United States DC Circuit

Petitions for review challenging respondent's orders accepting proposed tariffs affecting wholesale power markets are denied as to two groups of petitioners and are dismissed as to cooperative petitioners over claims that: 1) respondent should have required more stringent market power mitigation measures and that its approval of the marginal loss refund mechanism was arbitrary and capricious; 2) the imposition of Schedule 17 charges on carved-out grandfather agreements (GFAs) was arbitrary and capricious and that the denial of their request for an evidentiary hearing violated the Administrative Procedure Act and the Due Process Clause; and 3) all GFAs should have been required to choose between conversion to the Tariff, certain options, and that respondent acted arbitrarily by carving out some GFAs entirely and granting others favorable treatment under another option.

Appellate Information

• Argued 04/26/2007
• Decided 07/20/2007
• Published 07/20/2007

Judges

• Before:  GINSBURG, Chief Judge, and GARLAND and KAVANAUGH, Circuit Judges.

Court

• United States DC Circuit

Counsel

• For Appellant:
  
• Mark S. Hegedus argued the cause for petitioners Midwest Transmission Dependent Utilities and Wisconsin Public Power Inc. With him on the briefs were Cynthia S. Bogorad, David E. Pomper, Louis R. Cohen, Jonathan J. Frankel, Heather Zachary, and Michael R. Postar., Jeffrey L. Landsman argued the cause for petitioners National Rural Electric Cooperative Association and Dairyland Power Cooperative on grandfathered agreement issues.   With him on the briefs was Wallace F. Tillman., John N. Estes, III argued the cause for petitioners Duke Energy Shared Services, Inc. and Xcel Energy Services Inc. With him on the briefs were Noel H. Symons, John L. Shepherd, Jr., J. Alexander Cooke, Floyd L. Norton, IV, Stephen M. Spina, and Joseph C. Hall., Stephen L. Teichler argued the cause for intervenor Midwest Independent Transmission System Operator, Inc. With him on the brief were Ilia Levitine and Stephen G. Kozey.


• For Appellees:
  
• Elizabeth E. Rylander, Attorney, and Judith A. Albert, Senior Attorney, Federal Energy Regulatory Commission, argued the cause for respondent.   With them on the brief was Robert H. Solomon, Solicitor., Cynthia S. Bogorad, David E. Pomper, Mark S. Hegedus, Louis R. Cohen, Jonathan J. Frankel, Heather Zachary, Jeffrey L. Landsman, Alan I. Robbins, and Debra D. Roby were on the brief for intervenors Wisconsin Public Power Inc., et al. in support of respondent., John N. Estes, III, Noel H. Symons, and John L. Shepherd, Jr. were on the brief for intervenor Duke Energy Shared Services, Inc. in support of respondent.