State Water Contractors v. Federal Energy Regulatory Commission

MEMORANDUM **

1. When a rate or an aspect of a rate that has been previously approved by FERC is later challenged, the complainant has the burden of showing that it is unlawful. See 16 U.S.C. § 824e(b), FPA § 206. The “flat” transmission rate challenged by petitioners was not a feature newly introduced by Amendment 27 to the ISO Tariff. Rather, the concept of the flat rate had already been approved by FERC. Pac. Gas & Elec. Co., 81 FERC ¶ 61,122 at 61,504 (1997); Cal. Indep. Sys. Operator Corp., 106 FERC ¶ 63,026 at 65,268-69 (2004), rev’d in part on other grounds, Cal. Indep. Sys. Operator Corp., 109 FERC *399 If 61,301 at 62,468 (2004). Therefore, FERC properly allocated to petitioners the burden of proving that the flat rate is unlawful.

2. FERC’s approval of the flat transmission rate as just, reasonable and not unduly discriminatory and its rejection of petitioners’ contention that time-dependent rates are required is supported by substantial evidence. See Port of Seattle v. PERC, 499 F.3d 1016, 1026 (9th Cir.2007). 3. FERC’s approval of the flat transmission rate and its rejection of petitioners’ contention that time-dependent rates are required is not arbitrary and…