and makes repeated references to the case as unique or highly unusual now it's conceptually permissible to have an agency want to opt decision but it does raise the suspicion that the decision is temporizing rather than fully and as a matter of fact i was just going to lead to the confirmation of the suspicion here that the commission dead a one hundred and eighty dollars degree change in position in the orders on review based on the same  reconsider you know why you got a problem we do that all the time i mean it we hate when we make a mistake but that's exactly why you have read hearings we've done i mean i left when i read this i've gotten burned as i'm i have my colleagues who make mistakes you look at a record and you swear you got it right you publish it and you say then you get a petition we're hearing rehearing is oh my god we really screw that one up and you redo it on the same record the say i mean the one thing i want to make clear here is what you're suggesting doesn't at least to this judge suggest anything that's horrible it suggests exactly what we ought to be do i think the one thing though that it is is clear here is not just that they change their mind but they change their mind without any reference to the previous decision they had made so it's one thing to change their mind and say look as that when the agency says taking the same record right you're going to reconsider right r t this is it isn't that enough i understand supreme court cases that talk about well you have to acknowledge a change in your position to have to tell us why except and my question is i understand the nature of those cases but i don't know that i read them quite the way you do in terms of saying that the agency and you know i mean i counsel i'm not really an unfair characterization they clearly were explaining what preceded this and what happened here it's a difference between solution based for a liability as opposed to stability they put it in that that even i am in lord knows i don't sit around dealing with stability reliability every day but i got what they got and it was very clear to me that they were making it clear to someone like me who might judge and say look we've put it in the wrong box and this is a really unusual case and that's the one thing that seems absolutely clear here is that the mistake was a mistake it was an honest to god and state they put it in the wrong frame and i don't know how you can doubt that and they made a very very clear what happened and they made it very clear why they had to change i don't think there's any confusion well let me tell you what i think and i understand your point your honor there was an explanation as to what they were doing but what i was as against what they did but now you want to i got it now like i say i'm not someone who does this every day but i clearly understood what they were said they were going to be substantial benefits from this project right i mean i can give you opinion i've written where that's what i thought st time and then we really heard it and i had to kind of eat crow and say well you know that was wrong but your honor i'm sure that you do that as a rational decision maker that is not what for did here for good not say they never sat there are not substantial benefits to these agencies they he do to to affirm the transmission operators decision and again we have to back up a little bit the transmission operators of the ones that propose transmission cost allocations that's our job is the transmission operate in askance not st job to propose that it's not the court's job across it's our job and ferk has to affirm that if they find that there are substantial benefits to the project commensurate with the cost per pound to add in they said we still affirm that that is correct but we found out that in this situation where we're talking about for stability is not reliability it doesn't work the friends aren't org i'm sorry they didn't i'm sorry  ay did say yes we think stability is a different situation what they did not say is we found substantial benefits and now we find there aren't substantial benefits that it would i get at the let they never said it was wrong they never  case that with respect to the commission is not the right standard that the commission cannot so i think what they were saying is their basic premise of order one thousand dollars is cost causation that's what that's the foundation and they were saying that they missed the boat on cost causation the way they initially set it up in this situation they will walk them maybe a little bit and maybe tiny bits of benefit here or there they weren't suggesting there are no benefits they were saying the cost causation allocation was so far off that in this situation we are obliged to do change i don't know how i could have gotten that listening to you i'm wondering now whether i was well let me put it let me put it this way and i certainly don't suggest anyone's delusional but it does appear i have to change somebody's mind here so i'm going to try to do that a suspect for his i can't they and i click in the in the in the april causation cos cause they if they it's correct what if it's correct evans correct and if they think it's not correct what they have to do is come back and say we said there were significant benefits to the project but we were wrong there are not significant sixteen then we never hear about the two thousand and sixteen order gann it's not discussed its findings are dense cost its findings are go over a tire and they just go on to something else and say well you know we could have done something that was a little better look that has passed and not in other words i need to be clear on your procedural point when an agency said this for announces it is granting reconsideration at as though nothing happened before and come up with what all of this suggests is a new way of looking at the record yeah i think that's correct and i think the analogy i would use and i understand the points that you're making which is when the agency's in the same proceeding that's a little bit different from looking at prior precedent i would think of it more kind of the way universal camera looks at it when chance that you know that was a case th made a decision and then the commission manta decision and that was you know how you look at that in the end the court makes clear as i think you're suggesting the agency can change its mind the agency can have a final decision that's all fine but the court does have to take  i think that's what that case that he has they have to take into account that you had to and minister of law made findings and those are in the record and they have to be dealt with and that i think is the answer to your question which is sure they can change their mind sure they can come a different conclusion but they can't just ignore the fact that an april th and they came to the opposite conclusion and they made a findings in vs very case that there were substantial benefits from this project and then again confused