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The Mobile-Sierra Doctrine: A Return to Its Statutory Roots

The 9th Circuit’s Snohomish and PUC decisions rationalize what has been a confusing, conflicted area of law.

Fortnightly Magazine - May 2007

19. Bridgeport Certification at P 36.

20. PJM Interconnection, LLC , 96 F.E.R.C. ¶ 61,206, at 61,878 & n.13 (2001) (citing cases, footnote omitted), pet. for rev. dismissed sub nom. PPL Elec . Utils. Corp. v. FERC , Nos. 01-1369 et al. (D.C. Cir. Nov. 26, 2002) (unpublished).

21. See NSTAR Elec. & Gas. Co. v. FERC , No. 05-1362, slip op. at 18 (D.C. Cir. Mar. 9, 2007) (“Although the system operator plainly has an incentive to ensure that system-critical power is available to ensure grid stability and reliability, FERC neither in its decisions nor at oral argument was able to identify incentives driving ISO-NE to bargain for low prices.”); Bridgeport (Comm’r Kelly, concurring).

22. 295 F.3d at 14 (emphasis added).

23. Town of Norwood v. FERC , 587 F.2d 1306, 1312 (D.C. Cir. 1978) (footnote omitted); cf. Public Util. Dist. No. 1 of Grays Harbor County, Wash. v. FERC , 379 F.3d 641, 652 & n.13 (9th Cir. 2004) ( Mobile-Sierra not implicated by complaint focused on contract formation issues).

24. 471 F.3d at 1075.

25. Sierra, 350 U.S. at 355.

26. Mobile, 350 U.S. at 344.

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