Amicus Curiae Brief — New Orleans Public Service, Inc. v. Council of City of New Orleans

Supreme Court. U.S.

FILED

MAR 2) )9xy

JOSEPH F. SPAIOL, JR.

CLE SK

No. 88-348

In the Supreme Court of the United States

October Term, 1988

NEW ORLEANS PUBLIC SERVICE, INC...

Petitioner

\

THE COUNCIL OF THE CITY OF NEW ORLEANS, et al

Respondents

On Wait OF CERTIORARI TO THE UNITED STATES

CouRT OF APPEALS FOR THE Fieti Cirnceri

AMICUS CURIAE BRIEF IN SUPPORT

OF RESPONDENTS ON BEHALF OF THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

LAWRENCE F. Barti*

Assistant Counsel

VERONICA A. SMITH

Deputy Chief Counsel

JOUN FL PoviLartis

Chief Counsel

Attorneys for Respondent,

Pennsylvania Public

Utility Commission

Commonwealth of Pennsylvania

Pennsylvania Public Utility Commission

PO. Box 3265

Harrisburg, PA 17120

(iid) 87-5000

March 31, 1989 *Counsel of Record

Question Presented

QUESTION PRESENTED

Whether a federal district court may refrain under the

abstention doctrines of Burford v. Sun Oil Co., 319 U.S.

315 (1943), or Younger v. Harris, 401 U.S. 37 (1971), from

exercising its jurisdiction to hear a federal claim when ad-

judication of that issue would intrude upon or otherwise

disrupt a state's lawful regulation of retail utility rates and

when the state regulatory scheme provides for adequate

relief for state and federal claims.

TABLE OF CONTENTS

PAGE

Question Poossnted .... i080 eeu nee i

, . Lt er ii

This of Citations... 2. oe even oe ee eee ii

, YY fe iv

Interest of Amicus Curiae................. 2

Sumenery & Acmpement .. 1 os cere eeeaneee 3

Argument: =

The District Court Correctly Abstained from

Exercising Its Jurisdiction to Hear a Federal

Claim Pursuant to the Abstention Doctrines

of Burford «. Sun Oil Co. 319 U.S. 315

(1943), and Younger v. Harris, 401 U.S. 37

(1971), in That Adjudication of That Claim

Would Intrude Upon Or_Otherwise Disrupt

Louisianas Lawful Regulation of Retail Utili-

ty Redes 2. eee ese ee ee eee 4

O 15

Costifiente of Gervine. .. 0. csc cece eee 16

TABLE OF CITATIONS

CASES:

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ..... passim

Colorado River Water Conservation District v.

United States, 424 U.S. 800 (1976)........ 6, 7

Dombrowski v. Pfister, 380 U.S. 479 (1965)... ... 14

**

Duquesne Light Co. v. Barasch, et al, —— U.S.

coy Bee Oe, GUO (IGED... ww ee

Equitable Gas Company v. Pennsylvania Pub. Util.

Comm., 106 Pa. Commonwealth Ct. 240, 526

EEE

Kentucky West Virginia Gas Co., et al. v. Pennsyl-

vania Pub. Util. Comm., et al., 620 F. Supp.

1458 (M.D. Pa. 1985) ................

Kentucky West Virginia Gas Co., et al. v. Pennsyl-

vania Pub. Util. Comm. et al., 791 F.2d 1111

Cw ete ees

Kentucky West Virginia Gas Co., et al. v. Pennsyl-

vania Pub. Util. Comm., et al., 650 F. Supp.

CN

Kentucky West Virginia Gas Co., et al. v. Pen: syl-

vania Pub. Util. Comm., et al., 837 F.2d 600

(3rd Cir. 1988), cert. denied, ___ U.S. __.,

I ow cig ee we ee ee

Kentucky West Virginia Gas Co. v. Pennsylvania

Pub. Util. Comm., 862 F.2d 69 (3rd Cir.

Middlesex County Ethics Committee v. Garden

~ State Bar Assoc., 457 U.S. 423 (1982) ...... 7,

Nantahala Power and Light Co. v. Thornburg, et

rr

New Orleans Public Service, Inc. v. The City of

New Orleans, et al., 798 F.2d 858 (5th Cir.

