Industrial Cogenerators v. F.E.R.C.

• Decision Date: 07 March 1995
• Docket Number: No. 93-1372,93-1372
• Citation: 47 F.3d 1231
• Parties: INDUSTRIAL COGENERATORS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Florida Power Corporation; Florida Public Service Commission, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1231

47 F.3d 1231

310 U.S.App.D.C. 357

INDUSTRIAL COGENERATORS, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Florida Power Corporation; Florida Public Service Commission, Intervenors.

No. 93-1372.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 20, 1994.

Decided March 7, 1995.

Appeal from an Order of the Federal Energy Regulatory Commission.

Harvey L. Reiter argued the cause for petitioner. With him on the briefs was Kathleen L. Mazure.

Edward S. Geldermann, Attorney, F.E.R.C., argued the cause for respondent. With him on the brief was Jerome M. Feit, Sol., F.E.R.C.

On the brief for intervenors were Robert D. Vandiver and Cynthia B. Miller. Albert R. Simonds, Jr. entered an appearance.

Before EDWARDS, Chief Judge, GINSBURG and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Industrial Cogenerators (IC), an ad hoc group of industrial firms engaged in the cogeneration of electric power in the State of Florida, petitions for review of an order of the Federal Energy Regulatory Commission vacating an earlier declaratory order in which the agency had interpreted certain of its own regulations implementing Sec. 210(a) of the Public Utility Regulatory Policies Act of 1978 (PURPA). 16 U.S.C. Sec. 824a-3(a). The order that IC asks us to review is inextricably tied to an enforcement scheme over which the Congress has vested exclusive jurisdiction in the federal district courts. Therefore, we lack jurisdiction to review the order, and we dismiss the petition.

I. BACKGROUND

Section 210 of the PURPA was enacted, in part, to address discrimination by electric utilities in the availability and price of power that they sell to and buy from cogeneration facilities for resale. See F.E.R.C. v. Mississippi, 456 U.S. 742, 750-51, 102 S.Ct. 2126, 2132-33, 72 L.Ed.2d 532 (1982). The FERC implements Sec. 210 by promulgating rules designed to encourage cogeneration and small power production, 16 U.S.C. Sec. 824a-3(a)-(c); those rules are in turn implemented by state regulatory authorities and by "each nonregulated electric utility." 16 U.S.C. Sec. 824a-3(f). If an entity of either type fails to implement the FERC rules, then the Commission may, upon its own motion or upon petition, bring an enforcement action in district court to ensure compliance with the Act; if the Commission fails to act upon a petition for enforcement, then the petitioner may itself bring such an action. 16 U.S.C. Sec. 824a-3(h)(2)(B). The PURPA does not provide any other means by which the FERC or a petitioner can force a state regulatory authority or a nonregulated utility to comply with Sec. 210 of the Act.

In February 1987 the Florida Public Service Commission (FPSC) adopted Order 17159, Generic Investigation of Standby Rates for Electric Utilities, 87 F.P.S.C. 2:43, purportedly implementing the FERC's regulation of the rates an electric utility may charge a cogeneration facility for power, 18 C.F.R. Sec. 292.305. Industrial Cogenerators challenged Order No. 17159 in two different fora. First, it filed a notice of appeal with the Supreme Court of Florida, arguing that Order No. 17159 is inconsistent with Florida law. Second, IC petitioned the Commission to bring an enforcement action against the FPSC, or in the alternative to grant it declaratory relief, on the grounds that Order No. 17159 is inconsistent with both the PURPA and the FERC's rate regulation, 18 C.F.R. Sec. 292.305, because it unfairly burdens cogeneration facilities and impermissibly restricts the circumstances under which electric utilities must provide service to them. The FPSC intervened in the FERC proceeding.

In June 1988 the FERC declined to initiate an enforcement action against the FPSC, but it did issue a "Declaratory Order" in which it opined that any enforcement action should proceed "in the appropriate judicial forum." Observing that IC's complaint raised issues that were "primarily factual," the Commission suggested that the Supreme Court of Florida would be a better forum for factual development. Industrial Cogenerators v. Florida Public Serv. Comm'n, 43 F.E.R.C. p 61,545 (1988). In order to "supply the relevant state or federal court with guidance as to the legal requirements of [its] regulations, and thus to aid the court's review of the Florida PSC's action," the FERC interpreted its own regulations. The Commission also suggested that, depending upon the resolution of particular factual issues on the record before the FPSC, Order No. 17159 may not have complied with those regulations. Id. at 62,346.

