Respondents Brief — Allco Finance Limited, Petitioner v. Robert J. Klee, Commissioner, Connecticut Department of Energy and Environmental Protection, et al.

No. 17-737

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In The

Supreme Court of the United States

-----------------------------------------------------------------ALLCO FINANCE LIMITED,

Petitioner,

v.

ROBERT KLEE, in his Official Capacity as

Commissioner of the Connecticut Department of Energy

and Environmental Protection, KATHERINE S. DYKES,

JOHN W. BETKOSKI, III and MICHAEL CARON,

in their Official Capacities as Commissioners of the

Connecticut Public Utilities Regulatory Authority,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

-----------------------------------------------------------------BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

-----------------------------------------------------------------GEORGE JEPSEN

Attorney General

of Connecticut

ROBERT D. SNOOK

Counsel of Record

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

55 Elm Street, P.O. Box 120

Hartford, CT 06141-0120

Robert.Snook@ct.gov

(860) 808-5250

Counsel for Respondents

Dated: December, 2017

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

In order to meet important state environmental

and other public policy goals, the Connecticut

Commissioner of the Department of Energy and

Environmental

Protection

(“DEEP”

or

the

“Department”) issued a series of requests for proposals

(“RFPs”) seeking to procure new sources of renewable

energy. Allco, a developer of renewable energy, sued

claiming that the Federal Power Act, 16 U.S.C. § 824

et seq., granted exclusive jurisdiction over wholesale

energy rates to the Federal Energy Regulatory

Commission (“FERC”) and therefore that these state

procurement efforts intruded on this exclusive

authority and were preempted.

The Second Circuit, relying in large part on this

Court’s recent decision in Hughes v. Talen Energy

Marketing, LLC, 136 S. Ct. 1288 (2016), held that the

District Court properly dismissed the case because the

state renewable energy procurement programs did not

regulate wholesale energy sales and thus were outside

the scope of FERC’s jurisdiction under the Federal

Power Act.

The question presented is:

Did the Second Circuit correctly hold that

Connecticut’s competitive procurements do

not violate the Federal Power Act?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF AUTHORITIES .................................

iii

INTRODUCTION ................................................

1

STATEMENT OF THE CASE..............................

3

A.

CONNECTICUT’S REGULATORY

SCHEME ...................................................

3

Renewable Energy Procurements .......

5

THE PROCEEDINGS BELOW .................

6

REASONS FOR DENYING THE PETITION ......

8

B.

I.

Connecticut’s RFPs Are A Straightforward

Application of Hughes and Are Not

Preempted ..................................................

9

A. The Commissioner’s Actions Are Within

His Authority ....................................... 11

B. Bilateral Contracts Do Not Violate

Hughes ................................................. 12

II.

Judicial Colloquy Is Not the Decision of

the Court .................................................... 15

CONCLUSION..................................................... 16

iii

TABLE OF AUTHORITIES

Page

CASES

Allco Renewable Energy Ltd., 154 FERC

¶ 61,007 (2016) ..........................................................7

Allco v. Klee, 805 F.3d 89 (2d Cir. 2015) ................. 6, 11

Allco v. Klee, No. 3:13-CV-1874-JBA, 2014 WL

7004024 (D. Conn. Dec. 10, 2014) .............................6

Entergy Nuclear Vermont Yankee, LLC v.

Shumlin, 733 F.3d 393 (2d Cir. 2013) ............... 11, 12

Hughes v. Talen Energy Marketing, LLC, 136

S. Ct. 1288 (2016) ............................................ passim

Morgan Stanley Capital Group Inc. v. Public

Util. Dist. No. 1 of Snohomish Cty., 554 U.S.

527 (2008) ................................................................13

Nantahala Power & Light Co. v. Thornburg, 476

U.S. 953 (1986) ........................................................11

New York v. FERC, 535 U.S. 1 (2002) .........................11

S. Cal. Edison Co. San Diego Gas & Elec. Co., 71

FERC P 61269 (June 2, 1995) .................................12

STATUTES

16 U.S.C. § 824 ..............................................................1

16 U.S.C. § 824a-3(h) ....................................................6

Conn. Gen. Stat. § 16-245a ...........................................3

Conn. Gen. Stat. § 16a-3a .............................................3

Conn. Gen. Stat. § 16a-3f .......................................... 4, 5

iv

TABLE OF AUTHORITIES—Continued

Page

Conn. Gen. Stat. § 16a-3j .......................................... 4, 5

Conn. Gen. Stat. § 22a-200a .........................................3

Conn. Gen. Stat. § 22a-200c .........................................3

REGULATIONS

P.A. 13-303 ................................................................ 4, 5

P.A. 15-107 ................................................................ 4, 5

RULES

Sup. Ct. R. 10 ............................................................ 8, 9

1

INTRODUCTION

As this Court has noted in its recent decision in

Hughes v. Talen Energy Marketing, LLC, 136 S.Ct.