New Orleans Public Service, Inc. v. The City of

New Orleans, et al., 850 F.2d 1069 (5th Cir.

13

, 13

13

Railroad Commission v. Pullman Co., 312 U.S. 496

SEE iss. & 076 6.6 ACR ee hi se ees 5

TABLE OF AUTHORITIES

ADMINISTRATIVE DECISION:

Pennsylvania Pub. Util Comm. v. Pennsylvania

Gas and Water Co., 1988 Pa. PUC LEXIS 460

(September 30, 1988) ................ 12

CONSTITUTION:

U.S. Const.:

RT eas os ogg ota eae eres 8

rele oa a ee aes 8

ROE. cs 5-6 beens dln tse ot S

Art. I, §8, cl. 3 (Commerce Clause). ....... S

Art. VI, cl. 2 (Supremacy Clause)......... 8

RULE:

Supreme Court Rule 36.2...............4.5. 2

STATUTES:

Act 74, Act of May 31, 1984, No. 1984-74, 66 Pa.

C.S. §§1307, 1318 and 2107 ............ passim

rE oe eo er a ogee eo anes 2

ES os cb py -d 0 ae ee a ere 2

SS Ge IS os bo a nes os OO 2

iv

Interest of Amicus Curiae

No. 88-348

IN THE SUPREME COURT OF THE UNITED

STATES

October Term, 1988

NEW ORLEANS PUBLIC SERVICE INC.,

Petitioner

v

THE COUNCIL OF THE CITY OF NEW ORLEANS.

et al.

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

AMICUS CURIAE BRIEF IN SUPPORT

OF RESPONDENTS ON BEHALF OF THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

to

Interest of Amicus Curiae

INTEREST OF AMICUS CURIAE

The Pennsylvania Legislature has conferred broad

powers upon the Pennsylvania Public Utility Commission

(hereafter “Pennsylvania Commission” or “PaPUC’) to reg-

ulate public utilities in the Commonwealth. The PaPUC

has plenary authority and exclusive statewide jurisdiction

over the rates and services of Pennsylvania public utilities.

66 Pa C. S. §§$501, 1301, and 1501. As the PaPUC has

been charged by the Legislature with the responsibility of

regulating public utilities, it is of great import to the Penn-

sylvania Commission that it, and the Commonwealth

courts of review above it, be unfettered in the ability to

interpret questions of state law and policy and to exercise

their lawful jurisdiction over regulated public utilities. As

such the PaPUC supports Respondents, The Council of the

City of New Orleans, et al., and urges this Court to affirm

the decision below.

The Pennsylvania Commission has requested, and

been granted, the consent of Petitioner, New Orleans Pub-

lic Service, Inc., and Respondents, to its status as an

amicus curiae. Pursuant to Rule 36.2 of this Court, the

letters of consent are being filed with the Clerk this day

under separate cover.

Summary of Argument

SUMMARY OF ARGUMENT

While the abstention doctrines of Burford v. Sun Oil

Co., 319 U.S. 315 (1943), and Younger v. Harris, 401 U.S.

37 (1971), have developed as supposedly distinct prin-

ciples, they are nonetheless. quite closely related. Inter-

twined in both doctrines is an underlying animus against

interference whenever possible in state affairs. The Penn-

sylvania Commission submits that in the area of setting

retail utility rates, where the states have a long tradition of

administrative regulation coupled with judicial review—a

tradition which, for most states, pre-dates that of the feder-

al government in regulatory affairs—federal district courts

are correct in abstaining from exercising jurisdiction. To do

otherwise is to disturb the orderly regulation of utilities by

the states.

In order that its brief be as concise as possible in con-

formity with this Court's rules, the PaPUC will deal only

with the narrow aspect of law set forth above. Additionally

the Pennsylvania Commission accepts the Counterstate-

ment of of the case as set forth by Respondents, Council of

the City of New Orleans, et al. (hereafter “Council”).

