Connecticut Light and Power Co. v. Federal Energy Regulatory Commission
| Decision Date | 31 August 1978 |
| Docket Number | Docket No. ER78-517,No. 78-2312,R-4,78-2312 |
| Citation | 627 F.2d 467,201 U.S.App.D.C. 8 |
| Parties | The CONNECTICUT LIGHT AND POWER COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Connecticut Municipal Group, Intervenor. . Argued 14 Feb. 1980. Decided 30 May 1980. Robert P. Wax, Hartford, Conn., with whom James R. McIntosh, Hartford, Conn., was on the brief, for petitioner. Rhodell G. Fields, Atty., Federal Energy Regulatory Commission, Washington, D. C., with whom Howard E. Shapiro, Sol., Federal Energy Regulatory Commission, Washington, D. C., was on the brief, for respondent. Robert A. O'Neil, Washington, D. C., for intervenor. Charles F. Wheatley, Jr. and James Howard, Washington, D. C., were on the brief, for intervenor. Before BAZELON, Senior Circuit Judge, and WILKEY and WALD, Circuit Judges. Opinion for the Court filed by Circuit Judge WILKEY. Dissenting opinion filed by Circuit Judge WALD. WILKEY, Circuit Judge: Petitioner Connecticut Light and Power Company (CL&P) challenges an order of the Federal Energy Regulatory Commission (FERC) suspending for five months CL& P's proposed new rate schedule. FERC and intervenor Connecticut Municipal Group (Municipals) urge us to dismiss the appeal as moot in view of CL&P's settlement offer to refrain from seeking recovery of the suspended rates. We hold that this case is not moot, and set aside the suspension order because of the Commission's failure to disclose reasons for the length of the suspension period. I. FACTS On 31 July 1978 CL&P filed a proposed rate increase (the "rate") of $2,736,000 with the Commission, requesting an effective date of 1 September 1978 for the new rate. 1 On 21 August 1978 six of CL&P's wholesale customers, constituting the Connecticut Municipal Group, 2 filed a Protest and Petition to Intervene requesting suspension of the rate for the maximum five-month period permitted by the Federal Power Act. 3 In its Answer to Protest and Petition CL&P argued that any suspension should be limited to a one-day period in view of the company's weakened financial condition. 4 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Robert P. Wax, Hartford, Conn., with whom James R. McIntosh, Hartford, Conn., was on the brief, for petitioner.
Rhodell G. Fields, Atty., Federal Energy Regulatory Commission, Washington, D. C., with whom Howard E. Shapiro, Sol., Federal Energy Regulatory Commission, Washington, D. C., was on the brief, for respondent.
Charles F. Wheatley, Jr. and James Howard, Washington, D. C., were on the brief, for intervenor.
Before BAZELON, Senior Circuit Judge, and WILKEY and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
Petitioner Connecticut Light and Power Company (CL&P) challenges an order of the Federal Energy Regulatory Commission (FERC) suspending for five months CL& P's proposed new rate schedule. FERC and intervenor Connecticut Municipal Group (Municipals) urge us to dismiss the appeal as moot in view of CL&P's settlement offer to refrain from seeking recovery of the suspended rates. We hold that this case is not moot, and set aside the suspension order because of the Commission's failure to disclose reasons for the length of the suspension period.
On 31 July 1978 CL&P filed a proposed rate increase (the "R-4 rate") of $2,736,000 with the Commission, requesting an effective date of 1 September 1978 for the new rate. 1 On 21 August 1978 six of CL&P's wholesale customers, constituting the Connecticut Municipal Group, 2 filed a Protest and Petition to Intervene requesting suspension of the R-4 rate for the maximum five-month period permitted by the Federal Power Act. 3 In its Answer to Protest and Petition CL&P argued that any suspension should be limited to a one-day period in view of the company's weakened financial condition. 4 The Commission on 31 August 1978 issued an order which, inter alia, suspended the rate increase for five months. 5 In explanation, the Commission stated: 6
CL&P made an Application for Rehearing and Reconsideration on 29 September 1978. 7 It pointed out that the Commission did not discuss the arguments CL&P had made against the five-month suspension. It urged that the Commission reconsider its suspension-period decision, and "(a)t a minimum . . . explain the reasons for its ordered suspension period, particularly in light of the Company's precarious financial condition." 8 An Order Granting Rehearing for Further Consideration was issued 30 October 1978, 9 and on 22 November 1978 FERC issued its Order on Rehearing denying CL&P's Application for Rehearing, concluding that the Application raised "no new issues of fact or law" that might warrant rehearing with respect to the suspension period. 10 CL&P filed a petition for review of the 31 August and 22 November 1978 orders with this court on 26 December 1978, challenging a summary cost-of-service determination made by FERC as well as the rate suspension.
On 8 February 1980 CL&P filed a joint motion of the parties requesting the court's permission to withdraw the cost-of-service issue from consideration because of an offer of settlement filed with the Commission on 5 February 1980. 11 In the offer CL&P specifically preserved the suspension period issue for review by this court, but added: "Nevertheless, as part of this Offer of Settlement, CL&P agrees that it will not, at any time, seek to recover any additional revenues from any of its R-4 Rate customers as a result of the resolution of the appeal." 12
Arguing that the offer of settlement eliminated the only impact on CL&P from the suspension order, the Municipals on 13 February 1980 moved to dismiss the appeal as moot. 13 We issued an order on 3 March 1980 denying the motion to dismiss. 14
CL&P notes that the settlement allegedly mooting this petition will not become final until the offer of settlement has been reviewed, approved, and made effective by FERC, but for the purpose of this motion it "is willing to stipulate that all financial disputes related to the Commission's suspension order have been settled." 15 We will assume with the parties that the offer of settlement eliminates any direct financial aggrievement redressable by this court caused by the five-month suspension period.
