2010 Law & Lawyers Report
Bruce W. Radford is publisher of Public Utilities Fortnightly.
1. Private Bargaining vs. Public Interest
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High Court expands Mobile-Sierra Doctrine, putting “stability” and “certainty” ahead of ratepayer rights.
In a decision issued in January, in the case of NRG Power Marketing LLC v. Maine PUC, the U.S. Supreme Court ruled in essence that ordinary ratepayers, represented by state attorneys general and regulatory advocates, can’t avail themselves of the “just and reasonable” principle to overturn a utility rate contract they didn’t agree to, but which instead was put together by numerous other utilities, stakeholders, and energy trading wheeler-dealers—thus showing just how far today’s policymaking has strayed from the power-to-the-people ethic embodied in the original, depression-era Federal Power Act.
The case involved New England’s Forward Capacity Market, born of a settlement agreement OK’d by FERC in 2006 as an alternative to the highly contentious LICAP construct first proposed by ISO New England. Of 115 negotiating parties, eight refused to go along. But the Supreme Court ruled in effect that the Mobile-Sierra doctrine barred any challenge from the eight dissenters.