# Unite d States Court of Appe als

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Arg ued Nove mber 12, 2021 Dec ided J anuar y 28, 2022

No. 20-1389

C O G E N TR I X E N E R G Y P O W E R M A N A G E M E N T , L L C A

N D V I S TR A C O R P ., P E TI TI O N E R S

v.

F E D E R A L E N E R

G Y R E G U L A TO R Y C O M M I S S I O N , R E S P O N D E

N TS

N E W E N G L

A N D S TA TE S C O M M I TT E E O N E L E C TR

I C I TY , I N C ., I N TE R V E N O R

On Petition for Review of O rder s of the F eder al Ener g y

Reg ulatory

Commi ssion

Christ opher R. Jones arg ued the cause for petitioners. Wit h him on the briefs wer e Miles H. Kiger and Jessica Harris Miller

. Nicholas M. Gladd enter ed an a ppear ance

.

Matthew J. Glover
, Attorney
, Fe dera l Energ y R egu latory Commi ssion, arg ued the cause for responde nt. Wit h him on the brief wer e Matt

h e w R. Christ iansen
, Gene ral Counsel, Robert H. Solomon
, S o l icitor, and Beth G. Pace lla
, Deputy Solicitor. Anand R. Viswanathan , Attorney
, enter ed an a ppear ance

.2

Be fore : S R

I N I V A S A N , Chief Judge
, K

A TS A S , Circuit Judge
, and R A N D O L P H , Senior Circuit Judge

. Opinion for the Co u rt fi led by Senior Circuit Judge R A N D O L P H

.

R A N D O L P H , Sen ior Circuit Judge : Coge ntrix Energ y Power Manag ement, L L C and Vistra Corp. own elec tric g ener ation fac iliti es i n Ne w Eng land. Their petition for judicial revie w i s direc ted at the Fe dera l Energ y Reg ulatory Commi ssion’s order s aff ecting their fac iliti es. ISO New England Inc.
, 171 FERC ¶ 61,160 (2020) (“

Initial Order ”), on reh’g
, 172 FERC ¶ 61,251 (2020) (“ Rehe aring Or der ”)

. Electric g ener ation fac iliti es in this are a rec eive pay

ment for t heir service s throug h formula

ra t es established by I SO New Eng land I nc.’s open acc es s transmission t ar i ff (the “I SO New Eng land tariff ”). The 1 Commi ssion’s orders approved Schedule 17, an amendment to the I SO New Eng land tariff

. Schedule 17 establi s h ed a new

rec overy mecha

nism for costs incurre d by cer tain elec tric
g ener ation and transmission fac iliti es to comply with mandatory reliability standards the Commi ssion had approve d.

The Commi ssion ruled that Coge ntrix and Vistra could use Schedule 1 7 to rec over only costs incurre d afte r they filed a cost-base d rate with the Commi ssion pursuant to Fe dera l Power Act (“F PA”) § 205, 16 U.S.C. § 824d, and the Commi ssion had
approve d the rate

. The Commi ssion rea soned that the filed rate doctrine and i ts corollar y , the rule ag ainst retroa ctive
rate making , limit ed re cover y to prospective c osts.

I SO New Engl and is a re gi ona l tr ans m issi on or ga niza ti on that 1

co or dinat es el ec tr ic it

y tr ans m is si on in New

Engla nd and who se ta

ri ff
go ve rns re co ve ry of tr ans m is si on ra te s. Emer a Me

. v. FERC
, 854 F.3d 9, 16 (D.C. Cir . 201 7).3

I

.

A.

Congr ess adde d e le ctric g rid reliability to the Commi ssion’s
reg ulatory

responsibilities in the Electricity Modernization Act of 2005, Pub. L

. No. 109-58, tit. XI I
, 119 Stat. 941 (2005). The 2 Act cre ated FP A § 215, 16 U.S.C. § 824 o , which g ives the Commi ssion the power to “adopt and enfor ce mandatory technica l reliability standards for fac iliti es that make up the national ener g y g rid.” New Y ork v. FERC
, 783 F.3 d 946, 950 (2d Cir. 2015). Congr ess provided the Commi s s i o n wi th this authority in order to enhanc e the reliability of the elec tric g rid afte r a la rg e-sc ale blac kout in the northeaster n United States in summer 2003. Id.

