# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2008 Decided December 30, 2008

No. 07-1175

L OUISIANA P UBLIC S ERVICE C OMMISSION

, P ETITIONER

v.

F EDERAL E NERGY R EGULATORY C OMMISSION

, R ESPONDENT

A RKANSAS P UBLIC S ERVICE C OMMISSION

, ET AL

., I NTERVENORS

On Petition for Review of Orders of the Federal Energy Regulatory Commission

Michael R. Fontham argued the cause for petitioner.

With him on the briefs were Paul L. Zimmering , and Noel J.

Darce

.

Carol J. Banta , Attorney, Federal Energy Regulatory Commission, argued the cause fo r respondent. With her on

the brief were Cynthia A. Marlette , General Counsel, and

Robert H. Solomon , Solicitor.2

J. Wayne Anderson argued the cause for intervenors. On

the brief were Mary Woodford Cochran

, Paul Randolph Hightower

, Ted Joseph Thomas

, Clinton A. Vince

, Orlando E.

Vidal

, William S. Scherman , and Gregory W. Camet

. Emma

F. Hand entered an appearance.

Before: R OGERS , T ATEL , and K AVANAUGH

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge T ATEL

.

T ATEL

, Circuit Judge : Over the Louisiana Public Service Commission’s objection, the Fe deral Energy Regulatory Commission approved a new long- term allocation of powergenerating capacity among the affiliates of the Entergy system. In so doing, FERC interpreted the provision of the Entergy System Agreement that governs off-system sales as inapplicable to short-term oppor tunity sales. Aggrieved by FERC’s decision approving the long-term, intra-system allocations and upset at FERC’s interpretation regarding the short-term, off-system sales, the Louisian a Commission petitions for review on both issu es. Yet the only issue before us on which FERC actually took action was the approval of Entergy’s long-term allocations , making that the only issue we have jurisdiction to decide . Finding it easily resolved by

our standard of review , we deny the petition.

I.

Because we have dealt many times with the Entergy system and its predecessors, most recently in Louisiana

Public Service Commission v. FERC (“ Louisiana 2008 ”), 522 F.3d 378 (D.C. Cir. 2008), we desc ribe it here only briefly. Entergy is a multi-state affiliation of power companies that

share the costs and benefits of power generation. At all times relevant to this appeal, it consisted of five affiliates: Entergy3

Louisiana, Entergy Gulf St ates, Entergy New Orleans, Entergy Mississippi, and Enter gy Arkansas. The affiliation is governed by the Entergy System Agreement, and although that agreement creates an integrated system, it allots to each affiliate the primary responsibil ity for and benefit from the generation facilities in the a ffiliate’s jurisdiction. Because

these facilities run on different fuels, shifts in the relative price of coal, gas, and nuclear energy can create striking cost disparities among the affiliates. To balance such disparities, we have long viewed the System Agreement as requiring that affiliates share the costs of pow er generation in roughly equal proportion. See, e.g.

, Miss. Indus. v. FERC , 808 F.2d 1525, 1554–55 (D.C. Cir. 1987). The Entergy System has accomplished this rough equalization primarily through careful allocation of new generation capacity. As an “insurance policy” should long- term allocation plans fail to achieve proper cost-spreading, however, FERC recently adopted a “bandwidth remedy” that limits any relative cost discrepancies plus or minus 11 percent. Entergy Servs., Inc.

, 111 F.E.R.C. ¶ 61,311, at 62,356 (2005). We approved that remedy in Louisiana 2008 , 522 F.3d at 391.

Facing a complaint from New Orleans, which was bearing unusually high production costs, Entergy submitted to FERC a proposed reallocation of generating capacity. See Entergy Servs., Inc. (“ Opinion No. 485 ”), 116 F.E.R.C. ¶ 61,296, at 62,485 (2006). Under the proposed allocations, Entergy Arkansas and Entergy Gu lf States would “sell” their cheaper generation capacity to Entergy New Orleans and Entergy Louisiana, id. at 62,486 & nn.14–15, thereby allowing New Orleans to pass costs from its more expensive generators on to the now-unders upplied Entergy Gulf States. These paper transfers of power would lower costs for New

Orleans and Louisiana but raise costs for Gulf States. Representing Gulf States’s customers, the Louisiana4

Commission thus opposed the allocations as discriminatory. The same administrative law judge who presided over the extensive bandwidth proceedi ngs approved the allocations, Entergy Servs., Inc. (“ Initial Decision ”), 111 F.E.R.C. ¶ 63,077 (2005), and FERC affirmed that decision in relevant part, both on exceptions fr om the initial decision, Opinion No.

485 , 116 F.E.R.C. ¶ 61,296, and on petition for rehearing, Entergy Servs. Inc. (“ Opinion No. 485-A ”), 119 F.E.R.C. ¶ 61,019 (2007).

