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04/05/83 Cities of Carlisle and v. Federal Energy Regulatory

April 5, 1983





Petition for Review of an Order of the Federal Energy Regulatory Commission.


Robinson, Chief Judge, Wilkey, Circuit Judge, McGowan, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Wilkey.


Petitioners, the Cities of Carlisle and Neola, Iowa, seek review of the Federal Energy Regulatory Commission decision *fn1 to accept without suspension a rate filing by the Iowa Power and Light Company , which supplies electricity to petitioners. *fn2 We find that FERC's decision in this case is not subject to judicial review, and therefore must dismiss the petition. I. FACTS

Iowa Power and Light submitted its proposed rates in two abbreviated filings made on 8 September 1981. *fn3 The Cities petitioned FERC either to reject the filing on the ground that inadequate cost-of-service data had been provided or to suspend the rate filing for five months. *fn4 The Commission then notified IP&L that additional data would be required before the rates could be accepted for filing; Iowa Power and Light provided additional cost-of-service information on 28 October 1981. *fn5 However, Cities continued to argue that the rate filing should be rejected or suspended pending investigation because the information provided was distorted. *fn6

After considering the submissions of the parties, FERC accepted the proposed rates for filing and terminated the docket in the case without hearing, pursuant to its power under section 205 of the Federal Power Act. *fn7 The Commission found that IP&L had "substantially complie[d]" with the filing requirements, but stated that its acceptance did not constitute approval of the rate. *fn8 After the Commission denied Cities' application for rehearing, *fn9 Cities filed a petition for review in this court. II. ANALYSIS

The Federal Power Act *fn10 provides two alternative avenues for FERC consideration of the lawfulness of electric rates and charges. Under section 205, the Commission may begin a proceeding when a new rate schedule is filed with it. In this proceeding, the burden of proof to show the new charges to be reasonable falls upon the utility. *fn11 The Commission is directed to expedite these proceedings. *fn12 Pending an investigation, the Commission may suspend the operation of the schedule for up to five months. If the proceeding is not concluded at the end of the suspension period, the proposed rates go into effect, but the utility may be required to keep accounts so that amounts collected under the new rate schedule can be refunded to consumers. *fn13

The second avenue for review of rates and charges is set out in section 206 of the Federal Power Act. *fn14 This section empowers the Commission to find a rate or charge unreasonable at any time after appropriate hearing. In these hearings, the burden of proof is upon the complaining party, or upon FERC, to show that the challenged rates are unjust or unreasonable. *fn15 Section 206 empowers the Commission to determine the just and reasonable rate, but does not provide for suspension of challenged rates or for refund of payments made under a rate schedule found to be unlawful. *fn16

It is well settled that courts may not review the decision of the Commission to initiate proceedings under section 205. *fn17 A trilogy of cases in this circuit provides the basis for this conclusion. Municipal Light Boards v. Federal Power Commission held that the decision to suspend a rate filing and the length of the suspension period were not subject to judicial review. *fn18 Papago Tribal Utility Authority v. Federal Energy Regulatory Commission held that the decision to accept a rate filing was itself non-reviewable. *fn19 And in Delmarva Power & Light Co. v. Federal Energy Regulatory Commission, where the Commission accepted the rate schedule for filing and suspended the schedule for five months, we declined to review either decision. *fn20

While these cases address attempts to obtain review of the Commission's decision to accept or to suspend rates, their reasoning is equally applicable to a FERC decision to accept and not to suspend. *fn21 In Delmarva Power and Light the court summarized the doctrine of these cases by concluding that the reviewability of an agency decision hinges upon analysis of the "practical function and consequences" of judicial intervention. The three determinative factors in this analysis are "(1) the finality of the order signed, (2) the irreparability of injury to petitioner if review is refused, and (3) the degree to which review will invade a province reserved to agency discretion." *fn22 In light of the statutory scheme outlined above, *fn23 these factors dictate that we do not review the merits of the Commission's decision in the present case.

First, we note that the Commission's decision is not a final determination of the lawfulness of the filed rate schedule. *fn24 We do not interpret the Commission's acceptance of the rate schedule for filing or its refusal to suspend the rates to be a decision that the rates are just and reasonable. Rather, the Commission here decides only that it will not scrutinize this schedule in a section 205 proceeding. Indeed, the Commission's order of 23 December 1981 expressly indicated that acceptance "does not constitute approval" of the rates and "is without prejudice to any findings or orders which . . . may hereafter be made by the Commission." *fn25 Neither the Commission's action below nor our decision here has any effect upon a possible future determination as to the justness and reasonableness of the new rates. *fn26

Second, the Commission's decision works no irreparable injury on petitioners. It is true that petitioners might suffer various procedural disadvantages in having to proceed via a section 206 rather than a section 205 proceeding. They, rather than the utilities, will bear the burden of proof; and even after successfully meeting this burden, they may be unable to obtain the refunds which would have been available under section 205. *fn27 We cannot hold, however, that these detriments amount to the "irreparable injury" which would prompt us to review an agency decision otherwise unreviewable. Petitioners are "injured" by the Commission's action only in that they no longer have available to them the more generous remedies granted by section 205. But the statute establishes no right to these more generous provisions. Rather, the plain language of the Act places exclusively within the discretion of the agency the decision whether to institute proceedings under that section. *fn28 Moreover, as with the Interstate Commerce Act, "the statute is silent on what factors should guide the Commission's decision; . . . on the face of the statute there is simply 'no law to apply' in determining if the decision is correct." *fn29 The absence of standards by which to evaluate agency action militates strongly against judicial review. *fn30 Judicial review aimed at protecting petitioners from purported "injury" is thus foreclosed by the structure of the statute as well as its express language. *fn31 To hold that petitioners in this case have been irreparably injured by a purportedly faulty Commission decision would thus grant rights which Congress by plain language declined to create.

Finally, judicial review of the decision not to suspend rates would "create the hazard of forbidden judicial intrusion into the administrative domain." *fn32 As the Supreme Court has emphasized in reference to the ICC, the power to suspend rates is granted to the agency to preserve its jurisdiction in ratemaking decisions. *fn33 Judicial review of the decision to accept rates would subvert the exercise of the jurisdiction in several ways. First, in reviewing a decision not to suspend, courts must consider the reasonableness and lawfulness of the rates in advance of full administrative consideration. But there remains the possibility that the Commission will consider the substantive lawfulness of the rate schedule through a section 206 proceeding. Review of the decision not to suspend would thus lead to judicial consideration of issues which the Commission might face in the subsequent proceeding. *fn34 Courts would be making the ...

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