wholesale power resources unduly discriminatory due progress and the wholesale customers can and will enjoy this resource for orange work not because of the state of north carolina's contract in two thousand and eight so that took about three years so how is how is you're interested in contract possibly with with d is orangeburg paying more for energy right now than it would be if that joint dispatch agreement had been struck down the way you are requesting at you know dismissed as is moot because of the contract being i guess voluntarily terminated but perhaps your remedy is to when you begin the process of you know seeking bid says if if you don't receive the bid sit you believe that you otherwise would because of the  c ruling then you could initiate a petition at that point with her and then if work doesn't give you relief you could come to discord that's kind of the north carolina commission or any other court for relief so they disabled themselves from being able to come in and say we want to be able to serve the a guaranteed supply on for wholesale customers from their traditional resources regulated rates which are generally cost because rates and for town that we can have a competitive market and that'll discipline prices and that'll be a better way to deal with these issues than trying to to regulate where that's and major part of that was for the ship it's open access transmission requirements to make agreement to the should not be approved all lies the regulatory conditions of north carolina her change because the joint dispatch agreement is subject to those regulatory conditions and we're asking for regulations you have to challenge those within the north carolina court system what we can review is a federal commission that action and is the most that you could get here is a decision f part that would strike out any incorporation of those regulations in the joint dispatch agreement but not i don't know that for can issue an order that makes north carolina regulations themselves disappear in this the posture of this with the year stated deciding who got to be considered native loaded customers it seems certain in the in your argument in your brief in favor of standing you say that at first could could could redress your your that in order from this court could redress your injury because we could order fir to do something akin to what was done in that california public utility commissions case firk asked him about this when they stand up here but they don't respond to that in their brief other than to say that well we have discretion to act as we did in that california public utilities commission case and if we choose not to exercise that discretion  basically there's you know tough luck i guess is is but but i guess your argument would be that if they're withholding their exercise of discretion is arbitrary and capricious war is is not fulfilling their duty to ensure just unreasonable nondiscriminatory raids then we can compel them to exercise their discretion order two thousand in the way that we think is not permissible and goes well beyond what was intended in order two thousand ferkin the decision dealing with the joint dispatch agreement  it's states can determine who is entitle to native low treatment as they always have that statement by itself which is an isolated statement doesn't make any sense when order two thousand order to fire them they were talking about wholesale customers they were talking in terms of retail customers and states have never lawfully regulated wholesale contradicts supreme court decision in the new england polar case and their mahela new england power case was one where the state of new hampshire said we're going to keep our low cost power within the state of new hampshire and you can sell it outside the state supreme court ruled that that miley commerce clause and it's a state regulating interstate commerce and which is what's involved unduly discriminatory you have sounds like they can be duly discriminatory and that's ok so what is unduly discriminatory about a state deciding that what are a native load of folks said well you can go other places they didn't or all of that what the north carolina commission had done was a proper interpretation of the federal power that the who was permissible the use of them you know you're too late we're kind of faced with know orangeburg you're too late because you're no longer have a contract or you're too early because you don't have a contract to work you're not in the right place and start of being before a north lee it was was moot at that time in terms of that particular proceeding and we had other proceedings that we were pursuing so you know for talks about the orangeburg and gauged and the multi frustration is to next time if it gets a contract if it's not happy with the contract that's one needs to litigate it orangeburg voluntarily did withdraw from this contract hang on they say we're not going to be able to get the competition for contracts that we want as long as there's this albatross hanging around duke's net called them out carolina regulatory conditions so we're not even going to be able to get out o first of all let me just say that orangeburg council is not correct or about saying that you can and progress cannot will not be able to bid they will be able to bid to even the north carolina commission's own order said do can bid it just does it at the risk that possibly you can they want to you're going to have to eat the costs right that that's right and that's what i'm going to bet why would why on earth would they engage in a futile exercise like the couple who did everything the first time around when we go back for another another round your honor i think that george wilkins point there was what he was saying is that if they don't receive bids be careful trying to interpret what my point is no no that's right and that's why i'm saying what i think i understood but what i heard what i got from you it was what i was thinking myself and it was out of my own so i'll stop saying it as you state your honor i'll just say it myself my point is what i would have said on my own is that when it comes time to try to negotiate a new contract if orangeburg terms that people are bidding at incremental at average cost rates and only an incremental rates then they that's the time that they would have standing to challenge what are they challenging so we challenging the north carolina commission  rules in their carolina court trying to get there they're going to say we see we don't have parents are they going to show this home one would have been but for well they can be i think