Nevertheless, for two reasons we find that the settlement offer does not moot this petition. First, the settlement does not resolve all the issues presented in the petition. 16 CL&P was aggrieved not only by FERC's forbidding collection of the rate increase during the suspension, but also by the Commission's failure to reveal the reason for the length of the suspension period. Had FERC's rationale been disclosed, CL&P maintains that it conceivably could fashion future rate filings to avoid such lengthy suspensions and file meaningful rehearing petitions. Although the settlement appears to resolve the financial issue here, it does not deal in any way with CL&P's interest in discovering the Commission's reasoning behind the five-month suspension. This interest being "arguably within the zone of interests to be protected or regulated by" 17 section 205(e) of the Federal Power Act, 18 we conclude that CL&P still has a "legally cognizable interest in the outcome" of this appeal. 19
Second, as to economic issues we think this case fits within the "capable of repetition, yet evading review" doctrine of Southern Pacific Terminal Co. v. ICC 20 allowing review of disputes that have ended, but may arise again. This court has identified as key elements of this recurrent controversy test "(t)he likelihood of repetition of the controversy and the public interest in assuring appellate review." 21 Without question the lengthy suspension of CL&P's rate schedule is capable of repetition. The maximum statutory suspension period of five months makes it highly doubtful judicial review could be obtained before the period ended. It is theoretically possible that a company could recover revenues lost if a reviewing court subsequently invalidated the suspension order, but in practice it is not certain that such retroactive relief would be granted. 22 If we limited our consideration of suspension cases to those where economic relief was a sure possibility, such challenges might consistently evade review. In a strict sense, however, financial issues arising from challenged suspensions do not by their nature necessarily evade review, and it is particularly unlikely that such issues always will be settled by the parties prior to judicial review as they were here.
Even so, we think the public interest in resolving this recurring controversy precludes dismissal for mootness. Suspension orders have a significant effect on regulated companies and their customers. For instance, in this case CL&P claims it lost over $1 million in revenues during the five-month suspension period. 23 Even if the Commission subsequently determines the filed rate to be just and reasonable, the company will be permanently deprived of the revenues it could have collected had FERC suspended the increase one day and allowed the higher rate subject to a refund condition. We think there is a significant public interest in determining whether FERC must disclose reasons for disparate suspension periods having a substantial impact on regulated companies and their customers.
Because the settlement offer does not resolve all the issues before us and in view of the public interest in resolving this recurring controversy, we find that this case is not moot.
Section 205(e) of the Federal Power Act, authorizing suspension orders, provides:
(T)he Commission, upon filing with such schedules and delivering to the public utility affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect; . . . . 24
The question here is whether the order provided the requisite statement of reasons for "such suspension." We hold that it does not.
The purported reason for the suspension is that the rates "have not been shown to be just and reasonable and may be unjust, unreasonable, unduly discriminatory, preferential, or otherwise unlawful." Use of such boiler plate language appears to be the practice of the Commission in issuing suspension orders of varying lengths. 25 For instance, in Virginia Electric and Power Co., 26 issued one day before the present order, the Commission ruled
that the proposed rates have not been shown to be just and reasonable and may be unjust, unreasonable, unduly discriminatory, preferential or otherwise unlawful. The Commission shall accept the submittal for filing and suspend the proposed rates for one month from the proposed effective date after which the rates and services will go into effect . . ..
This language is substantially indistinguishable from that of the instant case, yet the suspension period is one month rather than five months. Of course, indistinguishable rationales for differing results constitute no rationale at all. Indicating, as the Commission does, that rates may be "unjust and unreasonable" may provide a reason for suspending the rates, but of itself does not provide a reason for different lengths of suspension periods. 27
...
To continue reading
Request your trial
-
Papago Tribal Utility Authority v. Federal Energy Regulatory Commission
...months and remanding to the Commission for a statement of reasons for the length of the suspension period. Connecticut Light & Power Co. v. FERC, 627 F.2d 467 (D.C.Cir. 1980). We note that that case is distinguishable from this one. The basis for the decision in Connecticut Light & Power wa......
-
National Ass'n of Broadcasters v. Copyright Royalty Tribunal
...the Tribunal for its rescission of the award to NPR was a conclusion rather than a statement of "reasons," see Connecticut Light & Power Co. v. FERC, 627 F.2d 467 (D.C.Cir.1980), and that the rescission is flawed by the Tribunal's failure to explain "why it ha(s) chosen to reject the reason......
-
State ex rel. Utilities Comm'n v. Va. Elec. & Power Co.
...or health clubs, was arbitrary and constituted impermissibly discriminatory legislation, and Connecticut Light & Power Co. v. Fed. Energy Regul. Comm'n , 627 F.2d 467, 473 (D.C. Cir. 1980), in which the United States Court of Appeals for the District of Columbia Circuit noted that "treating......
-
Mapco Intrastate Pipeline Co., Inc. v. State Corp. Com'n
...This statement of reason is brief but more specific than the reason found to be inadequate in Conn. Light & Power Co. v. Federal Energy Reg. Com'n, 627 F.2d 467 (D.C.Cir.1980), to which Mapco refers this " 'Our review of the filing and the pleadings indicates that the proposed rates have no......