Section 215 does not g ive the Commi ssion authority to write mandatory reliability standards. I nstead, the Commi ssion
may ce rtify a non-g overnme ntal org anization as the “Elec tric Reliability Org anization” to write and propose the standards. 16 U.S.C. § 824 o (c)
, (d). The C o m m i s s ion may approve such standards if the Commi ssion finds that the st an d ards are “just,

rea sonable, not unduly discriminatory or pref ere ntial, and in the public interest.” Id. § 824 o (d)( 2). The North Americ an Electric Re li ability Corporation has been the cer tified Electric Reliability Org anization since 2006. N. Am. Elec. Reliability Corp
., 1 16 FERC ¶ 61,062 (2006); Fe d. Energ y Reg ul. Comm’n, Reliability Primer 34–35 (2020).

I n 2013, the Commi ss i o n ap p roved a new set of critica l infrastruct ure protec tion reliability standards the Corporation proposed. Version 5 Criti cal In frastructure Protection

The Ele ct ri ci ty Mo der

niza ti on Act is p ar t of the Energ y Pol ic y 2 Act of 200 5, Pu b. L. No . 109

- 58, 1 19 Stat. 594 (2005 ).4

Reliability Standards , 145 FERC ¶ 61,160 (2013) (“ Reliability Standards ”), on clarification & reh’g
, 146 FERC ¶ 61,188 (2014) (“ Reliability Standards Clarif ication Order ”). These new standards require sy stem opera tors like I SO New Eng land to de signa te the sy stem’s g ener ation and tra nsmissi on fac iliti es

as l o w- , medium-, or high- impact, based on the fac iliti es’ rela tive importance to the reliable opera tion of the elec tric g rid. Reliability Standa r d

s , at PP. 2, 41. All fac iliti es must comply with the low-impact reliability standards. Id. at P. 2. Fa cilities design at ed as medium- or high- impact must comply with additional reliability standards. Id. M ed i u m- and high-impac t fac iliti es had to comply with the new standards by April 1, 2016. Reliability Standards C larifi cation Order , at P. 7.

B.

I SO New Eng land started desig nating transmission an d
g ener ation fac iliti es as medium-impact fac iliti es in 2 013 and 2014, respe ctively

. Those critica l fac iliti es beg an to incur costs 3
to comply with the st andar ds. Coge ntrix
, Vistra, and other critica l f acility owner s commence d neg otiations with I SO N ew Eng land reg arding compensa tion for those compl iance costs. Those discussions resulted in Schedule 17.

Schedule 17 amends the I SO New Eng land tariff to include

a cost-base d rec overy mecha nism for expe n s es that critica l fac ility owner s incur to comply with the new standards. A fac ility may rec over cost s u n d er Schedule 17 “only to the extent” that it satisfies four conditions. Schedule 17 § 2.2(A)
, J .A. 61. First, the costs must be “incur red

. . . during the period in which the subject fa ci lity is desig nated as [a] [] Critical

L ik e the par

ti es , w e use “cri ti ca l fa ci li ti es ” to re fe r to el ec tr ic 3
ge ner at io n and tr ans m is si on fa ci li ti es that ar e des ig nate d by I SO New Engl and as m edium

- im

pac t fa ci li ti es

.5

Fa cility ” by I SO New Eng land. Id. § 2 .2(A)( i). Second, the critica l fac i l i ty owner must specify a cost rec overy period and the costs must have been paid during that period

. Id. § 2

. 2(A)( ii). Third, the costs must be “pre sented by the [] Critical Fa cility Owner in a Section 205 filing and approve d by the Comm i s s i o n.” Id. § 2.2(A)( iii). Four th, the costs must “satisfy all other conditions fo r re covery , as set forth in this Schedule 17.” Id. § 2.2(A)( iv).