there was also a dissent in the original opinion which helps the frame so there's a very strong dissent in the st opinion framing it there's a petition for rehearing that's what ferk is acting against or p say gee we made a mistake they have a petition for rehearing which they're responding to which says you made a mistake and then they're finding it is soley relying on the  rehearing which said the st disposition was wrong and they are now saying it was wrong they agree they made the critical finding in response to a petition for rehearing if they had just walked in and there was no petition a hearing and they just said oh it's a man who can have a new opinion and there's no frame or no framework whatsoever and they just issued something maybe i can understand you but you really are not being fair and characterizing there was a lot of fighting i mean you're taking it so out of context it's not fair there was a huge battle the overarching agencies weighing in they have their white paper both sides were fighting like crazy for two years everyone disagreed was strong concerns about what was going on and then there's a petition for rehearing and fork response to it when something i'm sorry that was my computer and so that's what i want you to understand why i'm not getting it and then you're creating something that's the the fiction if there was no petition three hearing that i as a judge i would say yeah that's strange i know how about an agency or court could get out of that bind but there was one year there's a dissent and then a petition  additional finding substantial benefits from the project which was never expressly addressed or overturned is is it in which you have counsel wait a minute that is just wrong ferg made a finding in it new order which says here is what we are concluding on the same record which is an absolutely inconsistent with what they initially said that clearly saying they were wrong initially they said in the nd opinion what we said before is wrong it doesn't work in this context yes but i think when i went to the point i'm trying to make is that i don't think ferk explanation works because st was not free on rehearing to simply say we have a new math that we think might be better than the st math that they were not all are saying they're saying what we did initially was wrong right that's the key point that could be it could be a will fight over what they replace it with but i don't understand you challenging that they they know that we're lee said what was initially done was wrong yeah i just look at the finding the finding is there yes but but i don't think  finding is what they needed under their section to all six earned because i was saying under wos sex they cannot simply find that we have a special circumstance here where we think this new approach would be better and that the st one is not right they have to find specifically that there are that the benefits are not command sure at this question or the project but they found that there were significant don't understand the benefits question is this that the the original order and twenty six team was framed around a particular set of assumptions about what the relevant benefits were because the relevant benefits had to do with flow and then relevant field of benefits and now we're talking about a different kind of benefits that we now understand is what's more apis one it's a stability related problem and so therefore you know i don't know that you have to explicitly say you know and that when we're talking about substantial benefits before it was a different frame of benefits now we understand that their stability related benefits and instability related benefits is not commensurate anymore to assign it all to dell dell  i think you're right that that they said there could be a different way of looking or there is a different way of looking at the benefits when you're in a stability context if you go back and look i mean and i think you're sort of suggesting that we kind of have  to infer what was going on because they never say here is the finding we made here is why we're contradicting that finding and i guess i was more troubled by that and you know certainly seems judge edwards is because he was able to discern the path  goes but it seems to me the batsmen more than sort of technical are formalistic problem in this case because we as they transmission orders have the right to present this as long as it passes muster under the cost causation test and st finding of these substantial benefits because no one is denying this energy goes to delaware and maryland they get the benefit of this is nothing at all like the i c c case where illinois is paying for something that's in new jersey are out in the east part of the country this is going right there but what they so they made that finding of benefits and that finding of benefits if it isn't up to meet the commensurate benefits test means that they have to accept our allocation proposal in order to overturn it they have to find that it's not commensurate and they did as i understand and i agree they did find it was not commensurate but the problem is in finding it wasn't commensurate they didn't deal with their prior finding that there were substantial benefits or and there was a lot of record evidence about the substantial benefits here the delmarva as a importer of power that it had transmission constraints that most of its energy comes from connections the north all those findings were in there that this is a benefit and so the problem is  think not that they didn't make a finding that this new you know stability deviation method you know might not be proper it's not enough for them to find that the new one has to be proper they have to find the old one is improper they did find the old one was improper as judge edwards no it's but they didn't take into account the record they didn't take into account their prior findings and all of the evidence that supported those prior findings that there were substantial benefits to delmarva yes maybe in a stability context there might be benefits to other people and if you look you know it's not in the commission's order but if you go root around in the technical transcript that mistrial and or cited two you this doesn't capture all the beneficiaries but the point for our purposes is solution based effects does capture the user beneficiaries and that's enough and it's particularly and often playing out in the context of  extensive effort to grapple with the record to look at what the commission had not discussed in two thousand and sixteen and to arrive at the correct answer that the proper way to measure benefits of a stability project is not to follow the flow of electrons to w benefits knowing what the rules of the road are in advance capture somebody important thing is and i'm looking at what the commission has said incorrectly and what they're saying here is there's no evidence to support the contention that the that the put that the project selection was or wasn't correct so it's hard