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August 27, 2001


The opinion of the court was delivered by: Mordue, District Judge


I. Introduction

The present matter arises in substantial part from the Public Utilities Regulatory Policies Act ("PURPA"), codified at 16 U.S.C. § 824a-3. PURPA was intended by Congress to promote long-term economic growth by reducing the nation's reliance on oil and gas, to encourage the development of alternative energy sources and thereby to combat a nationwide energy crisis. Section 210(a) of PURPA required the Federal Power Commission ("FPC"), now known as the Federal Energy Regulatory Commission ("FERC"), to "prescribe, and from time to time thereafter revise" rules requiring electric utilities to offer both to sell and purchase electric energy from qualifying cogeneration facilities ("QFs").*fn1 16 U.S.C. § 824a-3(a). Section 210(b) of PURPA required that the rates utilities paid for power purchased from QFs be "just and reasonable to the electric consumers" and "not discriminate" against QFs. 16 U.S.C. § 824a-3(b). Finally, in Section 210(e), PURPA exempted QFs from federal and state regulatory control in connection with rates and financial organization. See 16 U.S.C. § 824a-3(e).*fn2
Section 210(b) of PURPA declares that "[n]o such rule [promulgated by FERC] . . . shall provide for a rate which exceeds the incremental cost to the electric utility of alternative electric energy." 16 U.S.C. § 824a-3(b). The "incremental cost" to the electric utility of alternative electric energy is defined as "the cost to the electric utility of the electric energy which, but for the purchase from such cogenerator or small power producer, such utility would generate or purchase from another source." 16 U.S.C. § 824a-3(d). The incremental cost described by Congress in PURPA is defined in the accompanying regulations as "avoided costs," or those costs which the utility "avoided" incurring itself by purchasing power from a QF. See 18 C.F.R. § 292.101(b)(6).*fn3
In an effort to apply the tenets of PURPA to the states, Congress also directed that each state regulatory authority implement the rules prescribed by FERC pertaining to electric utilities' obligation to purchase power from QFs. See 16 U.S.C. § 824a-3(f).*fn4 Thus, in 1980, the New York State legislature enacted New York Public Service Law § 66-c, which provided that the defendant New York Public Service Commission ("PSC") would require state regulated electrical utilities to enter into long-term contracts, a/k/a power purchase agreements ("PPAs"), for the purchase of electricity from alternative energy sources, including cogeneration facilities. See N.Y. Pub. Serv. Law § 66-c. New York's definitions of a QF "overlapped aspects of the federal definitions, but [were] not identical thereto." Consol. Edison Co. of New York, Inc. v. PSC ("Consol. Edison I"), 98 A.D.2d 377, 380 (3d Dep't 1983) (citing N.Y. Pub. Serv. Law § 2 (2-a) and (2-b)). Generally, however, "those facilities that qualif[ied] under PURPA . . . also qualif[ied] under the [Pub. Serv. Law.]" Consol. Edison Co. of New York, Inc. v. PSC ("Consol. Edison II"), 63 N.Y.2d 424, 432 (1984). Furthermore, Section 66-c granted PSC authority to oversee the contracting process and set the purchase rate for long-term PPAs. See id.
The New York law did not adopt PURPA's "avoided cost" ceiling for purchases, however. In 1981, Section 66-c was amended to require PSC to establish a minimum sales price for power purchased from state qualifying QFs of at least six cents per kilowatt hour ("kwH"). See N.Y. L. 1981, ch. 843, § 9. The amendment, commonly referred to as the "Six-Cent Law," did not apply to federally qualified QFs, but as referenced above, most entities qualified as QFs under state law also qualified under PURPA.
Effective July 24, 1992, New York's legislature once again amended § 66-c of the Public Service Law and partially repealed the Six-Cent Law. The amendment preserved the minimum rate, however, for:
any contract fully executed by the parties and filed with the [PSC] on or before [June 26, 1992] and (i) providing for the purchase of electricity at such minimum sales price; or (ii) providing for the purchase of electricity at a utility tariff rate referencing a statutory minimum sales price; or (iii) providing for the reconciliation or recalculation of such contract's purchase price by comparison to such statutory minimum sales price or tariff rate, for the duration of any such contract and performance thereunder, provided however, that such minimum sales price shall be implemented in accordance with the policies and conditions established by [PSC.]
N Y Pub. Serv. Law § 66-c(2) (McKinney 1996 Supp.). The amendment also "grandfathered" QFs which had obtained the legal right to receive the statutory minimum of six cents per kwH by way of a final, unappealable judgment of a New York State court prior to January 1, 1987. See id.