On J anuar

y 6, 2020, I SO New Eng land filed Schedule 17 with the C ommissi on with a requested effe cti v e d ate of Marc h 6, 2020. The Commi ssion had conce rns about the temporal

4
scope of cost rec overy permitted by Schedule 17 § 2.2(A)( i), so the Commi ssion filed a defic iency letter. I n the letter, the C ommissi on asked I SO New Eng land whether it “intends t o allow the rec overy of costs incurr ed prior to the reque sted eff ective date” of Schedule 17 and, i f s o, to “explain how this
cost rec overy mecha

nism would be consistent with the filed rate doctrine and the rule ag ainst retroa ctive rate making .” J .A. 132.

I SO New Eng land responde d that Schedule 17 § 2.2(A)( i) “does not addre ss the rec overy of [m andator y reliabili ty costs] incurre d prior to [ S ch edule 17’s] reque sted eff ective date of Marc h 6, 2020.” Id. at 135. I SO New E n gl an d explained that the critica l fac ility owner s bear the burden in their i n d i v idual FP A § 205 filings to “demonstra te that the costs proposed fo r

rec overy

. . . are consistent with the filed rat e d o ctrine and the rule a g ainst retroa ctive ra temaking .” Id. at 134.

The C o m mission there afte r approve d Schedule 17. Pursuant to the filed rate doctrine and the rule ag ainst retroa ctive
rate making
, the Commi ssion limit ed rec overy t o “t hose costs

A n ew ra te ca nnot bec om e ope ra ti ve until si xty day s af te r it is 4 fi le d wi th the Com

m is si on. 16 U.S.C. § 82 4d(d).6

incu rr ed o n or afte r the eff ective date of the [critical fac ility

owner ’s] rele vant individual FPA section 205 filing.” Initial Order
, at P. 27. The C o mmissi on clar ified on rehe aring that critica l fac ility owners m ay i nclude in their section 205 filings the “undepr ecia ted” portion of “s u ch past capital expenditures
to comply with the

. . . requirem en t s .” Rehe aring Order
, at P. 22.

I I

.

The filed r ate doctrine for bids util ities from cha

rg ing r ates other than those proper ly filed with the Commi ssion. Towns of Concord, N

o r wood, & W

ellesley v. FERC
, 955 F.2d 67, 71 (D.C. Cir. 1992) (citing Ark. La. Gas Co. v. Hall
, 453 U.S. 571, 577 (1981))

. A “corollary ” to the fil ed rate doctrin e is the rule
aga i n s t re t ro ac t i v e ra t em ak i n g, wh i ch “ p r o h i b i t s t h e Commi ssion from adjusting curr ent rate s to make up for a ut i l i t y ’s over- or undercollection in prior periods.” Id. at 71 & n.2.

A.

Coge ntrix and Vistra arg u e t h at Schedule 17 “expressly permits” rec overy of previously paid costs to comply with the mandatory reliability

standards. Petitioners’ Br

. 30. We ag ree wit h t h e Commi ssion that Schedule 17 “expressly permits” no such thing

.

As discussed a

b o v e , Sc hedule 17 has four conditions critica l fac ility owner s must satisfy in order to rec over co m pliance
costs. T h e fi rst and third conditions are rele vant here : costs must be “incur

red

. . . during the p er i o d i n which the subject fac ility is desig nated as [a] [] Critical Fa cility
, ” an d m ust be “pre sented by the [ ]C ritical Fa cility in a S ection 205 filing and
ap proved by the Commi ssion.” Schedule 17 § 2.2(A)( i), (i i i ),7

J .A. 61.

