City of New Orleans v. F.E.R.C.
| Citation | 875 F.2d 903 |
| Decision Date | 26 May 1989 |
| Docket Number | 88-1068,88-1124 and 88-1198,Nos. 88-1067,s. 88-1067 |
| Parties | CITY OF NEW ORLEANS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Jefferson Parish, Louisiana, Occidental Chemical Corporation, System Energy Resources, Inc., Louisiana Public Service Commission, Arkansas Public Service Commission, et al., Mississippi Public Service Commission, Intervenors. STATE OF MISSISSIPPI, ex rel ATTORNEY GENERAL, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. MISSISSIPPI PUBLIC SERVICE COMMISSION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ARKANSAS PUBLIC SERVICE COMMISSION, et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Glen L. Ortman, with whom Clinton A. Vince and Paul E. Nordstrom, Washington, D.C., for City of New Orleans, and Robert Franklin Spencer, New Orleans, La., for State of Miss., were on the joint brief, for City of New Orleans, State of Miss. and Mississippi Public Service Com'n. Sherry A. Quirk, Washington, D.C., also entered an appearance for City of New Orleans. Richard W. Wise and Dennis Miller, Jackson, Miss., entered appearances for Mississippi Public Service Com'n.
Steve Clark, Atty. Gen., State of Ark., and Mary B. Stallcup, Deputy Atty. Gen., Little Rock, Ark., for State of Arkansas, A. Raymond Randolph and Daniel I. Prywes, Washington, D.C., for Reynolds Metals Co., et al., Wallace L. Duncan, James D. Pembroke and Janice L. Lower, Washington, D.C., for Arkansas Public Service Com'n, and William Massey, for Arkansas-Missouri Congressional Delegations, were on the brief for Arkansas Public Service Com'n and Jefferson Parish, La., et al. Thomas Byrne, Jefferson City, Mo., entered an appearance, for Missouri Public Service Com'n.
Samuel Soopper, Atty., F.E.R.C., with whom Catherine C. Cook, Gen. Counsel, and Jerome M. Feit, Sol., F.E.R.C., were on the brief, for F.E.R.C. John Estes and Hanford O'Hara, Attys., F.E.R.C., Washington, D.C., also entered appearances for F.E.R.C.
Michael R. Fonham and Theodore L. Jones, Baton Rouge, La., for Louisiana Public Service Com'n and the State of La., Earle H. O'Donnell and Robert R. Morrow, for Occidental Chemical Corp. and Georgia Gulf Corp., and Richard G. Morgan, Washington D.C., for Jefferson Parish, Louisiana, were on the joint brief for Jefferson Parish, La., et al.
Richard M. Merriman, Robert S. Waters and James K. Mitchell, Washington, D.C., were on the brief, for Systems Energy Resources, Inc.
Dennis Miller and Richard W. Wise, Jackson, Miss., also entered appearances, for Mississippi Public Service Com'n.
Clinton A. Vince, Glen L. Ortman, Paul E. Nordstrom and Sherry A. Quirk, Washington, D.C., also entered appearances, for City of New Orleans.
Before EDWARDS, SILBERMAN and BUCKLEY, Circuit Judges.
The petitions for review in this case follow a remand from this court to the Federal Energy Regulatory Commission ("FERC" or "the Commission") for further explanation of the Commission's 1985 decision allocating the cost of generating electricity among the operating companies of the Middle South Utilities System. In particular, the case was remanded to the Commission "for reconsideration of the decision to equalize the capacity costs of all nuclear plants, and for an explanation of the criteria used to determine what constitutes 'undue discrimination' and of why the Commission's ultimate decision is not unduly discriminatory." Mississippi Indus. v. FERC, 822 F.2d 1104, 1105 (D.C.Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 501, 98 L.Ed.2d 499 (1987). To the extent that the present petitions for review seek to raise jurisdictional issues, we summarily reject them. This court already has upheld the Commission's exercise of jurisdiction in this case, and that issue is not properly the subject of further litigation. See Mississippi Indus. v. FERC, 808 F.2d 1525 (D.C.Cir.), vacated in part on other grounds, 822 F.2d 1104 (D.C.Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 501, 98 L.Ed.2d 499 (1987).
On the record now properly before this court, we find the following: first, the Commission has fully and adequately reconsidered, on remand, its decision to equalize the capacity costs of all nuclear plants; second, FERC has adequately explained its criteria for determining what constitutes "undue discrimination;" and, third, the Commission's judgment in this case is not unduly discriminatory.
In its opinion, the Commission explained that
[p]rinciples of fairness in ratemaking support...
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