Plaintiff, Niagara Mohawk Power Corporation ("Niagara"), a traditional electrical utility, brings the present action principally to obtain relief from eleven long-term contracts*fn5 with various QFs, none of which are parties in this case. In each instance, Niagara's PPA requires it to pay for energy purchased from QFs at six cents per kwH as required by the N Y Pub. Serv. Law. According to Niagara, its payments under the eleven PPAs in question will significantly exceed its "avoided costs" by approximately $93 million over the terms of the agreements unless the contracts, or the orders and requirements on which they are based, are "revoked or revised to comply with federal law" which limits rates for QF purchases to a utility's "incremental" or avoided costs. See 16 U.S.C. § 824a-3(b).

II. Procedural and Regulatory History

A. PURPA Regulations

PURPA required FERC to prescribe regulations to implement the statute "[n]ot later than 1 year after November 9, 1978." 16 U.S.C. § 824a-3(a). Following public rulemaking proceedings, FERC promulgated regulations governing transactions between utilities and QFs in connection with purchase and sales of electricity. See Small Power Prod. & Cogeneration Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed. Reg. 12214 (Feb. 25, 1980). In Am. Elec. Power Serv. Corp. v. FERC, 675 F.2d 1226 (D.C. Cir. 1982) ("AEP"), four utilities challenged the legality of the very regulations at issue in this case. There, the court held that FERC failed to adequately explain or justify its adoption of the full avoided cost standard in light of the enabling statute, PURPA, which mandated that rates charged to consumers be reasonable and that rates paid to QFs not exceed utilities' incremental costs. See AEP, 675 F.2d at 1232. The plaintiff utilities in AEP argued that the "just and reasonable" language regarding purchase rates in Section 210(b) of PURPA required that rates be set at the lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest. Although FERC could have enacted rules which required states to set PPA rates at less than avoided costs, FERC adopted "as a uniform rule, the maximum purchase rate specified in the statute," after concluding that the full avoided cost standard "would be just and reasonable in every case" as necessary to encourage cogeneration. Id. at 1233. The court found that FERC failed to adequately balance the interests of cogenerators, the public and consumers of electric utilities in rejecting, in an "across-the-board manner," PPA rates below full avoided costs. Id. at 1236.

In Am. Paper Inst., Inc. v. Am. Elec. Power Serv. Corp., 461 U.S. 402 (1983) ("API"), the Supreme Court reversed, in part, the D.C. Circuit's determination that FERC had improperly promulgated its avoided cost rules. There, the Court found that FERC had fulfilled its obligation under PURPA to set a rate which was "in the public interest," because "the words `public interest' in a regulatory statute . . . take meaning from the purposes of the regulatory legislation." 461 U.S. at 417 (quoting Nat'l Assoc. for the Advancement of Colored People v. FPC, 425 U.S. 662, 669 (1976) ("NAACP v. FPC")). The Court found that the primary purpose of PURPA was to encourage cogeneration and that the "just and reasonable to . . . consumers" language of PURPA required FERC only to "consider[] . . . potential rate savings for electric utility consumers." Id. at 415, n. 9. In the Court's estimation, FERC did consider the possibility of such rate savings, but rejected a percentage-of-avoided-costs approach after determining that purchase rates set at below avoided costs might discourage QF production. See id. at 415 (citing Small Power Prod. & Cogeneration Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed. Reg. at 12222-12223).

