to whether it is possible to foul as we violate a federal law and yet implement law the district court decision in this case assumes that it is however the plain meaning when dictionary a tolerant tuit of conclusion that congress gave exclusive authority to state courts to determine what st rules mean and whether they are complied with in substance and to relegate to this to the federal courts and to fork itself and a question policing to procedures that happen at the state level applying up plain language meaning of what congress actually side in the role is and consistent with every other court decision and what ferguson term protection requires of the court to reject or a court's promise and reverse like to offset from the electricity it although i purchase from utility foreseeing that utilities would attempt to undermine that type of competition to their monopoly and the fact the state unregulated utilities to comply and congress authorized utility customers such as my clients in this case who have generation to file their own action and ok so so that so does the word the word discriminates against customers a sort of a legal term of art bryant woman passes because i'm wondering i mean it seems to me i mean that the base case here is that you don't like the rates but i think it's more than that drugs it's not that we don't like the rates now that the rates charged more intentionally are targeted to charge more specifically to those customers who have their own generation ok now is it ever pie is it ever appropriate in your world view for a huge military or to charge more to someone cost of service and pricing policies as your design and you have to make sure that whatever fall out of that would apply equally to another customer with the same you think characteristics regardless of wh far i also far we're both paying the same rate no judge carson gets fancy in heat but is a solar panel and he is going to get credit for the generating credits generating power he theoretically will get credits against his payments for the power he utilize correct not so his own power from the solar panels and as i understand the net metering he's getting some credit for that is that somehow i think that's what judge lewis era was asking is there an os seven that against the extra the the utility determines what the rate applies to let me back up the the choice of net metering is not proscribed by federal law so that choice that states make on their own home you get credit when you are pushing out electricity from solar panels against the bill for when you're taking electricity from the utility is that correct in some net metering ok then aerials depending on the state law of the local law how about how about this i have my own solar panels on my roof and i'm pushing power out into the system and you're having to buy it from me the ultimate effect is that i'm going to pay you out of my pocket less over time because somehow i hear you're having to buy electricity for me when i'm not using it all and sometimes i'm actually buying electricity from you correct ok now problem here is telling you what the problem is you want to back up just jump in with the problem the problem in the complaint regardless of whether you push any electricity into the grid or not or whether you consume all of it behind will you that that is an additional charge that no matter what amount of electricity you influx right that you get a bill for your going to have your flat charge for your solar panel i understand  fee is no matter how much you use because that that additional charge you're paying more for your lexus well i understand that but yours but your argument to us is that for a group the bits charging eight feet of flat fee well turning in getting us back to what we're here on which is jurisdiction as i understand your position or whether or not the rule adopted by farming in is discriminatory therefore violating the st rules is a federal question and under two hundred and ten age to be there is jurisdiction to review whether a federal cause of action to time it's to be allows the federal court to force the requirements of to ten have and there are and i think your argument is that judge turk or its interpretation hello may it please the court i am kristin kelly mccullough appearing on behalf of bakaly city of farmington mexico the only issue on appeal in this case is jurisdiction it is not whether there can be simultaneous forum when you're challenging the employer implementation of the requirements and you're bringing the action against a utility or qualified facility  and you are a state regulatory a full authority or a non regulated utility isn't that what we fall under here they can bring this action in federal court under the plain language no i don't believe that they can you're on and on and your argument is the reason they can't is because implementation means nothing more then they went through the motions to adopt something no matter how far that something is from what for requires not exactly so appellant plaintiffs claim here requires a fact based post implementation inquiry into how the substantive requirements of purple worm that it necessarily questions the data the assumptions the calculations policies and rate as i used by non regulated electric utility in developing and adopting its rates for qualifying substantive requirements where in a trip a st requires for to prescribe rules for the encouragement of small power production and where for its prescribed rules and or a provide for just unreasonable in the public interest and not statute for the state court to have the final word in what the st rules the federal rules require and that just seems to turn it on my head and no other circuit is seen in that way to that spring court case and adopted and clarified those three ways that states and implement and meet the implementation requirement under section two hundred and ten dollars under that under letter with the district court and get it under your argument it seems to me that all the state has to do is is make a good faith effort to incorporate the for the than to act consistent with the and that is that i disagree with you only insofar as section two hundred and ten g b is where important with respect to the or procedural and gave an explicit example of what would be to violate the implementation obligation under section two tena and it would be if a state or non regulated electric utility failed to provide notice or an opportunity for public hearing as required under section two hundred and ten dollars and they said even all of the procedural challenges would be directly addressed in the proper judicial form not for so those are the only procedural challenges that wor where i agree that there is that there will be a surfeit split but i think that one already exists the cases relied upon that are cited to the d c circuit court of appeals are all taken out of context each one of those did not address the jurisdictional issues here those addressed whether or not the purpose in force that allowed for direct challenges to further declaratory orders and the purpose to go directly to the court of appeals and bypass implementation challenge could be limited and that was a reasonable interpretation could be limited to the procedural aspects but our research group said that they wanted to get to the underlying substance  as well because it was not the all of the discretion the wide latitude that burke recognized was given to the states under a purple did not allow for them to centrally cherry pick what it would i implemented and it appropriate to look at whether it was properly or meaningfully implement that's right and that's the problem with following that and that decision i think is aptly demonstrated distinguish in any way the difference between the board implement cromwell gate i think it depends on the context but i agree with generally that there might be a difference between those two if they think the concern in following the what the district court here district court found or stiction to hear claims because there was a broad ruling issued in the state order and however on appeal in the th circuit they said that  workers were to be treated as applying the rules to the individual petitioners and overturned the district court but the same reasoning in order to find that the order was an as subject to implementation similarly the accidental case also found that there would be federal jurisdiction over a review of an order and so that there's a there's already a circuit dollars policy statement by for because i would submit to the court that none of those socor pounds holes interpretation that to ten is limited to a procedural stops impact i point specifically says moreover the commission's authority under this subsection extends to situations where the state regulatory authorities are not regulated electric utilities or lives to have completed the implementation process but have promulgated regulations which are inconsistent discriminatory charge for a small power producers who have solar and i guess in implementing the rule required by the statute the city of farmington had to consider today is one of them was whether the rates were just in a reasonable that's one of the things they had to be working on right but that is an additional criteria in addition to the non discriminatory right but yes no i agree and then the next thing they had to do with that to try to do it in a nondiscriminatory way and you had at at bottom i mean had they come up with had they gone seven through this process and not decided to gain your clients went with a surcharge or whatever you want to call it we wouldn't be here right i mean if there was not you know tory rape we wouldn't be here i mean so what you're your name and their position is well wait cal it's not discriminatory we calculated that that was part of the calculation to determine that the rates were fair and reasonable all in that they paid for their fair share of the infrastructure and all these different things and it seems to me that that you have a rate case that at the bottom here and i mean you're not suggesting that it's the federal court's job to police all the rates are you know i mean that's a state function under the statute right and stephanie has paid function in the st instance to set the rates and i agree with that and  through what does that mean in practice and you know i just submit that's the merits and i'm happy to get to the merits we want to get to the merits of the question here is can we can summarize the argument as a judge sure carson asked me to jump off a bridge or orders me to jump off a bridge d either d have to make a good faith effort to find the bridge or if i'm to implement