1288 (2016) (“Hughes”), the Federal Power Act, 16

U.S.C. § 824 et seq. (“FPA”) is a careful and deliberate

exercise in federalism, dividing regulatory authority

over the generation and transmission of electric energy

between the Federal Energy Regulatory Commission

(“FERC”), for the federal government, and the states.

The FPA grants FERC full jurisdiction over interstate

wholesale rates and interstate transmission, but

reserves solely to the states regulatory authority over

retail rates and the sources of generation.

Connecticut has embarked on a broad and

transformative program of reducing carbon and

other air pollutant emissions while correspondingly

increasing its reliance on renewable energy. Consistent

with that goal, the Commissioner of the Connecticut

Department of Energy and Environmental Protection

(“Commissioner” or “Defendant”) has been granted

the authority by state law to procure new renewable

energy resources. Once the Commissioner has

reviewed bids for new projects, and determined which

projects best meet Connecticut’s program goals, the

Commissioner then directs the state’s regulated

utilities to enter into negotiations for binding

traditional bilateral contracts. Through these energy

procurements, the Commissioner directs the mix of

energy resources for the utilities under his authority

as permitted by the FPA. Nowhere in state law is the

Commissioner given any authority to set interstate

2

rates or otherwise intrude on FERC’s authority. All

rates established in the contracts are set by the

bidding developers.

Petitioner Allco Finance Limited (“Allco”), a

developer of solar energy, bid into one of the

Commissioner’s requests for proposal (“RFP”), but not

another. Allco sued in both cases claiming that the

state’s action in directing utilities to contract for

renewable energy is itself an intrusion into FERC’s

exclusive jurisdiction and thus preempted.1

This Court should reject Petitioner’s request. The

Connecticut RFPs are purely an exercise of the state’s

expressly reserved authority under the FPA over the

resource mix of its domestic utilities. The method

used by the state to procure new resources was the

traditional bilateral contract that this Court has

expressly approved in its recent FPA decision in

Hughes. The state did not, and cannot, set interstate

rates or otherwise intrude upon FERC’s exclusive

jurisdiction and there is nothing presented in this case

that should cause the Court to revisit Hughes.

For all of these reasons, as set forth more fully

below, the Court should deny the petition.

------------------------------------------------------------------

1

Allco also raised a dormant Commerce Clause claim

against the state’s renewable portfolio standard but has not

included that claim in its petition for writ of certiorari.

3

STATEMENT OF THE CASE

A. CONNECTICUT’S REGULATORY SCHEME

The Connecticut General Assembly has decided

that it is the policy of the state to encourage new

renewable energy generation in order to meet the

needs of environmental regulatory programs.2 These

programs in Connecticut include the Global Warming

Solutions Act3 and the Regional Greenhouse Gas

Initiative4 designed to address climate change and

the Integrated Resources Plan5 and Renewable

Portfolio Standard6 designed to meet other important

environmental and energy-related goals. In addition,

the state already has a federal mandatory obligation

to reduce Connecticut’s air quality problems.

Currently, the entire state of Connecticut is in

violation of the ozone limits established under the

federal Clean Air Act.7 In totality, these various

statutes and programs grant the Commissioner

authority to take actions to increase the state’s

reliance on renewable energy and offset carbon

emissions.

2

See Conn. Gen. Stat. § 22a-200c et seq. (setting forth

requirements to reduce greenhouse gas emissions).

3

Conn. Gen. Stat. § 22a-200a.

4

Conn. Gen. Stat. § 22a-200c.

5

Conn. Gen. Stat. § 16a-3a.

6

Conn. Gen. Stat. § 16-245a.

7

U.S. Environmental Protection Agency, 8-Hour Ozone

(2008) Designated Area/State Information, available at https://

www3.epa.gov/airquality/greenbook/hbtc.html.

