# Reply Brief — Metropolitan Transportation Authority v. Federal Energy Regulatory Commission

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2308%3A7

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1085

## Text

FILED

| No. 86-736 FEB 4 3087

JOSEPH F. SrA. .i0L, JR
CLERK

—~ Gupreme Court, U.S.
N)

IN THE
Supreme Court of the United States

OCTOBER TERM, 1986

>

METROPOLITAN TRANSPORTATION AUTHORITY,

Petitioner,

oV.

Feper at ENERGY REGULATORY COMMISSION, et al.

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF IN SUPPORT OF CERTIORARI

RENEE SCHWARTZ

Counsel of Record
E710 SCALDAFERRI
BOTEIN Hays & SKLAR
200 Park Avenue
New York, New York 10166
(212) 867-5500

Attorneys for Petitioner

ARGUMENT ..

CONCLUSION

TABLE OF CONTENTS

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ii
TABLE OF AUTHORITIES

Cases
Aluminum Co. v. Central Lincoln Peoples’ Util. Dist.,
467 U.S. 300 (1984). <cccccsssciscnsnasneenean

FPC v. Texaco Inc., 417 U.S. 380 (1974) ................

FPC v. Transcontinental Gas Pipe Line Corp., 423
U.S. 326 (2976) ncccrcscssescosisacscniusedasenene

Grindstone Butte Project v. Kleppe, 638 F.2d 100 (9th
Clap. UDBE) ..ccccccensscsensnssnnanmnniaeeinaielninnnannnnnnnnnIn an

Hyrup v. Kleppe, 406 F. Supp. 214 (D. Colo. 1976),
aff'd, Nos. 76-1452, 76-1767 (10th Cir. Nov. 7,
PTT) .uncocesecccsessedsnnsscncushiainnsnssesilleseinninnnnannnnaa nnn

Regulatory Agency Opinions
MEUA v. PASNY, 23 FERC 9 61,031 (1983) .........

State of Vermont Public Service Board v. PASNY, 55
F.P.C. 1109 (1976) «.....csescccsemneeaeenane

Statutes
Bonneville Project Act, 16 U.S.C. § 832(b) ..0..00000..
N.Y. Pub. Auth. L. $9009 ...cccccccacseeeeee

PAGE

IN THE

a Court of the United States
OCTOBER TERM, 1986

co

METROPOLITAN TRANSPORTATION AUTHOR ae
Petitioner,
-\-

FEDERAL ENERGY REGULATORY COMMISSION, et al.
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

REPLY BRIEF IN SUPPORT OF CERTIORARI

ARGUMENT

Four customer groups and FERC have filed briefs in opposition
to the MTA’s Petition for Certiorari.' Vitally interested in
retaining the preference power themselves, these groups attempt
to have this Court deny the petition by suggesting that this case
involves nothing more than “a single disappointed litigant.” See,
MEUA Br. p. 3; see also MMWEC/CMECC Br. p. 4. But there
is more at stake than the entrenched preference customers would
have one believe. This is the first interpretation of the phrase
“public bodies” under the NRA. The final determination will
affect not only in-state and out-of-state governmental agencies
otherwise eligible to receive Niagara Power, but also the distribu-
tion of hydropower under other federal preference legislation.

1. The customer groups are the Municipal Electric Utilities Associ-
ation of New York State (“MEUA”), Massachusetts Municipal Whole-
sale Electric Company and Connecticut Municipal Electric Energy
Cooperative (“MMWEC/CMEEC”), and New Jersey Preference Bor-
oughs (“NJ”).

2

The far-reaching impact of this determination requires a decision
by this Court. Absent such direction, uncorrectible misalloca-
tions of a most valuable asset will continue, and a demonstrably
erroneous decision with vast economic and negative environmen-
tal impact will be used as a guideline for allocations.

We will first respond to the “procedural” arguments the parties
rely upon in opposing MTA’s Petition, and then very briefly
address only a few of the most egregious statements in connection
with the merits of the Second Circuit’s determination.

(1) The amounts involved. MEUA argues that since the
“loss” to the MTA may be only $6 million annually, the stakes
involved in this case are not sufficiently large to justify the inter-
vention of this Court. MEUA Br. p. 4.*. But the Niagara project
produces over 14.6 billion kilowatt hours of energy; and the sav-
ings, by reason of the cost differential between hydropower and
conventional power, amount to over a quarter of a billion dollars
annually. MTA Pet. p.8.° No party in opposition has cited any
support for the claim that certiorari should be granted only if the
petitioner by itself has a large enough stake to support the review.
Rather, the overall economic impact is what should be consid-
ered, and the effect here is more than enough to make this a
significant case for review.