Argument

ARGUMENT

The District Court Correctly Abstained From Exercising

Its Jurisdiction To Hear A Federal Claim Pursuant To

The Abstention Doctrines of Burford v. Sun Oil Co., 319

U.S. 315 (1943), And Younger v. Harris, 401 U.S. 37

(1971), In That Adjudication Of That Claim Would In-

trude Upon Or Otherwise Disrupt Louisiana's Lawful

Regulation Of Retail Utility Rates

The abstention doctrines of Burford v. Sun Oil Co.,

319 U.S. 315 (1943), and Younger v. Harris, 401 U.S. 37

(1971), have developed in the federal courts out of a

respect for the states’ judicial and administrative pro-

cesses. This is particularly true in the area of public utility

regulation. While federal regulation of wholesale energy

transactions or interstate telecommunications and state

regulation of retail energy rates and local telephone service

do occasionally overlap, these are distinct jurisdictions sep-

arated by a “bright line.”

This Court was explicit in its recognition of this differ-

entiation in Burford. Burford involved the regulation of

oil fields by the state of Texas. The state had an interest in

seeing that the fields were conserved and not quickly de-

pleted, an area of regulation which the federal government

had left to the states. Burford at 319. The federal court

had been requested to enjoin an order of the Texas Rail-

mr Nantahala Power & Light Co. v. Thornburg, et al., 476 U.S.

953 (1986).

Argument

road Commission on the basis of diversity of citizenship

and a due process claim. The Court's decision to abstain

was affirmed by the Circuit Court of Appeals and this

Court.

This Court noted that the Texas regulatory scheme

was of “vital interest to the general public,” and included a

system of “thorough judicial review.” Id. at 324-325. The

Court found that this was not a system into which the fed-

eral courts should interpose their authority lightly:

“Few public interests have a higher claim upon

the discretion of a federal chancellor than the avoid-

ance of needless friction with state policies, ... .

These cases reflect a doctrine of abstention appropri-

ate to our federal system whereby the federal courts,

‘exercising a wise discretion’, restrain their authority

because of ‘scrupulous regard for the rightful inde-

pendence of the state governments and for the

smooth working of the federal judiciary ... . This use

of equitable powers is a contribution of the courts in

furthering the harmonious relation between state and

federal authority without the need of rigorous con-

gressional restriction of those powers.”

Id. at 332-333, citing Railroad Commission v. Pullman Co..

312 U.S. 496, 500-501 (1941).

The Court held that abstention was appropriate when

there was a “unified method” of establishing policy and de-

ciding cases by the regulatory commission and state

courts, and the state system provided for “expeditious and

adequate” judicial review. Burford at 333-334. The Court

noted that federal claims could still reach it through the

state appellate process. It warned that “[c]onflicts in the

interpretation of state law, dangerous to the success of sta‘e

Argument

policies, are almost certain to result from the intervention

of the lower federal courts.” Id. at 334.

The actual presence of a question of state law is not

critical to abstention as the Court explained many years

later in discussing Burford:

In some cases, however, the state question itself

need not be determinative of state policy. It is enough

that exercise of federal review of the question in a case

and in similar cases would be disruptive of state ef-

forts to establish a coherent policy with respect to a

matter of substantial public concern.

Colorado River Water Conservation District v. United

States, 424 U.S. 800, 815 (1976).

The Court expressed this same conviction in deciding —

Younger v. Harris, 401 U.S. 37 (1971), where it reversed a

district court order enjoining a state prosecution. The

Court noted that the Framers of the Constitution in

developing the concept of “Our Federalism,” envisioned a

government where the interests of both the central govern-

ment and the states are recognized. Younger at 44. While

rejecting blind deference to states’ rights, the Framers cre-

ated a system where the central government, “anxious

though it may be to vindicate and protect federal rights

and federal interests, always endeavors to do so in ways

that will not unduly interfere with the legitimate activities

of the States.” Id. This two-way respect has become known

as the tenet of comity.

Abstention under the Younger doctrine is appropriate

where: (1) there are ongoing state judicial proceedings, (2)

the proceedings involve an important state interest, and

(3) there is an adequate opportunity to raise constitutional

Argument

challenges in the state proceedings. Middlesex County

Ethics Committee v. Garden State Bar Assoc., 457 U.S.