4

In order to implement the state policy goals of

carbon reductions, air quality and renewable energy,

the Connecticut legislature passed two public acts. The

first was Public Act (P.A.) 13-303, “An Act Concerning

Connecticut’s Clean Energy Goals.” Public Act 13-303

authorized the Commissioner to solicit proposals from

providers of renewable energy sources and “[i]f the

commissioner finds such proposals to be in the interest

of ratepayers including, but not limited to, the

delivered price of such sources, and consistent with the

requirements to reduce greenhouse gas emissions . . .

and in accordance with the policy goals outlined in

the [2013 Comprehensive Energy Strategy] . . . the

commissioner may select proposals . . . to meet up

to four percent” of the state’s electric load. Public

Act No. 13-303, § 6 (2013) (codified at Conn. Gen.

Stat. § 16a-3f ). Pet. App. 70a-71a. The Act further

specifies that the “commissioner may direct the electric

distribution companies to enter into power purchase

agreements. . . .” Id. See Pet. App. 10a-11a.

Two years later in P.A. 15-107, using very similar

language, the Connecticut General Assembly directed

the Commissioner to solicit additional contracts for

large-scale renewable energy projects as well as

large-scale hydropower and natural gas capacity.

P.A. 15-107, § 1 (2015) (codified at Conn. Gen. Stat.

§ 16a-3j). Pet. App. 14a fn5. Under both public acts,

the Commissioner must determine if the projects

submitted in response to the solicitation are consistent

with state environmental and renewable energy goals

and if they are in the ratepayers’ interest. If so, the

5

Commissioner is authorized to direct utilities to enter

into such contracts. Conn. Gen. Stat. §§ 16a-3f, 16a-3j.

Connecticut law does not permit the Commissioner to

set wholesale electric energy rates.

Renewable Energy Procurements

The Commissioner issued several RFPs based

on the authority of P.A. 13-303 and P.A. 15-107. The

first was on July 8, 2013, when the Connecticut

Department of Energy and Environmental Protection

(“DEEP”) released a Notice of Request for Proposals

issued pursuant to P.A. 13-303 (“2013 Procurement”).

Pet. App. 11a. On July 22, 2013, Allco submitted

five solar power bid proposals alongside forty-two

other project submissions. After an extensive review

and consideration of the forty-seven bids, the

Commissioner directed the electric distribution

companies to negotiate possible purchase power

agreements (“PPAs”) with two selected projects, the

Fusion Solar Center, a 20 megawatt solar project,

and the Number Nine Wind Farm, a 250 megawatt

wind power project. Pet. App. 11a, 71a. None of

Plaintiff ’s projects were selected. Pet. App. 11a. The

Connecticut Public Utilities Regulatory Authority

(“PURA”), after a full hearing and review required

by statute, approved the two PPAs.8

8

Application for Approval of Class I Renewable Power

Purchase Agreements Resulting from Department of Energy

and Environmental Protection’s July 8, 2013 Requests for

Proposals pursuant to Section 6 of P.A. 13-303, Final Decision,

6

Subsequently, a three state renewable energy

procurement draft RFP was issued on February 26,

2015, and issued in final form on November 12, 2015

(“2015 RFP”) by the Commonwealth of Massachusetts,

and the States of Connecticut and Rhode Island. Pet.

App. 14a.

B. THE PROCEEDINGS BELOW

Allco brought several actions in district court.

The initial case, Allco Fin. Ltd. v. Klee, et al., No.

3:13-CV-1874 JBA, was brought by Allco against

the Defendant DEEP Commissioner regarding the

2013 energy procurement effort. Pet. App. 11a-12a.

The District Court (Arterton, J.) dismissed Allco’s

complaint, finding both a lack of standing and further

that the Commissioner did not set wholesale rates

and thus the procurement could not be barred as

preempted by the FPA. Allco I, No. 3:13-CV-1874 JBA,

2014 WL 7004024 (D. Conn. Dec. 10, 2014), A166-67.

Pet. App. 72a. The Second Circuit, Allco v. Klee, 805

F.3d 89, 93 (2d Cir. 2015) (Allco II), concluded that Allco

failed to exhaust its administrative remedies with the

FERC. Pet. App. 13a. Allco responded to the Court’s

ruling by filing an administrative implementation

challenge under the Public Utilities Regulatory

Policies Act of 1978, 16 U.S.C. §824a-3(h) (“PURPA”),

with the FERC. Allco Renewable Energy Ltd., FERC

Docket No. EL16-11-000 (filed Nov. 9, 2015). FERC

PURA Docket No. 13-09-19 (October 23, 2013), available at http://

www.ct.gov/pura/docketsearch.

