California, ex rel Lockyer v. Federal Energy Regulatory Commission

MEMORANDUM ***

Petitioners the State of California and the Northern California Power Agency (NCPA) appeal the Federal Energy Regulatory Commission’s approval of a corporate reorganization by certain Pacific Gas & Electric Company subsidiaries. The petitioners argue that the Commission failed to give them due process and failed properly to consider the public interest as required by the Federal Power Act. We reject the petitioners’ contentions.

At the outset, we note that, though the issue is not free from doubt, the petitioners have shown sufficient “actual or imminent” injury caused by the Commission’s action to possess standing under the Constitution’s Article III. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992). However, we reject the petitioners’ arguments on the merits.

Regardless of whether the Commission gave the petitioners adequate notice and opportunity for hearing before its original January 12, 2001 orders, the Commission later remedied any alleged procedural defect by considering whatever evidence and arguments petitioners offered in their petitions for rehearing and their motions to intervene. We have held that the…