423, 432 (1982). The Younger doctrine is not limited to

criminal proceedings but extends to any proceeding “when

important state interests are involved.” Id. Younger, and

the cases that followed it, express a definite proclivity

against Federal Court intervention in ongoing state judicial

proceedings except in extraordinary circumstances. Id.

Petitioner New Orleans Public Service, Inc. (hereafter

“NOPSI), has urged the Court to reverse because, among

other things, no state law is at issue and its complaint rests

solely on federal grounds. Petitioners Brief at 13. The

Pennsylvania Commission submits that, as this Court said

in Colorado Water Dist., the intrusion into a state regula-

tory scheme is enough to cause disruption in the state's ad-

ministration of utility rates. The PaPUC further submits,

based upon its own experience, that this can trigger unin-

tended results.

On May 31, 1984, the Governor of Pennsylvania ap-

proved comprehensive legislation regarding the recovery of

gas costs for natural gas distributors with gross revenues in

excess of $40 million; Act 1984-74 (“Act 74”), codified at 66

Pa. C. S. §§1307, 1317, 1318 and 2107. Act 74 mandates

that each utility subject to its provisions shall pursue a

“least cost fuel procurement policy.” 66 Pa. C. S. §1318(a)

(1)-(4). Like many states, Pennsylvania allows natural gas

and electric utilities to recover the costs of fuel on a timely

basis without filing a complete rate case each time an ad-

justment is necessary. Instead, each utility's fuel purchases

are reviewed in an annual hearing.

Equitable Gas Company (hereafter “Equitable’) is a

natural gas distributor subject to the jurisdiction of the

Argument

PaPUC. It is a division of Equitable Resources, Inc., which

also includes Kentucky West Virginia Gas Company, an af-

filiated interstate pipeline supplier to Equitable prior to

1988.

Following its first hearing under Act 74 the Pennsyl-

vania Commission disallowed a portion of Equitable’s fuel

expenses for the period of July 1983 through June 1984

because it had purchased gas from its affiliate, Kentucky

West, when less expensive gas was available from other

sources in violation of Section 1318(b). The case was sub-

sequently appealed to the Pennsylvania Commonwealth

Court which affirmed the Pennsylvania Commission's deci-

sion. Equitable Gas Company v. Pennsylvania Pub. Util.

Comm., 106 Pa. Commonwealth Ct. 240, 526 A.2d 823

(1987).

At the same time, Equitable also filed a complaint

with the U.S. District Court for the Middle District of

Pennsylvania. Kentucky West Virginia Gas Co., et al. v.

Pennsylvania Pub. Util. Comm., et al., 620 F. Supp. 1458

(M.D. Pa. 1985). Equitable sought a preliminary and per-

manent injunction and declaratory judgment against the

PaPUC and its individual members claiming that the

commissions order and certain parts of Act 74 violated the

commerce clause, supremacy clause and the first, fifth and

fourteenth amendments to the U.S. Constitution.’ The

PaPUC and the (Pennsylvania) Office of the Consumer Ad-

vocate, an intervening defendant, argued, among other

things, that the Court should abstain from exercising its

jurisdiction pursuant to Burford.

* U.S. Const. art. I, §8, cl. 3; U.S. Const. art. VI, cl 2; and U.S.

Const. amend. L V, and XIV, §1.

Argument

The Court agreed, finding that its intervention would

be disruptive of the states efforts to regulate utilities. Id.

at 1461. The Court concluded, sua sponte, that the three

criteria for abstention under Younger were also present.

Id. at 1462. The decision to abstain was appealed to the

Third Circuit which reversed and remanded the case to

the District Court for trial. Kentucky West Virginia Gas

Co. et al. v. Pennsylvania Pub. Util. Comm. et al., 791

F.2d 1111 (3rd Cir. 1986).

