PG&E Corp. v. Fed. Energy Regulatory Comm'n (In re PG&E Corp.)

I. INTRODUCTION

In its May 1, 2019, Order Denying Rehearing ("the FERC Denial", the Federal Energy Regulatory Commission ("FERC") made two remarkable statements. First, it said:

NextEra Energy, Inc. v. Pac. Gas and Elec. Co., 167 FERC ¶ 61,096 (2019) at Para 13.

Second, it stated:

Id. at Para. 16.

The problem is that the first statement, while true, is completely contrary to the congressionally created authority of the bankruptcy court to approve rejection of nearly every kind of executory contract. This includes "run-of-the-mill" types, whatever that means, or the other kind, including power purchase agreements and others that implicate the public's interest, but excluding certain types not relevant here.

The second problem is that FERC, despite its denial, has chosen to interfere with bankruptcy courts' decisions. Without statutory or supreme court authority to support its position, it in fact "presumes to sit in judgment" and second-guess - no overrule - decisions of the bankruptcy court.

To deal with what it correctly identifies as unsettled law with different court interpretations (one circuit court, one district court and one bankruptcy court now on direct appeal to…