Coge ntrix and Vistra arg ue that the only temporal limit Schedule 17 place s on cost rec overy is that the costs are incurre d when a fac ility is desig nated as a medium-impact fac ility by I SO New Eng land. The Commi ssion disag ree d. I t rea d Schedule 17
to neither “addr ess whether fac ility owner s may seek to rec over cost s incurre d prior to the eff ective date of the rele vant individual FPA section 205 filing” nor “explicitly state that only
prospec tive costs (i.e., costs from the eff ective date of the individual FPA section 205 filings g oin g fo rwa rd) are elig ible for rec overy .” Rehe aring Ord er , at PP. 5, 26. I n other words, the Commi ssion found that Section 17 does not addre ss whether
costs incurre d befor e the eff ective date of the critica l fac ility ’s FPA § 205 filing can be rec overe d.

Coge ntrix and Vistra ignor e Schedule 17’s third require ment, namely that rec overy is lim ited to costs prese nted in a facility ’s i n d i v i d ual FPA § 205 filing and approve d by the Commi ssion. The Commission rea sonably conclude d that this require ment prese rves the filed rate doctrine and the rule ag ainst
retroa ctive rate making
, beca use the Commi ssion may not acc ept

a rate filed under FPA § 205 that would violate those doctrines. Initial Order
, at P. 27 (citing Towns of Concord
, 955 F.2d at 71 n.2, 75); see also Old Dominion Elec. Coop. v. FERC
, 892 F.3d 1223, 1226–27 (D.C. Ci r. 2 0 18). Given the tariff ’s third require ment for cost rec overy , we cannot say that S ch ed u l e 17 expressly permits rec over y o f mandatory reliability costs incurre d prior to a f

acility ’s individual FPA § 205 filing

. 5

As the Com

m is si on poi nts out , I SO New Engl and “in it s ow n 5 fi li ng ac kno w le dge d ta

ri ff am big uity as to the ti m ing of co st

re co ve ry .” Res pondent’s Br. 25. At ora l arg um ent, Cog entr ix and Vis tr a as se rt ed that af

te r the Com

m is si on fi le d it s def

ic ie ncy le tt er , they “had a go od- fa it

h as sum ptio n and bas is to co nclude ” that they8

B.

Coge ntrix and Vistra next contend that the Commi s s i on’s application of the filed rate doctrine and the rule ag ainst
retroa ctive rate making to Schedule 17 is contra ry to FPA § 219. See 5 U.S.C. § 706(2)( A). The y point to section 219(b)(4)(A ), whi ch d i re cts the Commi ssion to cre ate a rule that “allow[s]

rec overy of

. . . all prudently incurre d costs nece ssary to comply wi t h m a n d a t o r y r e l i a b i l i t y s t an d ar d s

. ” 1 6 U. S

. C

. 6 § 824s(b)(4) (A). I n their view, if the costs were “prude ntly incurre d,” section 219(b)( 4)(A) imposes no temporal limit ation

on rec overy

of said costs.

But as Coge ntrix and Vistra rec og nize, sec tion 219(d) imposes two limit ations on the rec overy of mandatory reliability
costs. Specifica lly
, the statute require s that “[a]ll rate s approve d under the rules ado p t ed p u rsuant to this section .

. . are subject
to the requirem ents of sections 824d [FPA § 205] and 824e [FPA § 206] of this title that all rate s, char ges , terms, and

“co uld co nvi nce [I SO New Engl and] to inc lu d e pas t co st s” in Sche dule 17. Ora l Arg

. 37:2–6. I SO New Engl and did not ado pt thei r vi ew , and to ld the Com

m is si on that “Schedule 17 doe s not addre ss the

re co ve ry of [m andat ory re li abil it y co st s] incur

re d prio r to

. . . Ma

rc h 6, 20 20,” the r eques te d e ff ec ti ve date of Sche dule 17. J.A. 1 35. The fa ct that I SO New Engl and did not think that Sche dule 17 — w hich is
par t of the I SO’s ow

n ta ri ff — unam

big uous ly cov er ed prio r co st s st ro ngl y co unsel s ag ai nst the con tr ar y “un am big uous ” re ading Cog entr ix and Vis tr a no w adv anc e.