IC and the FPSC both filed petitions for rehearing: IC disputed the FERC's conclusion that the Supreme Court of Florida was the appropriate forum for fact-finding; the FPSC wanted the FERC to reconsider its interpretations of its own regulations. While the petitions for reconsideration were pending, the Supreme Court of Florida affirmed Order No. 17159, holding that it was not inconsistent with Florida law. C.F. Industries, Inc. v. Nichols, 536 So.2d 234 (Fla.1988). And there the matter stood for nearly three years. Then the FPSC adopted Order No. 24924, 91 F.P.S.C. 8:207 (August 19, 1991), in which it stated "its intent to address the criteria under 18 C.F.R. Sec. 292.305(b)(2) ... in each utility's next rate case," and revised its rules to require that an electric utility's provision of certain services to cogeneration facilities "shall be consistent with the [FERC] rule, 18 C.F.R. Sec. 292.305."

In November 1992 the FERC, referring to the intervening decisions of the Supreme Court of Florida affirming Order 17159 and of the FPSC adopting Order No. 24924, vacated the Declaratory Order on the ground that the underlying dispute had become moot, Industrial Cogenerators v. Florida Public Serv. Comm'n, 61 F.E.R.C. p 61,202 (1992). In this "Vacating Order" the Commission noted that it had erred in the Declaratory Order insofar as it had suggested that the Supreme Court of Florida is the preferable fact-finding body; the FERC had intended to defer to the FPSC as the more appropriate forum for development of the record. Id. at 61,753. The FERC having thus denied the petition for rehearing, 63 F.E.R.C. p 61,168 (1993), IC petitioned this court for review of the Vacating Order.

II. ANALSYIS

The petitioner argues first that the state law decision of the Supreme Court of Florida in C.F. Industries did nothing to moot its challenge to the validity of Order No. 17159 under federal law, and second that the FPSC's Order No. 24924 did not bring that agency's regulatory scheme into compliance with the PURPA and the FERC's implementing regulations. IC therefore asks this court to find that the FERC abused its discretion when it vacated the Declaratory Order as moot.

In response, the FERC challenges our jurisdiction over IC's petition for review. For the reasons set out in Part II.B below, we agree that we do not have such jurisdiction.

A. The Jurisdictional Arguments

The petitioner contends that this court has jurisdiction to review the Vacating Order under Sec. 313(b) of the Federal Power Act. As it appears in the U.S.Code, that section provides:

Any party to a proceeding under this chapter aggrieved by an order issued by [the FERC] in such proceeding may obtain a review of such order in ... the United States Court of Appeals for the District of Columbia....

16 U.S.C. Sec. 825l (b) (emphasis added).

The FERC, however, points out that in the Statutes at Large the word "Act" stands in place of the word "chapter," 49 Stat. 860 (1935), and that as between the statute as enacted and as codified, the former is controlling. See 1 U.S.C. Secs. 112, 204(a); Five Flags Pipe Line Co. v. Department of Transp., 854 F.2d 1438, 1440-41 (D.C.Cir.1988). Further, according to the FERC, the "Act" referenced in Sec. 313(b) as enacted is the FPA, not the PURPA; the Vacating Order (like the Declaratory Order) was issued under Sec. 210 of the PURPA; and therefore Sec. 313(b) does not give this court jurisdiction to review the order that IC is challenging. Instead, the FERC contends, judicial review of any order issued under Sec. 210 may be had only by bringing an enforcement action pursuant to Sec. 210(h).

Alternatively, the FERC argues that even if Sec. 313(b) of the FPA does apply to orders issued under the PURPA, we do not have jurisdiction of this case, both because the petitioner is not a party "aggrieved" by the Vacating Order, see North Carolina Utilities Commission v. F.E.R.C., 653 F.2d 655, 662 (D.C.Cir.1981) ("To show aggrievement, a plaintiff must allege facts sufficient to prove the existence of a concrete, perceptible harm of a real, non-speculative nature"), and because the Order is not "final" for the purpose of judicial review, see Papago Tribal Utility Authority v. F.E.R.C., 628 F.2d 235, 239-40 (D.C.Cir.1980) (only FERC order that "imposes an obligation, denies a right, or fixes some legal relationship as a consummation of the administrative process" is "final" for purpose of judicial review). Finally, the FERC portrays the Vacating Order as a discretionary decision not to take enforcement action, hence unreviewable per the teaching of Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).

We find it unnecessary to reach any of these specific jurisdictional arguments. Regardless of whether the Congress in Sec. 313(b) authorized us to review any orders issued under Sec. 210 of the PURPA, it could not have intended that such review be available where it would disrupt the enforcement scheme carefully elaborated in Sec. 210. For us to review the Vacating Order (and indirectly the Declaratory Order to which it relates), however, would be fundamentally inconsistent with--would indeed preempt--that enforcement scheme.

B. The Enforcement Scheme

Section 210 creates an enforcement scheme by which either the FERC or a private party may see to it that a state...