Supreme Court issued a decision, described below, of interest to the business
Morgan Stanley Capital Group, Inc. v. Public Util. Dist. No. 1,
Nos. 06-1457 & 06-1462 (previously discussed in the
September 25, 2007 Docket Report).
Federal Power Act (FPA), the Federal Energy Regulatory Commission (FERC) has the
power to invalidate wholesale electricity rates that are not “just and
reasonable.” 16 U.S.C. § 824d(a). Under the judicially created Mobile-Sierra
presumption, a contract for the sale and purchase of wholesale electricity is
presumed to be “just and reasonable,” unless the resultant electricity rates
harm the public interest. In Morgan Stanley Capital Group, Inc. v. Public
Util. Dist. No. 1 of Snohomish County, Washington, Nos. 06-1457 and
06-1462, the Court held that the Mobile-Sierra presumption applies broadly to
all arms-length wholesale electricity contracts—even those that were entered
into under dysfunctional market conditions and end up imposing onerous terms on
one side after the market is stabilized.
Today’s decision is important to participants in the regulated energy market.
Although the Court did not address whether FERC’s policy of pre-approving
wholesale electricity contracts without considering their terms is statutorily
permissible, the Court confirmed that when a wholesale electricity contract is
subsequently challenged under § 824d(a), the level of regulatory scrutiny is
affected neither by whether the contract was subject to prior FERC review nor by
whether it is the seller or purchaser challenging the contractual rates.
The parties to the contracts at issue were institutional electricity
purchasers (regional power companies in California, Washington, and other
western states) and large wholesale electricity suppliers. The purchasers
entered into long-term contracts with the suppliers during the California energy
crisis of 2000-2001. Eager to hedge against price volatility during the crisis,
the purchasers later came to regret being locked into contracts to buy
electricity at rates that were onerously high in the post-crisis market.
The purchasers sought a rate reduction before FERC. Because the electricity
contracts were filed under the “market-based rate system” (a FERC innovation
from 1996 that allows parties, under certain conditions, to enter into power
contracts at unspecified prices without explicit FERC approval), the purchasers
urged FERC not to apply the Mobile-Sierra presumption. FERC, however,
ruled that the Mobile-Sierra presumption applied, and then declined to
adjust the rates, finding that they did not harm the public interest. In so
doing, FERC rejected the suggestion that the energy suppliers’ alleged unlawful
market manipulation had harmed the public interest, even though it was
purportedly partly to blame for destabilizing the California energy markets.
The purchasers appealed to the Ninth Circuit, which significantly narrowed
the reach of the Mobile-Sierra presumption, and then remanded the cases
to FERC for further review. The Ninth Circuit held (1) that the
Mobile-Sierra presumption does not apply unless FERC has first approved the
contract rates in light of the market conditions under which the contract was
formed; and (2) that a purchaser challenging a high rate can overcome the
Mobile-Sierra presumption merely by demonstrating that the rate fell
outside a “zone of reasonableness.”
The Supreme Court, per Justice Scalia, affirmed the judgment of the Ninth
Circuit, but upon different grounds. First, the Court held that FERC had
correctly decided to apply the Mobile-Sierra presumption to the
market-based rate contracts at issue, even though FERC had not approved the
rates to begin with. The Court stated that the Mobile-Sierra
presumption applies whenever an electricity contract rate is challenged under
the FPA—even if the contract is already in force. The Court stated that “the
just-and-reasonable standard . . . applies regardless of when the contract is
reviewed.” Slip op. at 17.
Second, the Court held that the Ninth Circuit’s modification of the
Mobile-Sierra presumption for purchasers of electricity challenging high
rates (as opposed to suppliers challenging low rates) was contrary to the
purpose of the FPA. While high rates may be painful to some purchasers and their
consumers in the short run, to invalidate such contracts based on a
reasonableness test “would threaten to inject more volatility into the
electricity market by undermining a key source of stability,” i.e.,
mutually agreed-upon contract prices. Slip op., at 22. The Court emphasized that
only “unequivocal public necessity” or “extraordinary circumstances” can justify
setting aside such arms-length contracts. Id.
Nonetheless, the Court remanded the cases to FERC for further consideration
after the Court found two deficiencies in FERC’s prior proceedings. First, the
Court directed FERC to consider not just the contracts’ short-term effects on
consumer prices, but also the long-term effects. For example, if rates for the
purchasers’ consumers will remain excessively high over the long term, the
public’s interest in paying reasonable rates may outweigh the contracts’
positive effect on market stability, thus justifying the invalidation of the
contract rates. Second, the Court directed FERC to amplify why it found that the
energy suppliers’ allegedly unlawful market manipulation did not affect the
contracts at issue. The Court held that if FERC could determine that such
“causality has been established, the Mobile-Sierra presumption should
not apply.” Slip op. at 26.
Justice Ginsburg filed an opinion concurring in part and concurring in the
judgment. Justice Stevens filed a dissenting opinion in which Justice Souter
joined. The Chief Justice and Justice Breyer took no part in the consideration
or decision of the cases.