B. New York Legal and Administrative Proceedings

PSC adopted rules to implement both PURPA and Section 66-c of the N.Y. Pub. Serv. Law in 1982. See Consol. Edison Co. of New York, Inc., PSC Case No. 27574, Opinion No. 82-10, 48 P.U.R.4th 94 (May 12, 1982) (commonly referred to as "Opinion 82-10"). There, PSC set forth generic guidelines for calculation of a utility's avoided costs. PSC ordered all utilities to file estimated long-run avoided costs ("LRACs") a/k/a "buyback" tariffs designed to implement PURPA and N.Y. Pub. Serv. Law § 66-c. PSC further directed that New York utilities such as Consolidated Edison Company of New York, Inc. ("ConEd") must thereafter offer to purchase electric energy from QFs which were qualified under either PURPA or Section 66-c, or both, at a rate of least six cents per kwH. Opinion 82-10 also directed that QFs be paid the greater of the six-cent rate or the utility's avoided cost rate as set forth in its buyback tariffs.
ConEd challenged both PSC's requirement that it make purchases from QFs which only qualified under the Public Service Law and that it pay six cents per kwH pursuant to Article 78 of N.Y. Civ. Prac. L & R. . The utility argued that PURPA pre-empted the Six-Cent Law to the extent that it required utilities to pay more than its avoided costs for QF purchases. See Consol. Edison I, 98 A.D.2d at 380.*fn6 ConEd also contended that the FPA pre-empted PSC from compelling utilities to purchase power from purely state qualifying QFs since FERC has exclusive jurisdiction over sale of energy at wholesale in interstate commerce.*fn7 Niagara participated in the case as amicus curiae. The Appellate Division reversed PSC's order which implemented the Six-Cent Law, finding it was contrary to and pre-empted by federal law insofar as it required purchases in excess of the avoided cost rate established by PURPA and FERC regulations. The court also modified PSC's determination by holding that New York could only require ConEd to make purchases from QFs which qualified under PURPA. In the court's estimation, the required purchase of electricity from purely state qualifying QFs fell impermissibly under the pre-emptive blanket of the FPA. PSC filed an appeal of the Appellate Division's determination in Consol. Edison I. While awaiting decision by the Court of Appeals, PSC continued to direct utilities to sign contracts at the six-cent rate, but included provisions in said contracts to eliminate the statutory minimum if PSC lost on appeal. Niagara requested that one QF contract with Energy Oil, Inc., which was signed prior to the Appellate Division's decision in Consol. Edison I, but not forwarded for approval by PSC until after the notice of appeal was filed, be expressly conditioned on the outcome of the appeal. PSC declined to reformulate the contract but granted Niagara's request to obtain full recovery of the cost of the contract with Energy Oil, Inc. from its ratepayers. See Niagara Mohawk Power Corp.'s Request for Approval of a Purchase Agreement with Energy Oil, Inc. & Full Recovery of Purchase Costs via the Fuel Adjustment Clause (memorandum filed PSC session of March 28, 1984). Niagara did not appeal this order.
Following PSC's order that utilities file proposed purchase or "buyback" tariffs designed to implement PURPA and Public Service Law § 66-c in Opinion 82-10, Niagara proposed its buyback tariff which stated that QFs should be required to elect the statutory minimum of six cents per kwH should this rate exceed the utility's estimated LRACs. PSC rejected this proposal, reaffirming its directive in Opinion 82-10 that QFs be paid the higher of the two rates. See On-Site Generation Proceeding — Niagara Mohawk Power Corp.'s Proposed Buyback Tariff (Order Concerning Proposed Tariff), PSC Case No. 27574, 23 N Y P.S.C. 5204, 5227 (September 30, 1983). Niagara did not appeal this order. PSC thereafter approved Niagara's estimated LRACs, see Niagara Mohawk Power Corp. — Long-Run Avoided Costs (Order Endorsing Settlement & Establishing Policy on Long-Run Avoided Costs), PSC Case No. 28793, 24 N.Y. P.S.C. 5583, 5590 (October 12, 1984), but stated that unless it lost the appeal of Consol. Edison I, Niagara's minimum QF contract rate would be six cents per kwH. Again Niagara did not appeal this order. Less than two weeks later, PSC did prevail when the Court of Appeals modified the Appellate Division order in Consol. Edison II finding that PURPA did not pre-empt PSC regulation requiring electric utilities to purchase power from