New York State Electric & Gas Corp. v. Federal Energy Regulatory Commission
Opinion of the Court
JUDGMENT
These causes came to be heard on the record on petitions for review of an order of the Federal Energy Regulatory Commission, and were considered on the briefs and supplemental briefs of the parties. See D.C. Cir. R. S4(j). The issues have been accorded full consideration by the Court and occasion no need for a published opinion. See D.C. Cir. R. 36(b). It is
ORDERED AND ADJUDGED by the Court that the petitions be denied. This Court lacks jurisdiction to consider the issues denominated II.A, II.C, and III in petitioners’ opening brief because petitioners did not raise them on rehearing. See
Petitioners properly raised on rehearing the issue denominated II.B in their opening brief, and the Commission properly rejected their arguments. Even if the Commission’s position in Pacific Gas & Elec. Co., 81 F.E.R.C. ¶ 61,122, 1997 WL 805937 (1997), is inconsistent with the position it took here, the Commission is, as it explained on rehearing, entitled to revisit a decision it considers erroneous rather than apply it to petitioners. See New York Indep. Sys. Operator, Inc., 91 F.E.R.C. ¶ 61,012 at 61,051 n. 23, 2000 WL 344012 (2000); Stichting Pensioenfonds Voor de Gezondheid v. United States, 129 F.3d 195, 201 (D.C.Cir. 1997). Moreover, the Commission’s order in Pacific Gas & Electric appears consistent with its order in this case. The Commission made clear in Pacific Gas & Electric that the “proposed limitations on liability [are] overbroad” and “go[] too far, in that [they] would also excuse the ISO or PX from liability in cases of negligence or intentional wrongdoing....” 81 F.E.R.C. at 61,520. As it did in this ease, the Commission concluded in Pacific Gas & Electric that “the determination of the ISO’s or PX’s liability in instances of negligence or intentional wrongdoing is best left to appropriate court proceedings, in which the parties will be free to advance any appropriate argument.” Id.; see also New York Indep. Sys. Operator, Inc., 90 F.E.R.C. ¶ 61,015 at 61,034, 2000 WL 20219 (2000).
The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cír. R. 41(a)(1).
Reference
- Full Case Name
- NEW YORK STATE ELECTRIC & GAS CORPORATION v. FEDERAL ENERGY REGULATORY COMMISSION, Dynegy Power Marketing, Inc., Intervenors
- Status
- Published