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Absolute Power

Reviewing FERC's omnipotence over markets.

Fortnightly Magazine - November 1 2002

the discretion and the authority to change its position-even abruptly-in any specific case because a change in policy does not affect the legal norm."

In fact, the American Public Power Association, in filings, says that even if FERC adopts the "public interest" standard, that Mobile-Sierra affirms its authority.

"The Supreme Court's Mobile-Sierra decisions did not deprive the commission of its authority to protect the public interest by ensuring that rates are just, reasonable and not unduly discriminatory… On the contrary, Mobile made a point of emphasizing that 'denying to natural gas companies the power unilaterally to change their contracts in no way impairs the regulatory powers of the commission.'"

As the D.C. Circuit recently explained, the commission may not take away rights granted by statute. Only the contracting parties may bargain away their "rights." So, it appears this whole debate has served to review one very important point about today's FERC authority-it has not changed.

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