In the course of these proceedings, the Louisiana

Commission discovered that En tergy Arkansas had beenselling cheap energy off system through a series of monthlong opportunity transactions without offering the other Entergy affiliates first bite at those electrons. The Louisiana

Commission believed this a viol ation of section 3.05 of the System Agreement, which provides:

It is the long term goal of the Companies that each Company have its proporti onate share of Base Generating Units available to serve its customers either by ownership or purchase. Any Company which has generating capacity above its requirements, which desires to sell all or any portion of such excess generating capacity and associated energy, shall offer the right of first refusal for this capacity and associated energy to the other Companies under Service Schedule MSS-4 Unit

Power Purchase.

Entergy System Agreement § 3.05 (2000). Although forseveral reasons the ALJ thought that the short-term, offsystem sales were irrelevant to the long-term, intra-system allocation issue before him, he also doubted whether it would be sensible to apply this sect ion of the System Agreement to5

short-term opportunity sales at all. Initial Decision , 111 F.E.R.C. at 65,429–30. On exceptions, FERC agreed that any possible section 3.05 violation had nothing to do with the long-term allocation issue. But echoing the ALJ’s doubts,

FERC also said that “sectio n 3.05 was not triggered by the one-month capacity sales.” Opinion No. 485 , 116 F.E.R.C. at 62,505. Believing that FERC had au thorized the repeated sale of cheap energy off system, the Louisiana Commission pressed this issue on rehearing. There, FERC reaffirmed its view that any short-term sale violation had no import for the long-term allocation question actually before it, Opinion No.

485-A , 119 F.E.R.C. at 61,062–63, but this time it went on to explain in detail why sectio n 3.05 of the System Agreement just shouldn’t apply to short-term sales, id

.

Before us the Louisiana Commission gives this apparently ancillary short-term sale dispute pride of place, arguing it first and resisting any attempt to connect it to the long-term allocation issue on which Entergy initiated these FERC proceedings. As the Louisiana Commission sees it, “[t]he short term sale issue has substance independent of the resource allocation” because “FERC’s unnecessary holding on the point authorizes Entergy to sell cheap System resources” in a way that cau ses the Louisiana Commission’s constituents independent harm. Appellant’s Reply Br. 2.

Because we have no doubt that FERC resolved the long-term allocation issue, we consider it first, turning second to the question of whether we should co nsider the short-term sale

issue at all.

II.

Conceding that “minimizing differences in production costs is a valid goal of resource allocations among operating companies,” Appellant’s Reply Br. 12, the Louisiana Commission challenges the long- term allocations approved by6

FERC as ill-designed to serve th at end. It argues that these allocations merely inverted the positions of Entergy New Orleans and Entergy Gulf States, driving the former’s costs down by transferring them to the latter. It argues that FERC

never studied the likel y long-term effects of the allocation and that it unduly relied on the backstop provided by the bandwidth remedy. Ultimately, it says, the proof is in the production costs: following th e allocations Entergy New Orleans went from about 12 per cent above system average to about 1 percent below, whereas Entergy Gulf States went from about the average cost to about 8 percent above the

system average.

We review FERC’s treatment of this issue with great

deference. We affirm its orders unless arbitrary or capricious,

Louisiana 2008 , 522 F.3d at 391, and treat its factual findings as conclusive if supported by substantial evidence, 16 U.S.C. § 825 l (b). Where the subject of our review is, as here, a predictive judgment by FERC a bout the effects of a proposed remedy for undue discrepancies among operating companies,

our deference is at its zenith. See Louisiana 2008 , 522 F.3d at 393 (“We owe FERC great de ference in reviewing its selection of a remedy . . . .”); Envtl. Action, Inc. v. FERC , 939 F.2d 1057, 1064 (D.C. Cir. 1991) (“[I]t is within the scope of the agency’s expertise to make such a prediction about the market it regulates, and a reasonable prediction deserves our deference notwithstanding that there might also be another reasonable view.”).

Given this lenient standard of review, we find ourselves unconvinced by the Louisiana Commission’s arguments for second-guessing FERC’s judgment. Although the ALJ acknowledged an apparent tran sfer of costs between New Orleans and Gulf States, Initial Decision , 111 F.E.R.C. at 65,432, he found it impossible to at tribute the rise in Gulf7