federally qualifying QFs at a rate in excess of avoided cost. See 63 N.Y.2d at 433. Essentially, the court determined after review of the statute's legislative history — particularly FERC's 1980 preamble to PURPA rules in which it suggested that states were free to impose rates in excess of avoided cost*fn8 — that PURPA's avoided cost ceiling was the maximum rate the federal government could require in the context of encouraging alternative power production. See Consol Edison II, 63 N.Y.2d at 435. After determining that N.Y. Pub. Serv. Law § 66-c furthered, rather than hindered, PURPA's objective by enhancing the bargaining power of QFs through a guaranteed rate of six cents per kwH, the court rejected ConEd's argument that a second equally compelling objective of PURPA was to avoid consumer-ratepayer subsidies of QFs. See id. at 437. Citing the Supreme Court's then recent decision in API, supra, the court held that the impact of the state-imposed rate on costs to consumer ratepayers was "but one factor that FERC was obliged to consider when it established avoided costs as the maximum rate to be imposed by Federal authorities." Id. The court noted the Supreme Court's acceptance of FERC's explanation that "it was more important that the rate `provide a significant incentive for a higher growth rate' and that the resulting decreased reliance on fossil fuel would benefit ratepayers and the nation as a whole." Id. (citing API, 461 U.S. at 414 (quoting Small Power Prod. & Cogeneration Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed. Reg. at 12222)). The court then reasoned "[s]imilarly, while it is recognized that ratesavings may not be achieved for consumers under [the Six-Cent Law] because the . . . per kilowatt hour rate may at times exceed current avoided costs, . . . the rate does nevertheless further PURPA's objective because it encourages alternate energy production, and in a manner suited to the needs of this State." Id. at 438.
Based on the foregoing, the Court of Appeals held that state regulation in the field was "not supplanted by PURPA but could be used to expand the federal PURPA-based incentives." Id. at 436. In sum, the court held that PSC had the authority to require utilities to offer to purchase power from federally qualified QFs, including those that qualified under both PURPA and New York law, at a minimum rate of six cents per kwH in accordance with § 66-c of the Pub. Serv. Law. The court, however, did affirm the holding of the Appellate Division insofar as it deemed PSC regulations which required utilities to offer to purchase power from purely state qualifying QFs pre-empted by the FPA.*fn9 PSC had argued that such sales were not pre-empted because the FPA only prohibits state regulation of "interstate" wholesale power transactions and sales from state QFs to state utilities remained purely intrastate. The court rejected this argument finding that a sale is in "interstate commerce" if the electric energy is "transmitted from a State and consumed at any point outside thereof." Consol. Edison II, 63 N.Y.2d at 439-40 (citing 16 U.S.C. § 824 (c)). The FPA was enacted to "fill the gap" left by the Supreme Court's decision in Public Utils. Comm'n of Rhode Island. v. Attleboro Steam & Elec. Co., 273 U.S. 83, 89-90 (1927), which held that states lacked power to regulate interstate sales of electricity at wholesale. See id. Rather, exclusive regulatory authority in this field was delegated to FERC under the FPA. See id. (citing New England Power Co. v New Hampshire, 455 U.S. 331, 340 (1982)). Based thereupon, the court determined that the FPA pre-empted any regulation by PSC of sales at wholesale in interstate commerce between a utility such as ConEd and purely state qualifying QFs. See id. ConEd appealed the court's refusal to find pre-emption to the United States Supreme Court but the case was dismissed summarily for want of a substantial federal question. See Consol. Edison Co. of New York, Inc. v. PSC ("Consol. Edison III"), 470 U.S. 1075 (1985). This was the only time Niagara sought judicial review of the constitutionality of the "Six-Cent Law."*fn10 Despite its objections to paying what it considered to be an unlawful minimum rate, Niagara complied with several PSC orders between 1982 and 1992 which required it to pay more than its avoided costs for QF power purchases.*fn11 In lieu of appeal or challenge of these orders, Niagara was awarded, in most cases, the right to "pass through" the costs of these PPAs directly to its ratepayers.