Pursua nt to this st at

uto ry dire ct iv e, the Com

m is si on ado pted 18 6 C.F.R. § 35.3 5(f)
, w hich pro vi des that the “Com m is si on w il l appro ve

re co ve ry of prudentl y

- incur re d co st s nec es sa

ry to co m

ply w it h th e

m andat or y re li abil it

y st andar ds pursua

nt to se ct io n 215 o f the Fede ra l Pow er Act
, p rov id ed that the pro pos ed ra te s ar e just and re as ona ble and not und uly disc ri m inat or

y or pref er enti al .”9

conditions be just and rea sonable and not unduly discriminatory

or pref ere ntial.” Id. § 824 s(d). The Commi ssion deter mined that when FPA § 219(b)( 4)(A) and 219(d) are rea d toge ther, the
statute direc ts the Commi ssion to allow for rec overy of “‘a ll’ [m andator

y reliability ] costs when consistent with FPA sec tion 205,” which “ include[s] the prohibi tion ag ainst retroa ctive ra te

rec overy .” Rehe aring Order , at P. 15.

Coge ntrix and Vistra challeng e that rea ding by invoking the
neg ati v e-impl ication canon — the “expression of one thing implies the exclusion of others ( expre ss i o unius est exc lusio alterius ).” Antonin Scalia & Br y an A. Gar

ner, R eading Law: The Interpretation of L eg a l Texts 107 (2012). They arg ue that the filed rate doctrine and the rule ag ainst retroa ctive rate making do not derive from the require ments in FPA § 205(a) and (b) that
rate s be just and rea sonable and not unduly discriminatory

. See 16 U.S.C. § 824d(a) –(b). Rather, Coge ntrix and Vistra maintain that the doctrines orig inate from FPA § 205(c)
, (d), an d (e)

. Those respe ctive sections require that public utilit y rate s be filed with the Commi ssion and available for p ublic inspection; that utilit ies provide six ty day s’ notice of a chang e in rate s; and that the Commi ssion has the authority to hold a hear i n g about the leg ality of a rate and suspend the rate while its leg ality is decide d. See id. § 824d(c) –(e)

.

We have consistently held t hat t he expre ssio unius “ca

non has littl e forc e in the ad m inistrative setting” to establish

u n am biguous intent under step one of Chevron U.S.A. Inc. v. NRDC
, 467 U.S. 837 (1984). Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp.
, 940 F.2d 685, 694 (D.C. Cir. 1991); s ee N a t’l Ass’n of Mfrs. v. SEC
, 800 F.3d 518, 550 (D.C. Cir. 2015). And

we are not persua ded that the canon d o es t he work that Coge ntrix and Vistra would li k e h ere

. This court and the Supreme Court have rec og nized repe atedly that th e fi led rate doctrine and the rule ag ainst retroa ctive ra t em aking play an10

important role in helping the Commi ssion fulfill its statutory responsibility to e nsure that reg ulated entities char g e only rate s that are just and rea sonable. See Towns of Concord
, 955 F.2d at 71 (citing Ark. La. Gas Co. , 453 U.S. at 577–78).

The rea soning g oes something like this: the Fe dera l Power Act “ves t s the Fe dera l Energ y Reg ulatory Commi ssion with responsibi l i t y for ensuring that all rate s char g ed by utilit ies within the Commi ssion’s jurisdiction are ‘just and rea sonable.’” Id. at 68 (quoting 16 U.S.C. § 824d(a) ). Utiliti es must file all
rate s with the Commi ssion. 16 U.S.C. § 824d(c)

. When a utilit y seeks to char g e a differ ent rate , the u t i l i t y must file a new rate schedule with the Commi ssion; no rate change “s h all be made

. . . except afte r six ty day s’ notice to the Commi ssion and to the public.” Id. § 824d(d).