States’s costs to the transfer alone. Indeed, the ALJ pointed to considerable record evidence in finding the data “inconsistent with the cause and effect correlation argued by [the Louisiana Commission].” Id . at 65,434. Among that

evidence was the fact that because of the size difference between the two entities a transfer of capacity creating a six percent fall in the costs for Ne w Orleans would create only a one percent rise in Gulf States’s costs, and vice versa. Id. at 65,432, 65,434. The ALJ concluded th at the evidence pointed to other causes that might have been contributing to a disproportionate rise in cost s for Gulf States, including steadily increasing prices for natural gas. Id. at 65,434. He

went on to note that Gulf States was slat ed for its own longterm allocations in the future and reasonably suggested that, to the extent these later allocations failed to remedy cost discrepancies persisting after th e allocations under review, the bandwidth remedy created in th e prior proceeding ensured a minimum level of rough equalization. Id . The ALJ also rejected the Louisiana Commi ssion’s alternativ e proposal as failing to address “the most important goal of reducing the disparity in relative produc tion costs among the Operating Companies.” Id. at 65,433. Thus, in light of the uncertainty regarding the source of Gulf St ates’s cost increases, the planned future allocations, a nd the backstop provided by the bandwidth remedy, the ALJ saw no reason “to order a further fine-tuning by reallocating long-term life-of-unit shares . . . to try perhaps to shift [Gulf Stat es’s] relative percentage down a percent or two.” Id. at 65,434. FERC twice affirmed that judgment, Opinion No. 485 , 116 F.E.R.C. at 62,504; Opinion

No. 485-A , 119 F.E.R.C. at 61,063–64, and without cause to question its reasonableness or its basis in record evidence, we

likewise affirm.8

III.

Although these proceedings bega n with Entergy’s request for approval of its long-term capacity reallocation, the

Louisiana Commission allocates the bulk of its briefing to challenging FERC’s interpretation of the System Agreement’s right of first refusal. It s eems the Louisiana Commission may have originally presented this argument as somehow relating to the long-term allocation i ssue, as the ALJ thought it necessary to expressly reject various reasons for connecting

them. See Initial Decision , 111 F.E.R.C. at 65,430. But it’s

hard to tell. The Louisian a Commission now completely rejects “[t]he efforts of FE RC and Entergy to connect the issues on appeal,” calling these efforts “nothing but a diversion,” Appellant’s Reply Br . 1, and urging us to reviewFERC’s interpretation of the System Agreement on the shortterm sales issue regardless of its disconnect from the longterm allocation dispute. To be sure, the Louisiana Commission’s argument regardi ng FERC’s interpretation of section 3.05 was aired before the agency, and FERC has strongly signaled its view of how it will likel y read that section in the future, Opinion No. 485-A , 119 F.E.R.C. at 61,062–63. Yet because we think it quite clear that FERC made no final decision on any cl aim for relief on the basis of a section 3.05 violation, we s till have nothing to review.

A party may invoke our jurisdiction only if “aggrieved by an order issued by the Commission,” 16 U.S.C. § 825 l (b), not to challenge agency dicta unrelated to the order actually entered in the particular case. See Am. Gas Ass’n v. FERC

, 912 F.2d 1496, 1520 (D.C. Cir. 1990) (denying review of FERC’s gratuitous statement of law where only injury was possible deference to this remark in future proceedings). Indeed, unless the party challenge s an actual FERC order, that party lacks the requisite injury to support Article III standing.

As we said in Sea-Land Service, Inc. v. Department of9

Transportation , 137 F.3d 640 (D.C. Cir. 1998), “mere precedential effect within an ag ency is not, alone, enough to create Article III standing, no matter how foreseeable the future litigation.” Id. at 648. Thus, the Louisiana

Commission cannot establish standing simply by claiming

that FERC apparently authorized future off-system opportunity sales by construing the System Agreement’s right of first refusal as failing to reach such sales in an unrelated proceeding. For us to have Article III jurisdiction, the

Louisiana Commission must instead point to some relief that FERC either granted or failed to grant in a proceeding where such relief was actually at issue.

The Louisiana Commission has given us no reason to believe that we are reviewing such a proceeding here. Entergy initiated this FERC docket to secure approval of its long-term allocations. Neither the Hearing Order listing the matters before the ALJ nor FERC’s summary of what it

decided mentions the short-term sale issue. Opinion No. 485

, 116 F.E.R.C. at 62,485. C ounsel for the Louisiana Commission admitted at oral argument that at their inception FERC’s proceedings concerned this issue not at all and that FERC had no need to pass upon it . Oral Arg. 3:06, 7:06. In response, FERC counsel freely conceded that FERC’s statements on the short-term sale issue amounted to nothing more than non-binding dicta—to be accepted or rejected by FERC as appropriate in a future docket where such sales are properly in dispute. Id . at 12:20. Accordi ngly, we conclude

that these statements are in f act dicta and do not preclude the Louisiana Commission from pressing this issue in a different proceeding. Under these circumstances, Article III of the Constitution allocates us no power of review. In this respect, then, the petition is dismissed; in all others, it is denied.

So ordered.