Plaintiffs advance two final arguments. First, plaintiffs argue that the language in § 836(b)(5) of the NRA, which states that "in the event project power is sold to any purchaser for resale, contracts for such sale shall include adequate provisions for establishing resale rates, to be approved by [PASNY], consistent with paragraphs (1) and (3) of this subsection," 16 U.S.C. § 836(b)(5), would be meaningless unless § 836(b)(3) established a cost-based rate standard for Replacement Power. Defendant counters that § 836(b)(5) cannot be read to establish a particular rate standard if no such standard exists in § 836(b)(3). The court finds defendant's argument persuasive. In terms of setting rate standards, § 836(b)(5) has no content of its own; it is entirely dependent on the content of subsections (b)(1) and (b)(3). This point can be seen by comparing § 836(b)(5) with a similar clause in PASNY's enabling statute, which states: "Contracts for the sale, transmission and distribution of power generated by [PASNY's hydroelectric] projects shall provide for the effectuation of the foregoing policy . . . ." N.Y. Pub. Auth. Law § 1005(5). The "foregoing policy," which has been quoted previously in this opinion, set forth two different rate standards: first, a cost-based standard for domestic and rural consumers, and second, a standard for sale to industry as a "secondary purpose, to be utilized principally to secure a sufficiently high load factor and revenue returns to permit domestic and rural use at the lowest possible rates . . . ." Id. Both § 1005(5) and § 836(b)(5) direct PASNY to ensure that contracts for sale (or resale) of its hydroelectric power comply with previously-referenced standards. Neither section, however, requires that those standards be cost-based.
This conclusion is not contradicted by the legislative history of the NRA, as there is almost no discussion therein about § 836(b)(5). The lone reference to this subsection in the committee reports accompanying the NRA is found in the House Report, supra, at 11, which simply rephrases the language quoted above. As stated previously, had Congress intended to set a cost-based standard for Replacement Power, it could have done so in unequivocal language. Section 836(b)(5) simply does not state that Replacement Power must be sold at cost.
Plaintiffs' final argument is that Congress could not have intended to grant PASNY unfettered discretion to determine the rates it would charge for Replacement Power. See, e.g. Item 37 at 14 n.7. This argument, of course, begs the question of what Congress intended without providing meaningful additional evidence or analysis. Besides, PASNY's actions are not completely beyond review. Even in cases where courts have held that Congress has provided "no law to apply," see OCC v. PASNY, 758 F. Supp. at 857-58 (discussing cases), if an agency "has ignored a plain statutory duty, exceeded its jurisdiction, or committed constitutional error," a court may step in. Hahn v. Gottlieb, 430 F.2d 1243, 1251 (1st Cir. 1970). See also Langevin v. Chenango Court, 447 F.2d 296, 304 (2d Cir. 1971); Massachusetts Pub. Interest Group v. United States Nuclear Regulatory Comm'n, 852 F.2d 9, 19 (1st Cir. 1985). Moreover, the NRA itself is not without checks on the discretion of PASNY. First, PASNY was required to obtain a license issued by the FPC. Second, PASNY's contract with Niagara Mohawk for the sale of Replacement Power was subject to "the approval of the Governor of the State of New York, pursuant to the procedure established by New York law . . . ." 16 U.S.C. § 836(b)(3). Finally, PASNY was required to convince Niagara Mohawk to consent to the surrender of its FPC license, along with any claims for damages associated therewith, before PASNY could gain access to all of the water flow from the Niagara River. Id.
For all the foregoing reasons, the court holds that § 836(b)(3) of the NRA does not require PASNY to sell Replacement Power at cost.
The parties are directed to meet with the court on March 26, 1992, at 2:00 p.m.
JOHN T. CURTIN
United States District Judge
Dated: March 11, 1992