The Comm i ssion could not ensure that rate s are just and

rea sonable if the rate s are n o t o n file with the Commi ssion for

a period of time befor e the rate s g o into eff ect. There fore
, FPA § 205(c) and (d), 16 U.S.C. § 824d(c) and (d) — two of the provisions from which Coge ntrix and Vistra asser t the filed rate doctrine and the rule agai n s t retroa ctive rate making derive

— require that “re g ulated utilit ies

. . . file with the Commi ssion and keep open for public inspection a sched u l e of the rate s they intend to c harg e rate pay ers.” Old Dominion
, 892 F.3d at 1226. Those pro v i sions “ef

fec tuate” the Commi ssion’s statutory responsibility to ensure that all rate s are just and rea sonable. Id. ;

s ee also Mont.-Dak

ota Utils. Co. v. Nw. Pub. Serv. Co.
, 3 4 1 U. S. 246, 251 (1951) (“[T]he rig ht to a rea sonable rate is the rig ht to the rate which the Commi ssion files or fix es

. . ..”). FPA § 219’s require ment that mandatory reliability costs be “just and

rea sonable” there fore incorporates the filed rate doctrine and the rule ag ainst retroa ctive rat emaking

. Congr ess did not exclude the Commi ssion’s application of the doctrines for costs

rec overe d under F PA § 219.11

This rea ding of FPA § 219 acc ords with the Commi ssion’s implementing reg

ulation, 18 C.F.R. § 35.35. L ike FPA § 219, the re gu lation specifie s that the Commi ssion will “appr ove

rec overy of prudently -incurred costs nece ssary to comply with the mand atory reliability standards

. . . provided that the proposed rate s are jus t and rea sonable and not unduly discriminatory or pref

ere ntial.” 18 C.F.R. § 35.35(f)

. But in addition t o t hese substantive require ments, the reg ulation also incorp o rate s the proce dural filing rules in FPA § 205(c) to (e)

. See id. § 35.35(c) (sec tion 219 rate s are “subjec t to th e f i ling require ments of sections 205 and 206 of the Fe dera l Powe r Act and to the substantive require ments of s ec t ions 205 and 206” (empha ses added) ). T h e reg ulation thus incorporates the filed
rate doctrine and the rule aga i n s t retroa ctive rate making by appl y i n g all of section 205’s require ments to any rate filings seek i n g rec overy for costs to comply with the mandatory reliability standards.

C.

Coge ntrix and Vist ra a lso maintain that the Commi ssion’s order s are arbitra

ry and capr icious beca

use t h e C ommissi on misapplied the rule ag ainst retroa ctive rate making here

. See 5 U.S.C. § 706(2)( A). Their arg ument is that the rule ag ainst
retroa ctive rate making does not apply beca use there was no rate

on file for medium-impact reliability costs prior to Schedule 17.

True, the Commi ssion ha s explained tha t “[f]or ther e to be
retroa ctive ra t em aking or a violation of the filed rate doctrine

. . . there must first be a rate on file.” Niagara Mohawk Power Corp.
, 111 FERC ¶ 61,120, at P. 46 (2005). But that does not help Coge ntrix and Vistra. As the Commi ssion explained, Coge ntrix and Vist ra are attempting to collect ad d itional rate s “for a service that has alre ady been rende red,” which would be a violation of t h e rule ag ainst retroa ctive12

rate making

. Rehe aring Order
, at P. 20. Coge ntri x and Vistra had a rate on file for their g ener ation fac iliti es in t h e I SO New Eng land Tarif

f, and thei r customers and the service provided

wer e the same befor e and afte r the Commi ssion approve d Schedule 17. Id. at P. 19. Schedule 17 was thus a chang ed rate , not a new r ate. Id.

