# New York State Electric & Gas Corp. v. Federal Energy Regulatory Commission > Court of Appeals for the Second Circuit · September 30, 1980 · 638 F.2d 388 URL: https://www.frixlaw.com/law-library/cases/8912627 ## Case - **Full name:** NEW YORK STATE ELECTRIC & GAS CORPORATION v. FEDERAL ENERGY REGULATORY COMMISSION, Village of Penn Yan, New York, Municipal Electric Utilities Association of New York State, Intervenors - **Court:** Court of Appeals for the Second Circuit - **Decided:** September 30, 1980 - **Citations:** 638 F.2d 388 - **Precedential status:** Published - **Opinion:** Concurring in part by Goettel - **Judges:** Goettel, Graafeiland, Kearse - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8912627 ## Opinion text GOETTEL, District Judge (concurring and dissenting): While I do not disagree with the analysis of the law in the comprehensive opinion of the Court, I dissent from the conclusion in Part II-C that the modification of the contract NS-11 by the Commission amounts to the requiring of wheeling, thereby necessitating compliance with the statutory prerequisites of §§ 211 and 212 of the FPA. My contrary conclusion is restricted to the facts of this case, which show the minimal effect of the modification on the amount of power being wheeled. A respectable argument can be made that the Commission’s modification does not compel wheeling at all. NYSEG agreed with PASNY in 1961 (in NS-11), to wheel PASNY power to municipalities, including the Village of Penn Yan, in exchange for benefits to be received by NYSEG. In 1962, NYSEG, in exchange for $95,910.48, released Penn Yan from its 1956 agreement to purchase power from NYSEG, enabling Penn Yan to purchase its power from PAS-NY and have that power transmitted over NYSEG lines under the 1961 NYSEG-PASNY contract. In accordance with the 1962 agreement between NYSEG and Penn Yan, NYSEG wheels the power to the Village, which then transmits it to its customers. Thus, the addition of the Excell Estates customers does not involve any additional transmission by NYSEG in terms of distance. The Commission found that the territorial restriction removed by the modification served to limit only the use rather than the amount of power. Consequently, the modification did not augment NYSEG’s wheeling obligation and thus was not, per se, a wheeling order. 1 As a practical matter, of course, increasing the permissible uses of the power Penn Yan receives over NYSEG lines could have the effect of increasing the amount of that power. Realistically, if the Village of Penn Yan were merging with another village of equal size, the effect would be to double immediately the amount of power to be wheeled. If that were the case here, it would be hard to argue with the position of the Court. But Excell Estates is composed of only twenty-seven houses. The additional power NYSEG is required to wheel to Penn Yan for those additional twenty-seven houses, in the context of other variables affecting the amount of power to be wheeled, is de minimis. When NYSEG agreed to wheel PASNY power to Penn Yan, it had no assurance that the Village would not grow in population or consumption of electric power. Within the old territorial limits, the number of customers could have increased, moderately or even drastically. In fact, it did not. According to official United States census figures, 2 the population of Penn Yan de-f *404 dined between 1960 and 1970, despite the annexation of Excell Estates. On the other hand, even though its population declined, Penn Yan’s consumption of electric power, like that of the nation as a whole, 3 probably increased substantially. Given these facts, I view the addition of Excell Estates (constituting between one percent and two percent of the population of the Village of Penn Yan) as having a de minimis effect on the amount of power wheeled to Penn Yan. Consequently, I would not require the Commission to comply with §§ 211 and 212 of the FPA before modifying the wheeling agreement to allow that effect. The same considerations apply in part to the decision of the Court requiring a hearing pursuant to § 206 of the FPA. However, PASNY has requested such a hearing, and the precedential effect of striking the territorial limitation for all of the villages covered by the original 1961 contract 4 is involved. (Some of those villages may have had material changes in their geographical boundaries.) Consequently, there is more reason for requiring such a hearing than there is for requiring the Commission to comply with §§ 211 and 212 before deciding whether NYSEG should assist in servicing an additional twenty-seven customers in the Village of Penn Yan. . All of the existing authorities concerning the inability of the Commission to compel wheeling seem to deal with cases in which there was no pre-existing wheeling agreement. . U.S. Dep’t of Commerce, 1970 Census Population, Vol. 34, § 1, at 34-14. . Between 1960, the year before the agreement at issue, and 1978, when the current dispute arose, average per capita energy consumption in the United States increased approximately fifty percent. U.S. Dep’t of Commerce, Bureau of the Census, Statistical Abstract of the United States 602 (100th ed. 1979). . The villages covered are Bath, Castile, Endicott, Greene, Groton, Marathon, Penn Yan, Silver Springs, and Watkins Glen; in addition, the contract covers Chautauqua-Cattaraugus Electric Cooperative and Steuben Rural Electric Cooperative. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8912627. Public record. Not legal advice.