For convenience's sake we, like the parties, will refer to Petitioner as Chehalis. Since the commencement of this litigation, Chehalis's corporate parent, TNA Merchant Projects, Inc., the Petitioner in this case, has sold its equity ownership interests in Chehalis but retained the right to litigate this matter.
#CAL PUBLIC UTILITIES CODE SECTION 2167 F FULL#
FERC amply explained why recoupment is justified in this case, but in assessing the equities the Commission did not consider whether something less than full recoupment might be warranted.Ĭhehalis operates an electric generating plant that is interconnected with the electric transmission system of Intervenor, a federal agency within the Department of Energy. However, we remand the case to allow the Commission to determine whether it should apportion its recoupment order. We reverse the Commission's determination that the Act does not grant the agency authority to order Bonneville to repay the funds that it should not have received.
We uphold FERC's determination that, on the record of this case, recoupment of funds by Chehalis is appropriate. An order of recoupment, as distinguished from an order to refund under § 205, is beyond the strictures of § 201(f) and § 205. And § 201(f) does not limit the authority of FERC to grant relief under § 309 with respect to matters that are beyond the strictures of § 201(f) and § 205. Section 309 vests the Commission with broad remedial authority, including the authority to grant recoupment when it is justified. Therefore, FERC retained the authority to order Bonneville to return the funds when the agency acknowledged that its initial order was mistaken. The strictures of §§ 201(f) and 205 place no limits on FERC's ability to grant this form of relief.įERC clearly had jurisdiction over the subject of this dispute – i.e., the funds that it ordered Chehalis to pay to Bonneville in refunds pursuant to § 205 of the FPA. FERC determined that because it could not require Bonneville to grant “refunds” under § 205, it was also barred from granting “recoupment” of a refund in favor of Chehalis. In concluding otherwise, FERC looked to §§ 201(f) and 205 which prohibit it from ordering governmental entities, such as Bonneville, to refund “rates or charges” that FERC determines are “not justified.” 16 U.S.C. § 825h, clearly affords FERC the authority necessary to make Chehalis whole. Section 309 of the FPA, which permits FERC to “perform any and all acts ․ necessary or appropriate to carry out provisions,” 16 U.S.C. We hold that FERC erred when it held that it lacked the authority to grant the Order Requiring Recoupment. FERC, however, in a perplexing decision, held that it could not order recoupment because the Commission's refund authority does not extend to exempt public utilities such as the Intervenor Bonneville. Chehalis sought relief from FERC by filing a Motion for an Order Requiring Recoupment of Payments. But Bonneville Power Administration (“Intervenor”), the customer to whom Chehalis had paid the refund, had no interest in voluntarily returning the money. It determined that Chehalis should not, after all, have been required to pay these funds and held that Chehalis ought to recover funds with interest. Several years later, FERC had second thoughts. Jensen, Attorney, Bonneville Power Administration, entered appearances.ĮDWARDS, Senior Circuit Judge: In 2008 the Federal Energy Regulatory Commission (“FERC” or “Commission”) invoked Section 205 of the Federal Power Act (the “Act” or “FPA”) to order Chehalis Power Generating, L.P., (“Chehalis”) to refund a portion of the rates it had charged a customer because they were not just and reasonable.
Attorney, Bonneville Power Administration, argued the cause for intervenor. Chu, Attorney, Federal Energy Regulatory Commission, argued the cause for respondent. Mitchell argued the cause and filed the cause for petitioner. 13-1008 Decided: May 19, 2017īefore: PILLARD, Circuit Judge, and EDWARDS and SENTELLE, Senior Circuit Judges. FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT BONNEVILLE POWER ADMINISTRATION, INTERVENOR No. TNA MERCHANT PROJECTS, INC., PETITIONER v. United States Court of Appeals, District of Columbia Circuit.
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