7

responded in its January 8, 2016, Notice of Intent Not

to Act, declining to take action under PURPA. Allco

Renewable Energy Ltd., 154 FERC ¶ 61,007 (2016).

Pet. App. 128a-129a.

Subsequently, Allco brought another case, Allco

Fin. Ltd. v. Klee et al., No. 3:15-CV-608 CSH (Allco III),

filed on April 26, 2015, which is based largely upon

the legal theory advanced in Allco I against both

Defendants Klee and the PURA Commissioners. Pet.

App. 14a-15a. Allco then brought a very similar action

on March 30, 2016, against the same defendants and

including the same basic legal theory in Allco Fin. Ltd.

v. Klee, et al., No. 3:16-CV-508 CSH (Allco IV). Pet. App.

16a. Allco IV restates the essential allegations of Allco

I and Allco III, namely, that the 2013 RFP was in

violation of the Federal Power Act’s prohibition on

state regulation of wholesale electricity sales—subject

only to the limited exception for sales by statutorily

defined clean energy qualifying facilities (“QFs”),

such as Allco’s, under PURPA and that the 2015

Procurement should also be preempted. Specifically,

Allco shifted its theory somewhat from asserting

that the Commissioner could not set rates to the

broader theory that the Commissioner cannot direct or

“compel” utilities to enter into wholesale electric

contracts. Pet. App. 15a-17a. Allco asserts that any

such contract, directed by the Commissioner, is

prohibited by this Court’s decision in Hughes. Pet.

Cert. at 21. Allco IV also added a new count claiming

that the state’s Renewable Portfolio Standard violates

the dormant Commerce Clause because it does not

8

permit Allco to sell renewable energy certificates

generated in Georgia to Connecticut utilities. Pet. App.

40a. This count appears to have been abandoned.

Allco III and Allco IV were dismissed by the trial

court and appealed to the Second Circuit. Pet. App.

60a, 13a-14a. On appeal, Allco continued to press its

preemption claim, arguing that the Commissioner

violates the Federal Power Act if he “compels” utilities

to enter into contracts with generators and that the

state’s Renewable Portfolio Standard violates the

dormant Commerce Clause. The Second Circuit held

that Allco had failed to state a claim for preemption

because the Commissioner had directed the utilities

to enter into traditional bilateral contracts as was

precisely permitted by Hughes and, therefore this

case was outside of FERC’s exclusive jurisdiction. Pet.

App. 28a-40a. In addition, the court held that the

Commissioner’s actions were well within the state’s

authority under the FPA to regulate state utilities.

Pet. App. 34a.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

Rule 10 of the Rules of the Supreme Court

describes the considerations governing the review of a

petition for writ of certiorari. Rule 10 notes that a

petition for writ of certiorari will be granted only for a

compelling reason and that the Court may consider

whether there is a conflict in the United States Courts

of Appeals, whether a state court of last resort has

9

decided a federal question in a way that conflicts with

another state or federal court, or if the petition raises

an important question of federal law that needs to be

settled by this Court. See Sup. Ct. R. 10.

There is no split in the Courts of Appeals in this

case. Furthermore, the case below was decided by a

federal court and therefore no state court of last resort

has issued a decision contrary to federal law. Finally,

the case below is a straightforward application of a

recent decision of this Court and therefore there is no

important issue of federal law that this Court has not

already decided.

Specifically, the Second Circuit correctly held

that Allco has failed to state a preemption claim

because the Commissioner acted wholly within the

authority the FPA preserved to the states with respect

to environmental and utility integrated resource

planning and has not intruded upon FERC’s exclusive

authority over wholesale electric rates.

I.

Connecticut’s RFPs Are A Straightforward

Application Of Hughes and Are Not

Preempted

Allco argues that Connecticut authorities

“compelled” utilities to enter into contracts for the

wholesale sale of electricity that are solely within the

jurisdiction of FERC. Allco asserts that “Connecticut’s

decision to force a utility to enter a wholesale power

contract constitutes regulation in the field of wholesale

10

energy sales, which is categorically field preempted.”

Pet. Cert. at 9.