that they would be able to show that i think they would be able to show that for sure they in if duke is offering that service to others but not to them if that service exists i think that the case law does support that they would be able to challenge that at that time i do  are they going to introduce wants to do it maybe just doesn't want to have a contract with them maybe do because i got plenty of other contracts at the time or for whatever reason is and i'm interested i'm taking well if that doesn't mean that they're standing here though your honor that the what a joint dispatch agreement did here was approved something that has nothing it literally has no effect and i think as the as your owners were asking questions it was apparent you were i think understanding that even if the court did not what's occurred here but the question is firm has the authority obviously to determine whether a state utilities commissions action is unduly discriminatory  t and where the commission said where there's no real choice which is in north carolina a state commission hasn't always had the authority to require you to do sell its lowest cost power to native load native load does well and that's because in order eight i'm sorry this little statement here means that they have the authority to set interstate wholesale rates know they have the authority to require that bundle retail but bundled because in states where there is no retail choice the transmission in the sale or loop together so even a wholesale sale that uses retail transmit that bundled with a retail  said that it would no longer impose a great deal of tory a first regulatory obligation a wholesale requirement suppliers continue to serve their existing requirements customers which includes retail and wholesale customers beyond the end of the contract bundled transmission there wasn't but if the states are going to be really talking about interstate whole sale rates in that sense you just read to me i'm sorry how do we know we're talking about interstate wholesale rates sit and change and said but we will not also take jurisdiction over the contractually imposed contractually imposed does not affect the state missions authority to require of the utility to sell its lowest cost our native mode as it always has that system and that's just says states you can do it you're going to do with something that's quite in your wheel house state in state retail rates because that's now interpreted to mean actually that the seeds to state utility commissions the power to authorize interstate wholesale plan and operate their system and that's what the commission didn't didn't set aside in order aided it's only require an open access for wholesale sales where there is retail competition is no retail competition in north carolina therefore there is no in reviewing order eight said burke is perfectly fine not requiring that wholesale sales have that whole set bundled bundled states that it also require open access where there's no  retail where there's no retail options in states like north carolina that's new york versus fur going back to stand in for a second sure so  some commission six years to decide on one of these contracts isn't now exactly the right time for them to bring this challenge is there any question about imminence or rightness given that apparently it takes six years so if they want to start contracting now they have to build them six years lead time to seeking these contracts they may even be too late i mean are they going to go back six years contract when duke said we're not going to do it anymore no no do just say we will do it at at at incremental costs not it at the average cost that you want so you would have had that harm we tried to have a contract and you know at average cost  cost but right but that's where their injury was that they left they chose they left the to do contract with they could have continued with and as the north carolina court pointed out that contract would have gone from twenty eighteen so  new contract they would have had standing to challenge that they would they wouldn't have been moved and they would have been able to challenge it to the north carolina where i'm getting merits decision and the same thing would have miami now are they not injured by dispatch agreement that essentially has black the green list on the black list the green list of people who will get a good rate and that anyone who's not listed there is on will call the black list and you you will only be able to compete for the time but it happens often enough and six years is an awfully long time to me trying not to encourage folks to have to go there mandamus or that's a pretty extraordinary route and so really the only question is are they injured by the approval to try to snatch a grave i know they're not there because list bad deal list and so they can't compete on equal footing with those on the good deal list to get this interstate commerce contract for energy that something is right now they're on that list and that's hanging over their shoulders today right now they've got that status imposed upon them by this agreement and it's something that's going to prevent them from competing on the terms of they want to compete more this electrified that i'm not saying the right on the merits i'm just saying that's how we look at what's happened to them that's happening right now and ordinarily i would go that's six years down the line or three years down the line if you have to start three years in advance brightmoor about when has taken six years to the contract the contract was mooted out before the pirate story order petition was filed it was it was already with the contract no longer existed and that was it was six years of that i can explain your honor but that's not before i merits they would have looked and said wow this is been moot since we've done it so you were cases where we said someone doesn't have when there's a six year process and they're facing down on something they need to start three years on and fans that we just said it's not long that's what happens you've taken a year or two to issue your behavior in order but the problem is the man under the mandamus standard someone can't do that until crisis stage and that's back to sort of betting the farm right you have to wait you can't come in and go we're worried they're going to take three years or six years or simply you mandamus now and put him on a good schedule they've got wait until it's you know the eve of being too late i wouldn't want to defend something on mandamus that was for  five or six years on so that would be you know one or two years