Montana Consumer Counsel v. Federal Energy Regulatory Commission

MEMORANDUM *

Montana Consumer Counsel and Montana Public Service Commission (collectively, “Petitioners”) and Intervenor REC Silicon petition for review from the orders of the Federal Energy Regulatory Commission (“FERC”), granting PPL Montana LLC, PPL Colstrip I LLC, and PPL Col-strip II LLC (collectively, “PPL”) market-based rate authority. We have jurisdiction to review final orders of FERC pursuant to the Federal Powers Act § 313(b), codified at 16 U.S.C. § 8251 (b), and the Administrative Procedure Act, 5 U.S.C. § 702 . 1 FERC’s determination of whether a supplier’s rates are “just and reasonable” as required by 16 U.S.C. § 824d(a) is “afford[ed] great deference[,]” Morgan Stanley Capital Group, Inc. v. Public Utility District No. 1 of Snohomish County, — U.S. —, 128 S.Ct. 2733, 2738 , 171 L.Ed.2d 607 (2008). After careful review, we hold that FERC’s policy choices and methods of calculation are not arbitrary and capricious and its factual conclusions are supported by substantial evidence. We therefore affirm FERC’s orders.

1. Petitioners challenge FERC’s application of the “snapshot in time” approach, maintaining that its application in this case effectively removed…