TEXAS my state!

Did a panel of the US Court of Appeals for the District of Columbia Circuit bid adieu to the half century-old Mobile Sierra doctrine on contract stability when it otherwise affirmed the Federal Energy Regulatory Commission’s approval of a multi-party settlement that phases in a Forward Capacity Market in New England?  Notwithstanding alarms to the contrary, it did not.   The panel in Maine Public Utilities Comm’n v. FERC ruled that the challenges of non-settling parties to prices set in the new Forward Capacity Market are to be judged under the statutory just and reasonable standard of review, and not the deferential standard applied under Mobile Sierra when a party to a contract (or its privies) unilaterally seeks to change the terms of its agreement.  That ruling does not show the Supreme Court’s Mobile Sierra doctrine the door.

In companion cases, United Gas Pipe Line Co. v. Mobile Gas Serv. Corp and Fed. Power Comm’n v. Sierra Pacific Power Co., the Supreme Court in 1956 held that the terms of a valid, bilaterally negotiated wholesale energy contract are presumptively just and reasonable under the Federal Power and Natural Gas Acts, and that FERC has authority under those statutes to set aside such contracts only in extraordinary circumstances of unequivocal public interest.  Showing only that the contract had become unprofitable to one of the parties was not enough to allow that party unilaterally to change the contract.

Consistent with the Supreme Court’s ruling, the Maine PUC panel affirmed a settlement provision that rates set in the Forward Capacity Market could be presumptively just and reasonable as to parties consenting to the settlement agreement, which parties thereafter could not set aside those rates except on a showing of unequivocal public necessity.  FERC erred, however, and the panel reversed when FERC extended that proposition to the eight (of over 150) parties who did not join but rather “vociferously” opposed the settlement.  In other words, the panel ruled that parties to a wholesale energy contract or settlement agreement who become unhappy with their bargain could be made subject to the higher burden of proof imposed by the deferential Mobile Sierra doctrine, but not non-parties.  This is not a rejection of Mobile Sierra.  Rather, the panel’s language strongly reaffirms the doctrine’s deference to all contracts and forcefully restates the heavy burden imposed on any party seeking to change its contract.

This reaffirmation is significant and timely, since the Supreme Court recently heard argument and will soon decide whether to reverse a ruling of the full US Court of Appeals for the Ninth Circuit that would eviscerate the Mobile Sierra doctrine.  The Ninth Circuit held that the doctrine applies only insofar as the contract was entered into in a market determined to be workably competitive at the time, FERC reviewed and approved the contract, and that the challenge came from a purchaser but not a seller.  The Maine PUC decision now joins the robust body of Mobile Sierra case law that requires reversal of the Ninth Circuit.

News z: Haley Mittler