Allco adds that the state’s actions in this case are

virtually identical to those struck down by this Court’s

decision in Hughes, which held that contracts tethered

to FERC markets are preempted by the FPA. Pet. Cert.

at 21. Finally, Allco repeatedly quotes a colloquy

between counsel and Justices Kagan and Alito during

oral argument for Hughes to the effect that if a

contract for the wholesale sale of electricity is subject

to FERC’s jurisdiction and any state action affecting

that contract is preempted. Pet. Cert. at 3, 20. Allco

concludes claiming that the Second Circuit decision,

if permitted to stand, would “create[ ] a massive

loophole” in FERC’s exclusive jurisdiction under the

FPA. Pet. Cert. at 13.

These claims lack merit because, as the Second

Circuit found, the state did not “compel” or obligate its

utilities to enter into contracts and it was possible that

utilities and bidders would not come to terms. Pet. App.

28a-30a. Connecticut did not set wholesale rates in

violation of the FPA or otherwise “tether” the planned

contracts to any FERC market and the bilateral

contracts entered into were of the type expressly

permitted under Hughes. Pet. App. 40a. Consequently,

there is no massive loophole in the FPA because the

state has carefully conducted its procurements in a

manner consistent with this Court’s rulings. Finally,

comments of one or more judges in the context of oral

argument are not the holding of the court and are not

law and Allco’s reliance upon them cannot advance its

argument.

11

A. The Commissioner’s Actions Are Within

His Authority

Federal law gives FERC authority over wholesale

electric rates but preserves the authority of states to

require regulated utilities to enter into bilateral

contracts with generators for clean renewable energy

and to direct the utilities mix of clean and other

resources. Pet. App. 5a; see Allco v. Klee, 805 F.3d 89,

91 (2d Cir. 2015) (Allco II); Entergy Nuclear Vermont

Yankee, LLC v. Shumlin, 733 F.3d 393, 432 (2d Cir.

2013) (quoting Nantahala Power & Light Co. v.

Thornburg, 476 U.S. 953, 966 (1986)). As the Second

Circuit noted, the 2013 and 2015 RFPs resulted

in straightforward, wholly unexceptional bilateral

contracts for clean energy between the utilities and

generators. Pet. App. 34a. The only action of the

Commissioner was to review the proposed contracts to

see if they met state policy goals, all of which was

clearly within the state’s authority to direct the

resource mix of regulated utilities. Pet. App. 10a.

This Court has explained that under the FPA,

states retain “authority over . . . administration of

integrated resource planning and . . . authority over

utility generation and resource portfolios. . . .” New

York v. FERC, 535 U.S. 1, 24 (2002) (emphasis added),

citing Order No. 888, at 31,782, n.544. Further, the

FPA clearly permits states to “direct the planning and

resource decisions of utilities under their jurisdiction.”

Entergy Nuclear Vermont Yankee, LLC v. Shumlin, 733

F.3d 393, 417 (2d Cir. 2013).

12

It is therefore beyond dispute that states may “order

utilities to build renewable generators themselves,

or . . . direct retail utilities to ‘purchase electricity

from an environmentally friendly power producer in

California or a cogeneration facility in Oklahoma, if

[they] so choose[ ].’ ” Entergy Nuclear Vermont Yankee,

LLC v. Shumlin, 733 F.3d 393, 417 (2d Cir. 2013), citing

S. Cal. Edison Co. San Diego Gas & Elec. Co., 71 FERC

P 61269 at *8 (June 2, 1995).

Thus, it is clear that state authorities retain full

jurisdiction over the resource portfolio planning of

regulated utilities and can direct utilities to purchase

clean (or other) energy as required.

B. Bilateral Contracts Do Not Violate

Hughes

Allco clams that “State-coerced bilateral

contracting” is inconsistent with Hughes. Pet. Cert.

at 2. The use of bilateral contracts is fully consistent

with Hughes.

As an initial matter, the claim that the state

“coerced” anyone is flatly untrue. As the court below

found, utilities were fully able to decline to sign

contracts if negotiations were unsuccessful. Pet. App.

29a-30a.

Beyond that, the record shows that the 2013 and

2015 RFPs resulted in standard bilateral contracts.

Both RFPs resulted in the Commissioner directing

state utilities to negotiate contracts with prospective

13

generators. Pet. App. 30a. These contracts, by and

between the utilities and generators, were clearly

traditional bilateral contracts for the purchase and

sale of electricity, as the court below found. Pet. App.

