case number sixteen cash ten twenty three and now new england power traders generators association inc the titian or versus federal energy regulatory commission mr toys for the petitioner is going to respond morning morning mechanisms that challenge in this lawsuit is unjust and on reasonable within meaning of the federal power given that net his argument is based on a mathematical inevitability and is first now recognizes has been borne out by subsequent events in quebec shortage of power shortage that jacked up the real time energy prices and at the same time also jacked up the energy the big justice predicted we put that evidence before the commission commission at first i denying our complaint failed to recognize they didn't put that if mission for it and then later on i'm hearing said well you did put in some evidence of harm but you didn't commit another example of that harm and we think that given the record before the commission at that time all of the evidence that was submitted was submitted on our side and all pointed to the fact that this was not just unreasonable at that time and you can take a look at first order it's actual by fifty eight to five sixty one it's fairly brief it doesn't cite any particular evidence what it says is you know you put forth some evidence of a future prediction based on this historical analysis you've also suggested that you know you have this economist report but it's possible that prices could converge or it's possible that if you take a look at all of the revenues you receive that you know maybe this is not unjust and reasonable because maybe you're making own based on that evidence that was submitted and i think in an a number of occasions this court has actually reversed or vacated a work order and remanded in situations where  relied on and we think that in that circumstance where all of the evidence was on one side and in very important to your honor's i think that the fact that the this is not just an  dramatically the real time prices the addition of these actors and it's going to have is inevitable mathematical fact that no one really disputed now again first explanation was well if you take a look at all of the other all of the revenues you make maybe and then nobody and you know the first company had been the one that brought the challenge and then because it was now a different entity no one could bring bring the challenge i understand it says and city but i think it has to be interpreted or ought to be interpreted in a more flexible manner where you have essentially a party representing the interests of the entity before the commission again particularly in this circumstance where the intervene or the where one of the any views that raises a deck challenge is now before this court it seems that at a minimum given the really the the overall point is that given what happened in the complaint proceeding referred had a duty to determine that these rates were just and reasonable and failed to do so it simply said that's outside the scope of this proceeding go ahead you know brand complaint proceeding  argument is that given that this issue was brought before by the group of generators brought directly to the attention and had this direct an inevitable impact to pay this is not a situation where you tweak one dial and something you know totally unrelated happens on the road it's not a you know burden to determine the new just and reasonable rate by sort of punting on that issue and saying bring it up in a complaint proceeding rather than either i mean it has discretion to trucks or some proceedings but it could have for example set forth here in this specific issue with only part of the ball it could  strictly construed there are many cases of i'm sure we cited some in our brief but how the case strictly construed as the language of three thirteen i would also add to that as we noted in our brief particularly page thirty footnote three of the issues that the petitioners now press with regard to the tariff order this supposedly failure to meet the commission's own burden in addition to the full rate impact are in that they have made no party not their members not anyone else no one raise that in the terror proceeding saying you're failing to to fulfill your burden that step two of the two of six so any way around it that just was not raised and should cannot be considered this was a mathematical inevitability that was actually much of the gist of the commission's analysis of petitioners evidence in the complaint proceeding saying you came in with just a straight mathematical equation and said that's all you needed to do you didn't put it in context you didn't show that part of the the backward data but the convergence issue in particular you didn't address the impact that we expect these increased necessarily always the word used but that the effect in the real time prices would be expected to have an effect in the day ahead market the i assume had had actually noted that in its so called back cast that it had done that said day four thirty seven at the instigation of energy energy which is a member of nafta actually and the powerful had proposed this as an alternative to the pay for performance that's in this discussed in her one a one of the  fifteen to if you want your preferences the powerful transmittal which in turn references testimony put in by an expert from energy that explained one of the four justifications for raising these price cap was number three better encourage market participants to schedule in the days ahead market and pursue other hedging activities to limit and manage their exposure real time prices and their expert mr fuller discussed it in terms of smoothing out both revenues and costs to to encourage predictability the gist of this is that there was record evidence not only in the preceding that that raised these price caps to begin with but in the complaint preceding itself the commission was not just making up some economic theory that this might happen there were a number of parties including generators in new england that fully expected it to happen and actually proposed this measure in part to that it's in the commission said you come in with your complaint you just did the math against math and said that was the end of it you didn't even try to account for projections about what might happen under the new you know how this conversion might play out with regard to that the second he's doesn't that order doesn't quite have the kind of presidential presidential values that you know in order that had been fully but it not put out a fully challenged and reconsidered on rehearing might but in that case there same goes same expert that they use the first time came back with a very different testimony where you really in my view addressed the shortcomings that the commission had focused on in the orders under review he did try to account for different case than they did in the first complaint where the commission said you didn't show us what this math proves you don't didn't show us what the backward facing evidence suggested you didn't say is this a typical year or are these p r events happening i well i think with the commission said that the commission didn't reject the idea that the backward looking single year and it was only a single year of data the commission didn't say out of hand that's not enough it said you haven't even tried to explain  filed in march twenty fifth he they didn't say anything about had there been anything except december fourth in that period from december through february that's a third of the capacity here for that matter even though it predates the increased price caps we weren't told anything about what it's an odd story as if you're a freak event i just did allowed outside research on it apparently some guy drops small objects from a plane on to two extra high voltage transmission lines and took out a whole bunch of hydro from quebec so it it wasn't blast it wasn't a heat wave or a weather event it really was a freak thing i don't know if they even knew that when the primaries were being this that was a canadian investigation team leader but i and i but there had been peak energy rent adjustment triggering events in the past year for that the i s o had analyzed this but there was no evidence put into the record about whether those ten peak energy rent adjustment hours were typical or anomalous were they bunched together with a just explain what this data means main still not be enough maybe it will the commission doesn't know because generators very clearly said that this unfairly increases already on just one reasonable penalties by resources i think there was adequately preserves at that time and in fact commission said we acknowledge the sufficient inefficiency but essentially we'll deal with it in some other proceeding we're not going to do with it now number two my friend mentioned that there this was not a mathematical inevitability i think that's inconsistent with what the commission actually held below i think what the commission found was that there were that in the specific language the first actually found that i page j five sixty they said generators at put forward evidence showing that they may have to make significant p e i are adjustments to load and in other words they were they put forth evidence that we're going to have to pay these large rebates they just didn't put forward in their view enough evidence of how typical it was how often it was that sort of thing and in the concurrence the same thing that to the current commissioners found that we were a serious concerns we think in that circumstance your honor at a minimum what the commission should have done said for hearing if they thought that we had made a showing addition to what it actually did which was resolved on the pleadings itself so i think at a minimum are all the serious questions a rate of raised about the essential market malfunction there was a broken rule that first did not intend for this massive rebates fight to happen i think in that sense at the very least it should have used its expertise to gather more evidence rather than say come back in twenty months after you've lost you know millions and millions of dollars i think you look at the evidence of what actually ended up happening there was one hundred ninety three million dollars of pe