C. FERC Proceedings

On July 31, 1987, Orange and Rockland Utilities, Inc. ("O & R"), along with two other New York utilities, filed a petition with FERC for a declaratory order challenging the application of the Six-Cent Law to QF purchases. Niagara, along with Long Island Lighting Company ("LILCO"), intervened in this proceeding. In a decision which reversed its previous position as set forth in the 1980 preamble to PURPA regulations, FERC issued a prospective order on April 14, 1988, holding that in light of changes which had occurred in the industry since 1980, states thereafter could not impose any rate for sales by QFs to utilities in excess of avoided cost. See Orange & Rockland Utils., Inc. ("O & R I"), 43 F.E.R.C. ¶ 61,067, reh'g denied, 43 F.E.R.C. ¶ 61,546 (1988). However, on June 16, 1988, FERC stayed this prospective order, see Orange & Rockland Utils., Inc. ("O & R II"), 44 F.E.R.C. ¶ 61,547, reh'g denied, 44 F.E.R.C. ¶ 61,273 (1988), pending judicial review or completion of a then-pending rulemaking proceeding.*fn12 PSC, among others, appealed O & R I to the Second Circuit which held that judicial review was premature. See Occidental Chem. Co. v. FERC, 869 F.2d 127, 129 (2d Cir. 1989). Although the court found that FERC's decision in O & R I "created considerable uncertainty in the industry," it nevertheless determined that FERC had taken no final action which was ripe for review citing the June 16, 1988, order staying O & R I as well as the ongoing rulemaking proceeding. See id. at 128-29. Thus, the application of FERC's decision in O & R I remained in limbo.

On January 11, 1995, FERC issued Connecticut Light & Power Co., 70 F.E.R.C. ¶ 61,012 (1995) ("CL & P I"), another declaratory proceeding in which Niagara had intervened. There, FERC declared that a Connecticut statute, which, as applied, could require an electric utility such as Connecticut Light and Power Co. ("CL & P") to purchase power from certain types of QFs (resource recovery facilities owned or operated for the benefit of municipalities) at a rate above avoided cost, was pre-empted by PURPA. See CL & P I, 70 F.E.R.C., at 61,029. FERC rejected the argument that the preamble to its own rules and regulations under PURPA suggested that states could set rates above avoided costs. See id. Rather, FERC stated that the language of its 1980 preamble was unsupported by legal rationale or analysis and that it could not "ascertain at this date any legal basis under which states have independent authority to prescribe rates for sales by QFs at wholesale that exceed the avoided cost cap contained in PURPA." Id. Therefore, FERC held that the Connecticut statute, insofar as it would require rates in excess of avoided cost, was pre-empted. FERC determined that this result was "appropriately applied" to CL & P, because CL & P "ha[d] been challenging this rate since at least 1987." Id. FERC warned it would "not entertain requests as a result of this order asking us to invalidate on this basis other, pre-existing contracts where the avoided cost issue could have been raised. The appropriate time to challenge a state-imposed rate is up to or at the time the contract is signed, not several years into a contract which heretofore has been satisfactory to both parties." Id. Henceforth, however, FERC determined that contracts which were the product of state law or policy requiring PPA rates in excess of avoided costs would be void ab initio. See id., at 61,030.

As referenced above, the New York legislature amended Public Service Law § 66-c in 1992 by partially repealing the Six-Cent Law. On the same day as it issued CL & P I, FERC filed Orange & Rockland Utils., Inc.("O & R III"), 70 F.E.R.C. ¶ 61,014 (1995), in which it dismissed as moot O & R's original petition (in which Niagara had intervened). There, FERC determined that its decision in O & R I had never become effective. To wit, FERC held that the April 14, 1988, order was not intended to apply retroactively and that it was almost immediately stayed by virtue of O & R II on June 16, 1988. "The prospective application of the April 14 order coupled with the stay of that order resulted in that order never having been made effective." O & R III, 70 F.E.R.C., at 61,034. As a further matter, "the statutory minimum six-cent rate which was the subject of the petition" was repealed. Id. FERC thus determined that O & R's petition had been "overtaken by subsequent events," was therefore moot and would be dismissed. Id.
FERC rejected this argument finding in the first instance that "[w]hile dismissal of an appeal for want of a substantial federal question is a decision on the merits of a particular case insofar as it leaves the underlying judgment undisturbed," it did not mean that FERC and all other subsequent courts were bound "for all time and in all cases by the New York Court of Appeals' interpretation of the meaning and reach of PURPA." Id. (citing Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 477 n. 20 (1979) (summary action by Supreme Court does not necessarily reflect agreement with the opinion of the court whose judgment is appealed); Anderson v. Celebrezze, 664 F.2d 554, 558-60 (6th Cir. 1981) aff'd in relevant part, 460 U.S. 780, 784 n. 5 (1983) (to reach any other conclusion would allow parties seeking Supreme Court review to control effect of Supreme Court's summary actions through careful structuring of appeals)). Rather, FERC determined that the Supreme Court's dismissal on jurisdictional grounds "went only to the specific challenges presented to the Supreme Court . . . only to what was necessary for the Supreme Court to decide the case; its reach went no further." CL & P II, 71 F.E.R.C., at 61,152-53 (citing Anderson, 460 U.S. at 785 n. 5). Moreover, FERC held that the Court of Appeals' decision in Consol. Edison II relied to a great extent on the 1980 preamble to FERC's PURPA rules, a "predicate which has now been overturned." Id.

