” Petition at 2. The court did no such thing. It simply remanded the matter because the Commission had failed to explain “its rationale and process of consideration.” At 1233. * The opinion plainly states that “[t]he Commission may be right in its conclusion, but it needs to make its reasoning and findings explicit.” At 1234. Some of the suggested considerations expressed in the opinion may indeed have ready answers. See at 1234-1237. If that is so, it should not be burdensome for FERC to supply them. But the central point made by the court, that FERC never bothered to present a cogent justification of its rule in light of the statutory instructions, at 1232-1235, is not vulnerable to the broadside that the court acted “out-of-bounds.” Petition at 10. Nor is a petition for rehearing the proper place to supply the reasoned explanation the court’s opinion requires.
FERC takes similar liberties with the court’s treatment of the “interconnection” issue. The Commission apparently acknowledges that the court correctly conveyed the literal meaning of the statutory sections in question, but complains that the “necessary consequence” of such a literal reading is to force “full dress evidentiary adjudication.” Petition at 14. The “consequence” FERC describes, however, is not inevitable. As the opinion points out: “[T]he Commission need not impose substantial administrative burdens ... but rather can adopt streamlined procedures. If . .. even streamlined procedures are too burdensome, the necessary amendment must come from Congress.” The court was not insensitive to the objective FERC sought to accomplish, but as the opinion points out, a court is not the proper forum to repair a congressional product that may have been less than fully considered.
Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MACKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS, GINSBURG and BORK, Circuit Judges.
ORDER
PER CURIAM.
Respondent’s suggestion for rehearing en banc and the brief of the American Paper Institute, Inc., in support thereof have been circulated to the full Court and a majority of the Court has not voted in favor thereof. On consideration of the foregoing, it is
ORDERED by the Court that the aforesaid suggestion is denied.
*22 J. SKELLY WRIGHT, TAMM, MacKINNON, ROBB, HARRY T. EDWARDS and BORK, Circuit Judges, did not participate in this order.
The court noted particularly that FERC adopted as its rule the upper limit Congress authorized and did not clarify whether it considered and, if so, why it rejected a more flexible approach, for example, “permitfting] state commissions to set rates within a range — e.g., 80-100 percent [of full avoided cost] — authorized by the Commission.” At 1234.