The Third Circuit held that the Burford abstention is

in doubt where substantial questions of federal preemption

are involved even though the Court was aware that its de-

cision would disrupt the regulatory scheme in Pennsylva-

nia. Id. at 1115-1116. Younger abstention was also inap-

propriate. The Court stated that the mere existence of state

judicial proceedings is not enough to justify abstention

when state interests are foreclosed or preempted by the

Constitution. Id. at 1116-1117.

Following a trial on the merits the District Court

found in favor of the Pennsylvania Commission and the

constitutionality of Act 74. Kentucky West Virginia Gas

Co., et al. v. Pennsylvania Pub. Util. Comm. et al., 650 F.

Supp. 659 (M.D. Pa. 1986). Its findings were ultimately

affirmed by the Third Circuit. Kentucky West Virginia

Gas Co., et al. v. Pennsylvania Pub. Util. Comm. et al.,

837 F.2d 600 (3rd Cir. 1988) cert. denied, U.S.

109 S.Ct. 365 (1988).

Following the Pennsylvania Commission's decision in

its 1986 Act 74 proceeding, Equitable appealed to the

state courts while filing an action in federal court again

raising supremacy clause and commerce clause claims.

Kentucky West Virginia Gas Co. v. Pennsylvania Pub. Util.

10

Argument

Comm., 862 F.2d 69 (3rd Cir. 1988). In an unreported de-

cision, the District Court for the Middle District of Penn-

sylvania reversed the PaPUC in part. The Third Circuit

reversed the District Court and held again that Act 74 vio-

lated neither the commerce nor supremacy clauses of the

Constitution. /d. at 72-74.

Equitable took no appeal of the PaPUCss order follow-

ing its 1987 annual review of fuel purchases, nor did it file

a complaint in federal court.

However, following the PaPUC’ss order in Equitable's

1988 Act 74 proceeding, Equitable appealed the commis-

sion’s decision to the Pennsylvania Commonwealth Court.

That appeal is pending at Docket No. 2324 C.D. 1988. The

company has again filed a complaint in Federal District

Court alleging preemption and other constitutional viola-

tions. U.S. District Court for the Middle District of Penn-

sylvania Case No. CV 89-0124.

The Pennsylvania Commission understands the feder-

al courts’ desire to determine important questions of feder-

al law. However, when the district courts intervene in such

matters it has a discouraging effect upon the state regulato-

ry mechanism. In addition to having to continually defend

actions in federal court, the pending federal actions keep

the state regulators, as well as the regulated industry, un-

sure of the challenged state law. This results in regulation

which must remain uncertain pending litigation for long

periods of time.

For example, after the District Court reversed in part

the PaPUC’s 1986 Act 74 order regarding Equitable's gas

purchases, it became necessary for the Commission to al-

ter procedures for all utilities subject to Act 74.

1]

Argument

By Secretarial Letter dated April 11, 1988, the

Commission notified the Company that the Commis-

sion had instituted an investigation to determine the

lawfulness of the rates proposed in the supplements

pursuant to the requirements of Section 1307(f)(2) of

the Public Utility Code. The investigation was opened

at R-880958 and assigned to Administrative Law

Judge Herbert Smolen. The Commission also directed

PG&W, as follows:

“We wish to call to the attention of all parties and

the Office of Administrative Law Judge, an order is-

sued October 26, 1987, in the case of Kentucky West

Virginia Gas Company, et al. v. Pennsylvania Public

Utility Commission, Civil Action No. 86-1380, United

States District Court for the Middle District of Penn-

sylvania, Slip Opinion, October 16, 1987. This order

made final a previous order by the Court dated July

13, 1987, which inter alia, found the Commission

practice of employing projections of wholesale gas

rates regulated by the Federal Energy Regulatory

Commission, in the setting of prospective gas cost

rates to be violative of the Supremacy Clause of the

U.S. Constitution. This order is currently on appeal to

the U.S. Court of Appeals for the Third Circuit. Reso-

lution of this issue may not occur prior to the close of

the record in this proceeding. Therefore, Pennsylva-

nia Gas & Water Company is directed to modify, if

necessary, its projections of future gas costs so as to

adhere to rates as stated in currently effective Federal

Energy Regulatory Commission tariffs. The parties

are reminded that updates relating to changes in pur-

chased fuel expense must be received no later than

thirty (30) days prior to the close cf the record.’

