FERC

Petitioners Montana Consumer Counsel, Public Citizen, Inc., Colorado Office of Consumer Counsel, Public Utility Law Project of New York, Inc., and the state attorneys general for Connecticut, Illinois, and Rhode Island seek review of a final order of Respondent the Federal Energy Regulatory Commission (“FERC”). Petitioners bring a facial challenge to the order, contending that the order violates FERC’s governing statutes. We must decide whether the market-based regulatory policy established by FERC’s order is permissible under the law. FERC asserts that it has improved on its prior regulatory policies by enhancing its up-front tests for market power and reinforcing its ongoing oversight of market-based rates. Petitioners contend that FERC has not done enough. We have jurisdiction to review final orders of FERC under 16 U.S.C. § 8251 (b) and we deny the petition.

I. Background

FERC’s statutory mandate is set forth in the Federal Power Act (“FPA”), 16 U.S.C. §§ 824 -824w. The FPA requires, and charges FERC with ensuring, that “[a]ll rates and charges made, demanded, or received” by power wholesalers be “just and reasonable.” 16 U.S.C. § 824d(a). All rates and charges for…