to know exactly what the commission was thinking there there is evidence in the record th effective option for solving the stability problem what well one thousand choirs is that is not that they that p j and select the least expensive or the easiest project  changed method in two thousand and eighteen isn't correct in its view but that it has no concern that this change will adversely affect those affected contrary to the predictability issue no issue but principle on which or one thousand dollars is found  i know your brief you say order one thousand leaves open the method just hasn't principles all right but i didn't see anything in the commission's decision itself about that i just wanted to be clear because probably more familiar with this that not in a way that is roughly commensurate with one another if i'm understanding your honour's concern correctly it's that the commission arrived at the signing following the selection of project and following what was intended to be an x and allocation mind are the concerns that are addressed in my question matters that would come up later in commission proceedings namely when it reconsiders the submission inch i didn't want to set it in the whole idea was i get to know what the rules of the road are in advance so i proceed on that basis and i submit this proposal to the commission on terror successor then the commission says we have decided for excellent reasons that we want to adopt a different framework and that framework makes much more sense and it's consistent with a statutory directive and if this is going to app am i just caught you know it but before the commission and i just didn't see it ever handed that's all and so again your honor the commission's overarching responsibility is to ensure that rates are just and reasonable orders and order one thousand shared a goal the departure from the read approved in the one thousand compliance filing is certainly not with the parties were necessarily expecting but we're still dealing with the same project and in addition to the complaint orders on review here there was a powerful of finding there was a parallel case under federal power act section two of five that allocated the dollars specifically so while while the cost allocation in an x and it was spelled out ex ante in terms of this is what you can reasonably expect in terms of boiling it down to dollars that requires a separate co approval on a separate track and both both of those proceedings leave for room as he or for the commission to take just to look at the overall picture and say you know this doesn't work and which is also consistent with the statue and also in furthering the goal of just and reasonable rates this is not i would say this is not necessarily an optimal way sue establish expectations and to allocate costs under under the brought under the broad theories established in order one thousand and implemented in the last filings but in service of the statute that's what was required here i known we would end up in this place that's not what i'm understanding my understanding is that the commission is simply said they made a finding here that opposing counsel has been arguing about that the benefits were not counsel is raise if if the commission is correct and they are correct they are saying in this frame we missed it it's not that there are no benefits there are benefits and they may even be more than a little bit but one thousand dollars says benefits have to be commensurate with costs and they fixed that they said in this framed situation we were wrong in suggesting that now and i want to make sure i'm correct i don't see any viable reliance interests where and i would would add that it is i view it as consistent with ordered one thousand dollars get the cost allocation right even if that has to be even if it has to be done as it was here which was in a way that was somewhat different from what the parties would have thought at the time the project was chosen i would also add you know again this is this is clear in the record p j which is the independent transmission operator chose the project it's not that the it is not that the the initial cause allocation was not effective and instability setting and that further proceedings were necessary to identify a replacement rate and as the courts and those further proceedings were held in the form of a paper hearing and as the court has already observed the outcome of the benefits that was used in order one thousand compliance and used in this case the riginal were one thing the original flow based method was not appropriate to a stability project sant rule that people would that was easily administer of all easily known to the parties and that would avoid litigation over cost allocation by people who are unhappy with the decision and so  and i think much of what judge edward says it's correct but the reliance here was i think as mis conceded we knew we were going to have this rule in place we do this rule was going to apply and basically even out  there's no question there are benefits going to marvel and they put as judge edward snowden even be more than the sum benefits that they've been trying to minimize it as being if in fact there are substantial benefits than the solution based the fa does meet the commensurate benefit test and perks finding to the contrary because it did not consider that fact and did not consider its prior finding is just not supported yes they made the finding but it was not proper for them to make that finding without considering and specifically addressing their prior finding that they were substantial benefits and the reason that's important is because if in fact the salute based effects as close enough here we as the transmission owner had the right to rely on the fact that that was the rule of mat was going to have applied in all cases and we were not going to be faced with a decision where somebody unhappy with that decision after the fact was going to be able to come in and overturn the decision in other words if you have a rule that's going to you know work out over time and these are benefits over time you know the other advantage this whole idea also  the compliance order we're not looking at the violation we're not looking at you know this is a stability violation and this is the reason that we're putting in the project we're looking at it who is using the project and who is using the project over time and over time that will work out in the transmission owners recognize that where it will not work out is if the commission comes dan after the fact and says well in this particular case we've got one we might like a little bat express lee finding that this isn't the st one wasn't permissible but we're going to change that upsets the whole system and it upsets the whole idea of an x and a system and that's the one thing that i think is good rogers know berg never dealt with that argument for never explained why it's ruling wasn't going to upset this whole ex ante system that they put in place thank you you know it