(2) The number of agencies involved. Three of the opposing
parties claim that there is no other governmental agency which
would be affected by this Court’s review of the Second Circuit’s
determinatio. MMWEC/CMEEC Br. pp. 4-5; MEUA Br. pp.
2-4. They are not only mistaken, but also less than candid.

2. MMWEC and CMEEC admit that this case involves the alloca-
tion of a valuable resource (MMWEC/CMEEC Br. p. 5, n. 4), but go
on te attempt to distinguish other cases in which “economic impact” was
an element considered in granting certiorari, by saying that in those
cases there were other elements which, in part, motivated the Court to
grant the writ. There are always multiple elements which together
make a case worthwhile for review. Those elements exist here, too; and
the economic impact of the decision is one such element.

3. No question has been raised as to the amount of power or total
savings involved.

3

While this very case was before FERC with all these parties
actively participating, the Niagara Frontier Transportation
Authority (“NFTA”), which operates a mass transportation sys-
tem in Erie and Niagara counties, moved to intervene out-of-
time.‘ FERC denied NFTA’s motion because it believed that
NFTA’s interest was already represented by the MTA in this
proceeding.” More importantly, in New York State alone, some
of the public agencies which the Power Authority is permitted to
serve (for just one example, the New York City Housing Author-
ity) also may be adversely affected by the determination below.
See, N.Y. Pub. Auth. L. § 1005. MTA does not have the infor-
mation as to government agencies in Massachusetts, Connecticut,
New Jersey, and elsewhere that may qualify as public bodies and
receive Niagara hydropower, but governmental agencies like the
MTA and NFTA surely exist in those States and throughout the
country. In sum, the number of governmental agencies affected is
much greater than the opposing parties would have the Court
believe.

(3) The lack of conflict among the circuits. Both
MMWEC/CMEEC and MEUA also argue that certiorari
should be denied because there is currently no conflict among the
circuits, and because no conflict will arise since only the energy
distributed under the NRA and not energy distributed under any
other federal preference statutes will be affected by review in this
case. MMWEC/CMEEC Br. p. 4; MEUA Br. p. 5, n.3. Neither
contention is correct.

A conflict between circuits is not a prerequisite to certiorari
review. Indeed, in the absence of such a conflict, this Court has
in the past granted certiorari because of the “potential impor-
tance of a resolution on the merits” of an issue. See, FPC v.
Transcontinental Gas Pipe Line Corp., 423 U.S. 326, 334-35
(1976). ;

It is completely disingenuous to suggest that the determination
of what is a “public body” under the NRA will not impact the

4. Motion to Intervene on Behalf of NFTA, September 22, 1982.
5. Order Denying Motion to Intervene, October 4, 1982, p. 2.

4

determination of what is a “public body” under other federal
power acts. Perhaps the issue can best be put to rest by noting
that in this case MMWEC, CMEEC, and MEUA relied exten-
sively on decisions involving other federal preference statutes to
support their argument that the term “public bodies” should be
restrictively interpreted.” Ironically, in its Brief in Opposition to
the Cross Petition, MEUA relies on a case interpreting the
Bonneville Project Act to support its reading of the term “public
bodies” under the NRA. MEUA Br. in Opp., No. 86-942, p. 4.’
[he intervenors have urged that the authorities in respect of other
federal power acts may be relevant in interpreting the NRA;
applying the same test, this Court's review of the NRA language
should have an effect on the determination of what is a “public
body” under other federal power acts.

(4) This is a case of first impression. Concerned that the
MTA is correct in noting that important cases of first impression
can, and often do, warrant review, MMWEC and CMEEC now
claim that this is mot a case of “first impression.”
MMWEC/CMEEC Br. p. 4. They claim, instead, that this issue
was considered by FERC in Opinion 151A and by the Second
Circuit in PASNY v. FERC, 743 F.2d 93 (2d Cir. 1984)
(“PASNY~). This position is completely untenable because, as
MMWEC and CMEEC know, and as has been pointed out

6. See, e.g., Supplemental Brief of Intervenors in Support of FERC
on the “Public Bodies” Issue, pp. 31-40, MTA v. FERC, 796 F.2d 584
(2d Cir. 1986); MEUA Brief Opposing Exceptions, June 9, 1983, pp.
30-39 (FERC Nos. EL80-19, EL80-24); Reply Brief of MEUA,
November 17, 1982, pp. 22-23 (FERC Nos. EL80-19, EL80-24).
7. The citation by MEUA of Aluminum Co. v. Central Lincoln
Peoples’ Util. Dist., 467 U.S. 380 (1984) is helpful to the MTA for a j
second reason. As that case notes (/d. at 384), the definition of “public
bodies” under the Bonneville Project Act included “states, public power |
districts, counties, and municipalities, including agencies or subdivisions
of any thereof.” 16 U.S.C. § 832(b). Under that definition the MTA,
as a state agency, would be a “public body.” Moreover, the Court in
Aluminum Co. drew the distinction between public utilities, which are
to be given preference, and private utilities (investor-owned utilities )
which are not to be given preference. /d. at 398-99. In this pub-
lic/private dichotomy the MTA surely falls on the public, i.e. “prefer-
ence”, side.