Insofar as the arguments by Niagara and LILCO regarding FERC's refusal to apply its pre-emption determination on the merits to parties and contracts not directly before it in CL & P I, FERC deemed its actions necessary to "avoid the substantial injustice that our determination on the merits in this proceeding might otherwise have created if applied to invalidate other, pre-existing QF contracts that [were] not involved in the present litigation." Id., at 61,154.

Id. Importantly, FERC suggested that Niagara was merely an interested participant in CL & P's challenge of a Connecticut statute rather than a party which had presented its own specific factual and legal challenge to application of the Six-Cent Law. Indeed, FERC noted that based on Niagara and LILCO's intervenor — as opposed to party — status, it had no knowledge of "precisely how many contracts and how many different projects" would be affected by its pre-emption challenge. Id., at n. 43. FERC thus denied the petitions for reconsideration filed by Niagara and LILCO.
In O & R IV, both utilities objected to FERC's determination that the petition filed by O & R in 1987 was moot and asked FERC to deem contracts with QFs set at rates above avoided cost void ab initio or at least those entered since April 14, 1988. See 71 F.E.R.C., at 61,145. FERC denied both petitions emphasizing that its April 14, 1988, order in O & R I was to be applied only on a prospective basis. See id., at 61,146. Indeed, FERC deemed it "inappropriate at this date to agree to LILCO's and Niagara's requests and now make such a determination effective as to all pre-existing contracts." Id., at 61,146-47. Niagara and LILCO relied on CL & P I in arguing that like the petitioner utility in that case, they had been challenging the Six-Cent Law since 1987 when O & R first filed its petition. Thus, the utilities contended that like the Connecticut statute, the Six-Cent Law should be found to be inconsistent with and pre-empted by PURPA.
FERC disagreed noting that it had expressly declined to extend its ruling in CL & P I to pre-existing contracts where the issue of pre-emption could have been raised but was not to avoid "substantial injustice." Id., at 61,147. In fact, FERC noted that it reaffirmed this determination in CL & P II on reconsideration. While FERC acknowledged that the Six-Cent Law had been under challenge since 1987, it declined to afford Niagara and LILCO the same status it had extended to CL & P. FERC reasoned in the first instance that Niagara:
was and is only an intervenor in this proceeding. Niagara . . . has never filed a separate petition seeking relief as to its own QF contracts. Moreover, since 1988, when [FERC] limited its order in this proceeding to future contracts, and then stayed the effectiveness of the order, Niagara . . . has made no filing at [FERC] or, to our knowledge, initiated state or federal court litigation seeking to challenge the rates in its own QF contracts as violating the avoided cost requirement of PURPA. This contrasts starkly with the continuing effort by [CL & P] to challenge its contract in state court, in federal court and then at this Commission.
Id. Furthermore, FERC rejected the notion that Niagara and LILCO had relied justifiably on FERC's pre-emption determination in O & R I since that order was to apply only prospectively and its effectiveness was nevertheless almost immediately stayed. "For the Commission, at this late date, suddenly to act to invalidate existing contracts that expressly had not been invalidated by its earlier orders in this proceeding ...

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