right missions busy and it has a lot of orders to issue but that's that's an awfully long time to just sit and then now try to use that to say wow a contract we voluntarily native load folks but also had a next section that said asked to these ten potential contractors you can never contract with them oh no not you can't ever you can contract with them but for those that when you need to when you challenge you're saying it and when it isn't what i would still say that when you challenge that you need to the right time to challenge that is when it actually actually affects you and that's when you try to get your next contract which again is not going to so it would ha right than everyone else but that's not the situation here here all it says is parties are deemed to have been served with a certain level certain price level of energy so it doesn't change at all what anyone under the contracts that that people are served under what their prices are stressed and it's an internal thing between these two entities that we're dealing that you serve these people this way we demonize sir people that way and then you exchange circumstance and this is the only thing i can see to your honor if that's all right at least i'll start there in this circumstance and i wish i had been clear earlier but for some reason i was quite nervous this morning and i don't know why it's not anyway if i can just say again here in the orders here that the north carolina commission had the authority and it cited order two thousand but there's also other cases they had the authority to require that that do serve believe it is a holding that i mean the commission didn't say those exact words but to me if the commission's view is they have the authority therefore they are not preempted i do i do read the orders that way and if there are additional cases in  commission has said this same thing about that where there is no retail choice the final rule doesn't affect the state commissions authority to require you to lety to do this new p j am companies and one of five first sixty one two five they reiterated the holding in order two thousand but earlier than these orders and earlier than that in excuse me after that san diego gas and electric which is california energy crisis proceeding at fir the commission said we recognize load serving energies use their lowest cost resources to serve native load and and points out that over the course of the proceeding parties had pointed that out since august two thousand one this is longstanding it's just a given it for  this is ok for states with our retail choice like north carolina to require this so even even if you are the facts customers in another state like only took away it's own regulatory requirement that entities continue to be served so we took that we would have had contracts to continue to do that so for example the drake dispatch agreement is a really good example of that  clear a contract saying it's fine for you to give these native of folks the lowest cost is that the same thing is saying it's fine and first washes his hands of it for you also as a consequence of that the charge higher rates for wholesale interstate contracts is that necessarily included in that other statement i believe i believe that it is but it rate maybe you have to get higher rate to interesting ones well this does you have to have that same rate this case is not about charging anybody rates this case is just about deeming that certain energy is ser someone trying to clarify whether when it talked about the dish and all authority are native low that necessarily meant they were addressing the preemption argument about hang on hang on once you start talking about  and that's what the concern that's really what's happened here and let me just see if i can understand your position and how this works it's one thing for the north carolina you till the commission to say that duke and other energy providers can charge the lowest rate to native load customers in north carolina in charge a higher rate to non native mode because in north carolina it seems to me it's a horse of a different color so to speak for north carolina utility commission to say to do this is how you can treat native load customers in south carolina in non native low coast murs in south carolina i think i understand what you're saying your honor and and work in order eight was saying and order two bundling in a state and that's a state's right to choose whether to unbundle or not and then the supreme court unless that determination by first that it did not have to require on bundling so that it can get a handle on the wholesale portion of the much like this one under which the lowest cost resources for the two companies would be deemed to have provided service for each company each other's native load so just like here in p j of interconnection one thirty in the brief is an industry term that generally refers to utilities existing customers whose power needs the utility is bound by franchise or contract to meet it's not geographic no it's not your hon their franchise regions include portions outside of the state and native load customers includes both wholesale and retail customers for whom a supplier has an obligation to plan an operating system and that's right in the commission regulations eighteen c f r section thirty three point three d four i and in order two thousand the commission recognized that as well that includes both wholesale and retail and it and that's just it's the retail choice not in terms of wholesale sales order it is provides for a nationwide competitive market and what is happening here this is that's being limited by the boundaries that first has allowed the state commission to to address do which was bid for the contract has an open access transmission turner duke has market based rates marketplace where it's for whatever a willing buyer and seller negotiate we're dealing with bilateral contracts you don't negotiate a contract with average system assume that the costs of these two subsidiaries are combined where there would rather than treating them separately as for his gun and supreme court to overturn the state of north carolina they're saying no north has how do we know it's unduly discriminatory if i think their theory is that no we allow this little bit of discrimination as part of this and for states that have no retail choice these obligations we allow them to have this special treatment for late of native load customers because they're in a different situation and so maybe you can call it discriminatory but it's not unduly discriminatory under eighty eight in two thousand can