———————————

5

before, the question of what is a “public body” under the NRA
was expre «ly eliminated from consideration in Opinion 151A on
due process grounds for failure to give adequate notice to the
MTA. MEUA v. PASNY (Opinion 151A), 23 FERC 1 61,031
(1983). In addition, MMWEC, CMEEC, and MEUVA were
parties to a stipulation in PASNY which expressly eliminated the
public body issue from consideration in that case.” There is no
basis for any honest suggestion that this is not a case of first
impression.

In order to further de-emphasize the novelty of this case and
the astonishing about-face by FERC on the “public body” issue,
MMWEC ‘and CMEEC also say that the MTA has “mis-
characterized” the Commission’s earlier decision in State of Ver-
mont Public Service Board v. PASNY, 55 F.P.C. 1109 (1976),
and that the term “public bodies” was not interpreted “simply in
accordance with its plain meaning” in that case.
MMWEC/CMEEC Br. p. 4. The earlier decision speaks for
itself and we believe our characterization is accurate, but it 1s
worth pointing out that FERC itself admits that in reaching its
decision in the case before this Court, it “overruled, in relevant
part, its prior decision in [Vermont]”. FERC Br. p.3, n.2.

MTA\’s Petition already discussed the question of whether the
decision below is in error, and, of course, that issue will be
addressed in greater detail if this petition is granted. However,
in the Briefs in Opposition, there are two points which address the
substance of the decision which require some immediate, albeit
short, response.

MTA has argued that in interpreting the NRA, the Courts are
required to consider the National Environmental Policy Act, the
Urban Mass Transportation Assistance Act of 1970, and the
Public Utilities Regulatory Policies Act of 1978. MTA Pet. pp.
20-24. MEUA’s response that these later statutes cannot be
considered to have “repealed by implication” any portion of the
NRA (MEUA Br. pp. 6-7) completely misses the point. MTA

8. See Letter Agreement, October 24, 1983, “So Ordered” and filed
October 28, 1983, PASNY v. FERC, 743 F.2d 93 (2d Cir. 1984).

6

has not and does not urge “repeai by implication;” on the con-
trary, it urges that the NRA and the subsequent environmental
acts referred to above be read together, and that the Congres-
sional purpose behind each of the acts be harmonized. See, e.g.,
Grindstone Butte Project v. Kleppe, 638 F.2d 100 (9th Cir.
1981) (Avoiding conflict between two prior acts and NEPA, and
holding that the Secretary of Interior is not only permitted but is
required to consider environmental issues in carrying out regula-
tory functions under pre-NEPA acts); Hyrup v. Kleppe, 406 F.
Supp. 214 (D. Colo. 1976), aff'd, Nos. 76-1452, 76-1767 (10th
Cir. Nov. 7, 1977) (Recognizing and implementing the court’s
plain duty to read two acts to avoid a conflict between them, and
expressly finding that the “public interest” requirement in an
earlier statute included such restrictions as might be necessary for
the protection of the environment as outlined in the later acts).

As their ultimate answer, the parties to this case have and
continue to argue that the MTA is not in the correct forum and
that it should petition Congress, not the Courts, to achieve its
desired result. See MMWEC/CMEEC Br. p. 6; N.J. Br. pp. 3-
4. Wedo not agree that we are not entitled to judicial relief from
administrative and judicial error. In their most recent repetition
of the “go to the Congress” suggestion, MMWEC/CMEEC rely
on FPC v. Texaco Inc., 417 U.S. 380 (1974), a case that is clearly
distinguishable. In the Texaco case, Congress had attempted
after the passage of the Natural Gas Act to exempt small produc-
ers from that Ac , but that exempting legislation had been vetoed
and Congress had failed to override the veto. Given that legisla-
tive history, this Court was understandably reluctant to “insert
itself into the debate.” 417 U.S. at 400-401. That is not at all the
case here. There is no reason why this Court should not apply the
principles underlying the NRA and subsequent legislation, along
with the plain meaning of the NRA, to obtain a sensible reading
of “public bodies.”

J

CONCLUSION

For the foregoing reasons, as well as those which have been
urged in the petition for certiorari, the petitioner’s request should
be granted.

Dated: February 3, 1987

Respectfully submitted,

RENEE SCHWARTZ

Counsel of Record
EZ1IO0 SCALDAFERRI
BOTEIN HAYS & SKLAR
200 Park Avenue
New York, New York 10166
(212) 867-5500

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2308%3A7. Public record. Not legal advice.