12 ;

Argument

Pennsylrania Pub. Util. Comm. v. Pennsylvania Gas and

Water Co., 1988 Pa. PUC LEXIS 460, 40-41 (September

30, 1988) (citation omitted). When the Third Circuit re-

stored the Pennsylvania Commissions order, procedures

had to be adjusted again.

It cannot be that the state courts are unable to consid-

er federal questions. Recently this Court affirmed an opin-

ion of the Pennsylvania Supreme Court which found lawful

a state statute which excluded for ratemaking purposes ex-

penditures by electric utilities for generation facilities

which were planned but never built even though the ex-

penditures were reasonable when made. Duquesne Light

Co. v. Barasch, et al., U.S. , 109 S.Ct. 609 (1989).

The Pennsylvania Supreme Court, in reversing a PaPUC

decision, held that the law did not take the utilities prop-

erty in violation of the fifth amendment to the Constitu-

tion. Id., 109 S.Ct. at 614.

The statute upon which that decision turned was test-

ed in the state administrative and judicial system. Howev-

er, Act 74, which involves the recovery of fuel acquisition

costs, has been and remains the subject of review in the

federal court system. The federal courts, whether through

intention or misadventure, have become a part of the state

regulatory system in Pennsylvania. This runs contra

to Burford, Younger, and their progeny wherein the Court

has evidenced a respect for state judicial and adminis-

trative systems. Such respect would allow a state agency

or court the opportunity to reconcile its action or underly-

ing statute with federal law before a federal court in-

tervenes.

As the Fifth Circuit noted in New Orleans Public Ser-

vice, Inc. v. the City of New Orleans, et al., 798 F.2d 858

(5th Cir. 1986), the District Court correctly concluded that

13

Argument

to exercise its jurisdiction would be to intrude upon a com-

plex state regulatory system. Id. at 861-862. The Court

was aware that the Louisiana judicial system would be fully

able to adjudicate any complaint NOPSI might have with

an order of the City Council. The Court concluded that

Burford abstention was appropriate. Id.

The Court also found that conditions to justify absten-

tion under Younger were also present. Id. at 863-864. Ap-

plying the three criteria explained in Middlesex County,

the Court stated that the administrative proceeding before

the Council was an ongoing judicial proceeding in that it

was within the appellate jurisdiction of the Louisiana

courts, the interest of the Council in setting retail electric

rates was “clearly important” and a matter reserved to the

states, and that NOPSI would have a full and fair opportu-

nity to litigate any federal claims through the appellate

process. Id. Additionally, there was no evidence of “bad

faith, harassment or other exceptional circumstances.” Id.

When this matter returned to the Fifth Circuit (for

the third time), the Court noted that there had been no

important change in circumstance since its 1986 decision.

New Orleans Public Service, Inc. v. The City of New

Orleans, et al., 850 F.2d 1069 (5th Cir. 1988). The main

difference was that by 1988 Council had completed its in-

vestigation into NOPSIs Grand Gulf I involvement. Id. at

1079. NOPSI still had the opportunity for judicial review

in the state courts before it, and it has filed such an ap-

peal. Therefore, the Fifth Circuit correctly affirmed the

District Court's decision to abstain upon the same grounds

as it had in its 1986 opinion.

NOPSI argues that federal preemption precludes

even the consideration of this matter in the state courts.

14

Argument

Petitioners Brief at 2, 13. In arguing against abstention

under the Younger doctrine, NOPSI states that abstention

is inappropriate “when the invalidity of the state proceed-

ing and order is clear on its face.” Id. at 35-38. This is

nothing more than a request to rule on the merits of

NOPSIs preemption claim and is out of place in an appeal

on abstention.