34a.

This Court’s decision in Hughes notes that the

FPA vests exclusive jurisdiction over wholesale

energy sales in the FERC. FERC, in turn, exercises

its jurisdiction in two ways:

Interstate

wholesale

transactions

in

deregulated markets typically occur through

two mechanisms. The first is bilateral

contracting: [load serving entities] sign

agreements with generators to purchase a

certain amount of electricity at a certain

rate over a certain period of time. After the

parties have agreed to contract terms, FERC

may review the rate for reasonableness. See

Morgan Stanley Capital Group Inc. v. Public

Util. Dist. No. 1 of Snohomish Cty., 554 U.S.

527, 546-548 (2008). . . . Second, [regional grid

operators] administer a number of competitive

wholesale auctions. . . .

Hughes, 136 S. Ct. at 1292-93 (emphasis added). Thus,

this Court ruled that traditional bilateral contracting

is permissible under the FPA and in fact went further

noting that bilateral contracts are arrangements

“which FERC has long accommodated. . . .” Id. at 1299.

The Second Circuit reviewed the record before it

and concluded that “the contracts . . . before us are the

kind of traditional bilateral contracts between utilities

14

and generators . . . [and] are . . . precisely what the

Hughes court placed outside its limited holding.” Pet.

App. 34a.

Allco then asserts that the state procurements are

“economically indistinguishable” to the prohibited

transactions in Hughes. Pet. Cert. at 21. In reality,

this Court explicitly differentiated the contracts for

differences in Hughes from the standard bilateral

contracts. Hughes, 136 S. Ct. at 1299. Specifically,

the Hughes contract “involve[d] the capacity auction

administered” by a regional grid operator. Id. at 1293.

This Court noted that the State of Maryland had, in

that case, required a generator to participate in the

regional auction, but at a different rate from the

FERC-approved market rate and thus “Maryland’s

program invades FERC’s regulatory turf.” Id. at 1297.

This Court noted that “the contract at issue here

differs from traditional bilateral contracts in this

significant respect: The contract for differences does

not transfer ownership of capacity from one to another

outside the auction. Instead, the contract for differences

operates within the auction. . . .” Id. at 1299.

This Court concluded:

So long as a State does not condition payment

of funds on capacity clearing the auction, the

State’s program would not suffer from the

fatal defect that renders Maryland’s program

unacceptable.

Id.

15

In its decision below, the Second Circuit applied

the reasoning of Hughes and found “important and

telling distinctions” between the Maryland and

Connecticut programs. The court found that the

Connecticut RFPs were not tethered to the market

and resulted in the actual purchase of electricity.

Pet. App. 34a. Thus, the court concluded that the

contracts at issue were not contracts for differences,

but rather traditional bilateral contracts. Id.

The Commissioner has issued a competitive

renewable energy RFP under state law to address state

environmental and resource adequacy needs. Nothing

in state law permits the Commissioner to change,

modify, or affect regional energy auction prices or in

any manner intrude upon FERC’s jurisdiction. The

contracts that resulted from the RFPs were traditional

bilateral contracts that were never forced upon any

utility and were not tethered to participation in any

FERC auction market. Therefore, the state’s actions

are not preempted by the Federal Power Act and Allco

cannot prevail on the merits of its case.

B. Judicial Colloquy Is Not the Decision of

the Court

Allco argues that the “permissibility of Statecoerced bilateral contracts was rejected out-of-hand at

oral argument” in Hughes. Pet. Cert. at 2, 20. Allco

quotes an excerpt from oral argument to the effect that

“at least two justices rejected” the claim that states

have the “right under the FPA to compel or direct its

16

utilities to enter into wholesale power contracts. . . .”

Pet. Cert. at 2.

The formal decision of a court is its published

decision. What a judge or judges say at oral argument

is not the ruling of the court.

------------------------------------------------------------------

CONCLUSION

For all of the reasons set forth herein, the petition

for a writ of certiorari should be denied.

Respectfully submitted,

GEORGE JEPSEN

Attorney General

of Connecticut

ROBERT D. SNOOK

Counsel of Record

Assistant Attorney General

OFFICE OF THE

ATTORNEY GENERAL

55 Elm Street, P.O. Box 120

Hartford, CT 06141-0120

Robert.Snook@ct.gov

(860) 808-5250

Counsel for Respondents

Dated: December, 2017