United States Ninth Circuit

In an appeal dealing with wholesale energy contracts for future energy supplies, known as "forward" contracts, entered into by power companies in certain Western states during the energy crisis, a petition for review of an FERC decision finding that the contracts at issue should not be modified is granted and the matter remanded where the FERC erred both in its procedural reliance on Mobile-Sierra and in the substantive standard it used in determining that the contracts at issue did not affect the public interest. The court sets forth a three-prerequisite test for establishing the Mobile-Sierra rebuttable presumption "that private parties to a wholesale electric power contract have negotiated a 'just and reasonable' contract over a designated period of time, lawful under the [Federal Power Act] throughout that period."

Appellate Information

• Argued 12/08/2004
• Decided 12/19/2006
• Published 12/19/2006

Judges

• BERZON, Circuit Judge:, Before: BROWNING, PREGERSON, and BERZON, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Stephen M. Ryan, Manatt, Phelps & Phillips LLP, Washington, DC, argued the case and was on the briefs of petitioners Nevada Power Company and Sierra Pacific Power Company.  Roger A. Berliner, Manatt, Phelps & Phillips LLP, Washington, DC, and C. Stanley Hunterton, Hunterton & Associates, Las Vegas, NV, were also on the briefs as attorneys for the same parties., Randolph Lee Elliot, Miller, Balis & O'Neil PC, Washington, DC, argued the case and was on the briefs of petitioner Southern California Water Company.  Christopher M. Lyons was also on the briefs as attorney for the same party., Eric L. Christensen, Assistant General Counsel, argued the case and was on the briefs of petitioner Public Utility District No. 1 of Snohomish County, WA. Howard M. Goodfriend, Edwards, Sieh, Smith & Goodfriend PS, Seattle, WA, and Michael J. Gianunzio, General Counsel, were also on the briefs as attorneys for the same party., Timothy Hay, Chief Deputy Attorney General and Consumer Advocate, John E. McCaffrey, Stinson, Morrison, & Hecker LLP, Washington, DC, and Eric Witkoski, Senior Deputy Attorney General, were on the briefs of petitioner Office of the Nevada Attorney General, Bureau of Consumer Protection., Richard L. Hinckley, General Counsel, was on the brief of intervenor Public Utilities Commission of Nevada., William J. Kayatta, Jr., Jared S. des Rosiers, Louise K. Thomas, Deborah L. Shaw, Christopher T. Roach, Pierce Atwood, Portland, ME, and Erik N. Saltmarsh, Erin KochGoodman, California Electricity Oversight Board, Sacramento, CA, were on the joint brief of the intervenors, as attorneys for California Electricity Oversight Board. Arocles Aguilar, Sean Gallagher, Jonathan Bromson, Public Utilities Commission of the State of California, San Francisco, CA, were on the joint brief of the intervenors, as attorneys for the Public Utilities Commission of the State of California., Richard P. Bress, Michael J. Gergen, Jared W. Johnson, David G. Tewksbury, Stephanie S. Lim, Latham & Watkins LLP, Washington, DC, were on the brief of intervenor Mirant Americas Energy Marketing LP., Paul J. Pantano, Jr. and Catherine M. Krupka, McDermott, Will & Emery LLP, Washington, DC, were on the brief of intervenor Morgan Stanley Capital Group Inc.


• For Appellees:
  
• Lona T. Perry, Attorney, Federal Energy Regulatory Commission, Washington, DC, argued the case and was on the briefs of the respondent.  Cynthia A. Marlette, General Counsel, and Dennis Lane, Solicitor, were also on the briefs as attorneys for the respondent., Kenneth W. Irvin, Morrison & Foerster LLP, Washington, DC, argued the case and was on the joint brief of the intervenors in support of the respondent, as attorney for El Paso Merchant Energy, LP. Edward J. Twomey and Bruce Barnard were also on the joint brief as attorneys for the same party., Merrill L. Kramer, Robert Shapiro, and Robin D. Ball, Chadbourne & Park LLP, Washington, DC, were on the joint brief of the intervenors in support of the respondent, as attorneys for Allegheny Energy Supply Company, LLC., Clark Evans Downs, Martin V. Kirkwood, Kenneth B. Driver, Jonathan F. Christian, Jones Day, Washington, DC, were on the joint brief of the intervenors in support of the respondent, as attorneys for American Electric Power Service Corp., Mark R. Haskell, Morgan, Lewis & Bockius LLP, Washington, DC, was on the joint brief of the intervenors in support of the respondent, as attorney for BP Energy Company., Sarah G. Novosel, Calpine Corporation, Washington, DC, was on the joint brief of the intervenors in support of the respondent, as attorney for Calpine Energy Services, LP., Charles A. Moore, Leboeuf, Lamb, Greene & MacRae, LLP, Houston, TX, was on the joint brief of the intervenors in support of the respondent, as attorney for Enron Power Marketing, Inc., Randoplph Q. McManus and Melissa E. Maxwell, Baker Botts LLP, Washington, DC, were on the joint brief of the intervenors in support of the respondent, as attorney for Reliant Energy Services, Inc.