This Court has already rejected this reasoning in

Younger where it explained an earlier decision? which

seemed to condone such action:

The District Court, however, thought that the

Dombrowski decision substantially broadened the

availability of injunctions against state criminal prose-

cutions and that under that decision the federal courts

may give equitable relief, without regard to any show-

ing of bad faith or harassment, whenever a state

statute is found “on its face” to be vague or overly

broad, in violation of the First Amendment. We rec-

ognize that there are some statements in the

Dombrowski opinion that would seem to support this

argument. But, as we have already seen, such state-

ments were unnecessary to the decision of that case,

because the Court found that the plaintiffs had alleged

a basis for equitable relief under the long-established

standards.

Younger at 50.

Granting of NOPSI’s appeal on these grounds will

open the door to federal court challenges to state regulato-

ry laws and orders. Such “on its face” review will result in

placing at least some of the power to abstain, or more like-

ly the power to refrain from such action, in the hands of

the person who drafts the complaint.

* Dombrowski v. Pfister, 380 U.S. 479 (1965).

15

Conclusion

CONCLUSION

However this Court rules, the Pennsylvania Commis-

sion wants it to be aware that its decision will be felt in

administrative agencies and courts throughout the country.

When the proper safeguards and remedies of judicial re-

view are present, the state courts should be allowed to re-

view the impact of state laws or regulatory schemes may

have upon federal claims. The Court is urged to affirm.

Respectfully submitted,

LAWRENCE F. BARTH*

Assistant Counsel

VERONICA A. SMITH

Deputy Chief Counsel

JOHN F. POvILAITIS

Chief Counsel

Attorneys for Amicus Curiae,

Pennsylvania Public

Utility Commission

Commonwealth of Pennsylvania

Pennsylvania Public Utility Commission

P.O. Box 3265

Harrisburg, PA 17120

(717) 787-5000

March 31, 1989

*Counsel of Record

16

Certificate of Service

CERTIFICATE OF SERVICE

This will certify that completed copies of the Brief of

Amicus Curiae Pennsylvania Public Utility Commission in

Support of Respondents were forwarded to counsel for

each party this day, March 31, 1989, by First Class Mail.

Herschel L. Abbott, Jr.

David G. Radlauer

Edward H. Bergin

R. Lewis McHenry

Jones, Walker, Waechter,

Poitevent, Carrere & Denegre

201 St. Charles Avenue

New Orleans, LA 70170

Rex E. Lee

David W. Carpenter

James A. Huttenhower

Mark A. Kerber

Sidley & Austin

1722 Eye St., N.W.

Washington, DC 20006

Thomas O. Lind

Vice President-Regulatory Counsel

New Orleans Public Service Inc.

317 Baronne Street

New Orleans, LA 70112

Okla Jones, II

City Attorney

17

Certificate of Service

Bruce E. Naccari

Asst. City Attorney

Beverly Zervigon

Administrator

Council Utility Regulatory Office

1300 Perdido Street

New Orleans, Louisiana 70112

Clinton A. Vince

Bernhardt K. Wruble

Nancy A. Wodka

Verner, Liipfert, Bernhard, McPherson

and Hand, Chartered

901 15th Street, N.W.

Suite 700

Washington, DC 20005-2301

Walter J. Wilkerson

Suite 2720, Poydras Center

650 Poydras Street

New Orleans, Louisiana 70130

Kenneth M. Carter

Sidney H. Cates

Carter & Cates

Suite 1850, Energy Center

New Orleans, Louisiana 70163

William C. Bryson

Acting Solicitor General

David L. Shapiro

Deputy Solicitor Ceneral

18

Certificate of Service

Richard J. Lazarus

Assistant to the Solicitor General

Department of Justice

Constitution Avenue between

9th & 10th Streets

Room 5614

Washington, DC 20530

Catherine C. Cook

General Counsel

Jerome M. Feit

Solicitor

Robert H. Solomon

Attorney

Federal Energy Regulatory Commission

825 N. Capitol Street, N.E.

Washington, DC 20426

Benna Solomon, Esq.

Academy for State and Local Government

Suite 349

444 North Capitol St., N.W.

Washington, DC 20001

Charles D. Gray

Assistant General Counsel

National Association of Regulatory

Utility Commissioners

1102 ICC Building

P.O. Box 684

Washington, DC 20044-0684