Niagara Mohawk Power Corp. v. F.E.R.C., Nos. 95-1222

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: GINSBURG
• Citation: 117 F.3d 1485
• Parties: NIAGARA MOHAWK POWER CORPORATION, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Independent Power Producers of New York, Inc., et al., Intervenors.
• Decision Date: 11 July 1997
• Docket Number: 95-1302,95-1223,95-1298,Nos. 95-1222,95-1303 and 95-1309,95-1299

Page 1485

117 F.3d 1485 326 U.S.App.D.C. 135 NIAGARA MOHAWK POWER CORPORATION, Petitioner,
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent,
Independent Power Producers of New York, Inc., et al., Intervenors. Nos. 95-1222, 95-1223, 95-1298, 95-1299, 95-1302, 95-1303
and 95-1309. United States Court of Appeals,
District of Columbia Circuit. Argued Dec. 2, 1996.
Decided July 11, 1997.

[326 U.S.App.D.C. 136] On Petitions for Review of Orders of the Federal Energy Regulatory Commission.

Edward Berlin, Washington, DC, argued the cause for petitioners Niagara Mohawk Power Corporation and Long Island Lighting Company and supporting intervenor Edison Electric Institute, with whom J. Phillip Jordan, Robert V. Zener, Washington, DC, Richard A. Visconti, Hicksville, NY, Edward H. Comer, Washington, DC, and Paul J. Kaleta, Syracuse, NY, were on the briefs. Alice K. Hill, Washington, DC, entered an appearance.

Earle H. O'Donnell argued the cause for petitioners American Ref-Fuel Company of Southeastern CT et al., with whom Donna M. Attanasio, Jeffrey D. Watkiss, Washington, DC, Robert E. Wright, Carl R. Nasto, and Charles D. Gray were on the briefs. Jeffrey L. Futter, Hicksville, NY, entered an appearance.

Janet K. Jones, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. Jerome M. Feit, Solicitor, Washington, DC, at the time the brief was filed, and Edward S. Geldermann, Attorney, were on the brief. Timm L. Abendroth, Attorney, Washington, DC, entered an appearance.

Allan B. Taylor, Hartford, CT, argued the cause for intervenors Connecticut Light and Power Company et al., with whom Edward H. Comer was on the brief. Henri D. Bartholomot, David L. Schwartz, Jonathan D. Schneider, Washington, DC, Kenneth M. Jasinski, New York City, Howard H. Shafferman, Washington, DC, Michael W. Hall, Daniel F. Collins, Washington, DC, Joseph G. Pennington, Edward G. Kehoe, Erik J. Swenson, New York City, Robert R. Ambler, Jr., and Daniel M. Joseph entered appearances.

Douglas G. Robinson, John N. Estes, Washington, DC, Howard J. Read, Albany, NY, and David B. Johnson were on the brief for the QF Intervenors.

Before: SILBERMAN, GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Petitioners seek review of two declaratory orders of the Federal Energy Regulatory Commission interpreting the Public Utility Regulatory Policies Act (PURPA), 16 U.S.C. § 824a-3. Because the two orders do nothing more than set out the position that the Commission would take in an enforcement action before the district court, we are without jurisdiction to review them.

I. Background

In June 1987 the Southeastern Connecticut Regional Resources Recovery Authority, a political subdivision of the State of Connecticut chartered to dispose of municipal waste, petitioned the Connecticut Department of Utility Control (CDUC) for a declaration that § 16-243e of the Connecticut General Statutes required the Connecticut Light and Power Company (CL&P) to purchase electricity from a cogeneration facility operated by the Authority at the rate the utility charges a municipality for electricity. The CDUC ordered CL&P to pay the municipal rate, as the statute clearly commands.

CL&P appealed this decision to the Supreme Court of Connecticut, arguing that the PURPA preempts § 16-243e, at least insofar as the Connecticut statute would require a utility to pay more for electricity than its avoided cost. The Court held that the CDUC had misapplied § 16-243e and remanded the matter for the agency to recalculate the rate. Connecticut Light & Power Co. v. Department of Public Utility Control, 210 Conn. 349, 554 A.2d 1089 (1989). The Court did not address CL&P's claim of preemption.

Believing that the rate calculated by the CDUC on remand still exceeded its avoided cost, CL&P sued the Authority in federal district court seeking a declaratory judgment that the PURPA preempts § 16-243e. Applying the doctrine of primary jurisdiction,

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[326 U.S.App.D.C. 137] the district court stayed the proceeding for CL&P first to seek a declaratory ruling from the FERC. Connecticut Light & Power Co. v. South Eastern [sic] Connecticut Regional Resources Recovery Authority, 822 F.Supp. 888 (D.Conn.1993). CL&P duly petitioned the FERC for an answer to the question: "Does federal law preempt the application of § 16-243e of the Connecticut General Statutes to CL&P either in all circumstances or as § 16-243e has been applied in the context of the resources recovery facility of the Southeastern Regional Resources Recovery Authority located in Preston, Connecticut?" Connecticut Light & Power Co., 70 FERC p 61,012 (January 11,...