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Louisiana Public Service Commission v. Federal Energy Regulatory Commission, et al.

Paid petition · United States Court of Appeals for the District of Columbia Circuit, No. 16-1382 · judgment March 6, 2018

Certiorari denied · November 13, 2018
Pre-decision estimate: 6% cert probability (95% interval 3%–11%)

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a D.C. Circuit decision below, a state or local-government petitioner, and a dissent in the court below (flagged in the petition).

Questions presented

  1. Given this Court’s holdings that the Federal Power Act (“FPA”) preempts inconsistent state ratemaking and requires state agencies to treat cost allocations made by the Federal Energy Regulatory Commission (“FERC”) as reasonable, may FERC deny a refund authorized by FPA Section 206(b) based on the threat of a state regulatory commission to violate the Supremacy Clause by denying recovery of the surcharge needed to make the refund?

  2. When FERC grants a refund for an unjust and unreasonable holding company cost allocation, pursuant to its policy to grant refunds for unjust and unreasonable rates, and numerous holding company refund decisions support the policy, may a court of appeals accept without scrutiny FERC’s subsequent reversal of its refund decision based on its assertion that its previously-cited policy never existed and its reversal of key prior findings without explanation?

Counsel of record

For petitioner
Michael R. Fontham
Stone, Pigman, Walther, et al.

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Amicus briefs
1 cert-stage

Proceedings

  1. Nov 13 2018
    Petition DENIED. Justice Kavanaugh took no part in the consideration or decision of this petition.
  2. Oct 24 2018
    DISTRIBUTED for Conference of 11/9/2018.
  3. Oct 19 2018
    Reply of petitioner Louisiana Public Service Commission filed.
  4. Oct 04 2018
    Brief of respondent Federal Energy Regulatory Commission in opposition filed.
  5. Sep 05 2018
    Motion to extend the time to file a response is granted and the time is extended to and including October 4, 2018.
  6. Sep 04 2018
    Brief amicus curiae of Arkansas Public Service Commission in support of respondent filed.
  7. Sep 04 2018
    Motion to extend the time to file a response from September 4, 2018 to October 4, 2018, submitted to The Clerk.
  8. Aug 01 2018
    Petition for a writ of certiorari filed. (Response due September 4, 2018)