Coge ntrix and Vist ra arg ue that the Commi ssion’s order s

are contra ry to the Commi ssion’s ty

pical use of historical costs to set curr ent rate s. See, e.g. , PJM Interconne cti o n , LLC
, 172 FERC ¶ 61,054, at P. 58 (2020) (“Lon gs t anding prac tice, Commi ssion and court prec edent allow the use of rea son ab l y repr esenta tive histor i c t es t period data to cra ft rate s, terms and conditions of

service .”). B ut in this proce eding
, Coge ntrix and Vistra wer e n o t l o o k ing to set a new rate by using historical
costs t o es t i mate future costs. Rather, they wer e seeking to

rec over historical costs g oing back t o 2 0 1 4 throug h an adjustment to curr ent transmission rate s. Petitioners’ Br

. 19–20 (noting that critica l fac ilit y owner s have been harme d beca use they “incur

red approximately $300,000 to $2.1 milli on in initial costs” and “appr ox imately $700,000 - $5.3 m i llion in compliance costs throug h 2019”). The rule ag ainst retroa ctive 7

The Com m is si on’s brie f use s the exa m ple of a so ft

w ar e li ce nse 7

— one Sche dule 17- quali fy ing co st — to expla in the pro blem w it h the

ar gum ents of

Cog entr ix and Vis tr a:

Cog entr ix [a n d Vis tr a] do[ ] not se ek to use the co st of a

so ft w ar e li ce nse

. . . that w as use d w hen pro vi ding se rv ic e in the pas t to es ti mat e the co st of a so ft w ar e li ce nse fo r a futur e per io d. Rat

her
, [t hey ] se ek [] to cha

rg e future

ra te pay er s fo r the co st of that p as t so ft w ar e li ce nse , an at te m pt to re co ve r fo r under- co ll ec ti on fo r se rv ic e pro vi ded in the pas t.

Res pondent’s Br. 29.13

rate making prohibits such cost rec overy , beca use it would cause

an i n cr ease in “cur

rent rate s to make up for a utilit y ’s

. . . underc ollection in prior periods.” Towns of Concord
, 955 F.2d
at 71 n.2. Under the FPA, the “Commissi on has no authority

. . . t o allow retroa ctive chang e in the rate s char g ed to

consu m er s .” Old Dominion
, 892 F.3d at 1226. Coge ntrix and Vistra rece ived t ransmission rate s under the I SO New Eng land tariff during the re l ev an t period. That the companies failed to

rec over mandatory reliability costs does not allow an exception to the rule a g ainst retroa ctive ra temaking

. Coge ntrix and Vistra al so seek to benef it from this exception to the fi l ed rate doctrine: “The filed rate doctrine simply does not extend to case s in which buy ers are on adequate

n o t i ce that resolution of some specific issue may cause a l at er adjustment to the rate being collecte d at the ti m e of service .” Nat. Gas Clea r i n g h ouse v. FERC
, 965 F.2d 1066, 1075 (D.C. Cir. 1992) (per cu riam). This is not beca use notice “re lieve[s] the Commi ssion from the prohibition ag ainst retroa ctive
ratem ak i n g,” but that “it chang es what would be purely
retroa ctive rate making into a f u n c ti onally prospec tive proce ss by placing the rele vant audience on notice at the outset that rate s being promul gated are provisional only and subject to later revision.” Columbia Gas Transmissi on Corp. v. FERC
, 895 F.2d 791, 797 ( D.C. Cir. 1990).

The notice ex ception “per mits the filing of tariff

s that provide a formula for calc ulating rate s, rathe r than a specific rate number.” W

. Deptford Energy

, LLC v. FERC , 766 F.3d 10, 22 (D.C. Ci r. 2014). The exception also applies “whe n judicial invalidation of Commi ssion decisions has resulted in retroa ctive chang es in rate s.” Id.

Coge ntrix and Vistra want the exception expanded to cover14

statutes and reg ulations that permit cost reco v er y

. They point 8
out that FPA § 219 direc ts t h e Commi ssion to “allow recove ry of

. . . all prudently incurre d costs nece ssary t o co mply with mandat ory reliability standards,” 16 U.S.C. § 824s(b)(4) (A), and that 18 C.F.R. § 35.35(f) provides the same. But all rate chang es s ee k ing to rec over costs must be filed with the Commi ssion. 16 U.S.C. § 824d(d); Old Dominion
, 892 F.3d at 1232. For t h is rea son, statements on a website or in pleading s i n litigation do not come within the notice exception. See Ol d Dominion
, 892 F.3d at 1232; W

. