for more than eighty seven years the california public utilities commission based upon its state authority under the state constitution and public utilities code as protecting the consumers in the state of california from the monopoly power of the california lexus utilit because the federal power act explicitly preserves state jurisdiction over how to set the retail rates and the only way you can have preemption claim under federal power act for the rate setting by the retail rate jurisdiction the state commission is if there's conflict preemption and conflict preemption requires catholic some between a federal tariff a federal regulation a federal order or something a federal statute that there's a conflict between fiji and he has not been able to point to any such federal statute many years ago that because the states decide retail rate making they will not decide at the first level how to pay us to the wholesale power costs so the four first decisions they have been briefed all favor of the state regulation over how power costs are decided at the retail level teaching is you know it's up to any of those cases but the federal agency itself is on the side of the state and how the retail rates are prate and there is no conflict between the federal government or the st and congress in the federal power act in a connection like in power case is very clear on this the legislative history the federal power act congress went to great lengths to states trying to protect state jurisdiction over the setting of retail rates we cite that in is up to the state how those costs are passed through there is no basis for conflict prevention there's nothing of substance to this case and preemption basis and therefore what really is going on is state law issues which are barred by penn hearst the issues we're whether courtliness a bar and we have it focused on the level of intrusiveness of this case which is far different from the horizon case where they didn't seek to street strip the state of regulatory powers it was just how the states for something other telecommunications the only provide for concurrent recovery of wholesale power costs in the monthly bills the customers of the utility pay the state has never been required to do that in the eighty seven years that we have been regulating state retail rates and  been the time period of the six or seven months that there was a split up of cost of peach meat instead of a forty percent rate increase probably the largest increase we did in our history for electric utility rates it would have been more like a four hundred percent increase th out a lot of businesses people on fixed income that couldn't afford bills and yet we would only be required to according to peaches complaint and paragraph fifty three concurrently pass through the first improve cost immediately without any  then i just want to understand exactly what their claim is and why you think this is intruding into the state regulatory area as i understand anyway alter the whole celebrate charges based on the fact that the charge and the cost of energy was going sky high at that time as ongoing proceedings to look about refunds for the whole and  which you are required to make sure that the energy companies which you know are required to provide the energy are getting reimbursed for their costs under the filed rate doctrine if the state says what fergus approved isn't reasonable it said as long as you've given legal fact to the raid on file with the first it doesn't have to be immediately require recovered because that's all the father a doctor requires that you give positive effect and don't challenge what fergie has done confusion on the part of my learned opponent on that score p d need under the deregulatory scheme implemented by the california public utilities commission was required to buy one hundred percent of its power there were for file tariffs and federally regulated will self prices during the california energy crisis from june two thousand through the first quarter of two thousand and one also prices skyrocketed to as high as one thousand failure teaching he has pleaded federal preemption claims alleging that this shortfall between its federally regulated wholesale costs and its state regulated retail revenues question is a violation of the filed rate doct r father a doctor has been a part of our federal law for over fifty years and it holds very clearly that the states while retaining jurisdiction to regulate retail rates in doing so must allow you to lease for federally of the parents under horizon all that is required is a straightforward inquiry into whether the plaintiff has alleged the traditional components of an ex parte to young clearly first that estate officer has acted in violation of federal selling retail rates to conform those rates to federal law what p g needs interpretation of federal law are now granted the parties disagree about whether the pc's accounting order does or does not comply with state federal stand instantaneously increased by statement about allowing p g need to collect its under collected cost experienced during the whole federally regulated rates and a father of a different application of the father a doctrine precludes seeking damages from a seller under a first filed tariff but that is not the application that's issued before the honor but those proceedings are not yet close they are ongoing we have just finished an extended period of discovery and there may be further hearings on the matter is not finally resolved before the honor i do not for two reasons first i believe that under hawaiian telephone this court has read the first provision of such as thirteen forty two used subsection one quite narrowly and has said that we haven't heard about this yet this morning the johnson act also requires bars a claim only where the order which is challenge does not interfere with the commerce cl where the state commissions orders interfere with interstate commerce to the extent that they constitute an attempt to regulate matters of interstate commerce which congress has lodged exclusively with the federal power commission which is now for precisely jurisdiction is not necessary to get ensure meaningful review the johnson act allows at a minimum the preemption claim to go forward we submit that it allows all of the claims to proceed because the complaint alleges an interference with interstate commerce but this is not a case where determining the johnson act issue would mean that this court would not have to reach eleventh amendment issues that's essentially the holding of marriage at that pendant exercised where a consideration of a question of subject matter jurisdiction would allow that would be dispositive in terms of whether the court had to reach the other issues present in the appeal that's not the case now the entirely separate issues and disposition of the johnson actor should just not mean that the eleventh amendment issue is thereby mooted that was the case in meredith that is not the case in this matter for that reason we forward in for rising that was a claim by arising alleging that order of the state public service commission violated the telecommunications act and it was a challenge brought under ex parte young just as young and ongoing urging ongoing violation of federal law by state officers and seeking prospective relief the claim was allowed to proceed past the past the pleading stage to an analysis of  example where the plaintiffs such to completely divest the state's authority to tax revenues revenues derived from operations on indian tribal lands that claim was allowed to with federal law in its making process this case is no more intrusive than the relief sought in duke energy where the governor's very powers to commandeer contracts under the emergency power rising now like duke energy we're being stripped of two critical areas of our regulatory powers duke energy pointed out the example that it was only one single contract the governor had commandeered but if a whole general area under the governor's emergency powers like the supply of electricity was removed in a complaint or sought relief in the complaint then that would rise to korti lien type of intrusiveness we are being watched losing the ability to look at other revenue sources available jeffrey decision the fifth circuit in rochester guess electric in the second circuit all are opening brief of how important it is to look at other revenue sources available to utility p g news complaint would not allow us to do that we also lose the ability to stabilize r we can't decide and we've lost control over the overall retail level if wholesale power plus increase and yes to be a concurrent increase in rates the state is losing control to protect the consumers pure and simple it is not just one single incident but a general obligation an affirmative obligation to acquire concurrent recovery of all wholesale power costs that was the challenge in paragraph fifty three of the complaint and paragraph ninety five were indicted for not having timely recovery of dismiss stage of what was the interference with interstate commerce just because there was an effect on interstate commerce is not what interferes with interstate commerce means in the johnson act and then this disc controlling in this case the public utilities commission versus united fuel case which counsel for the  apply finally you cannot argue that congress meant for field preemption of retail rate making in the federal power act when connecticut light and power for three pages in the us supreme court cites legislative history left to the states to decide that can't possibly be field preemption thank you right now your honor we are looking at the screen of cost recovery and i'm going proceedings because we are concerned about restoring the utilities to financial health and even in november of seventy two thousand and two we lifted a condition and sole basis that we needed to restore utilities recovered all of its wholesale power costs to run the p c has numerous ongoing proceedings involving california retail rate making and the issues of the financial problems of the utilities caused by this flare up in  wholesale power and the effect it had on their liquidity and their ability to recover even their standard costs so i'm stranded cost issue which is not implicated by the fall rate doctrine we have ongoing proceedings to look at that issue but we have decided also have an alternate plan to get ph in the out of bankruptcy and for purposes of our alternate plan and we have waived the eleventh amendment for that purpose in the bankruptcy court so that there could be a binding decision to get peace in our bankruptcy under our plan and that we would have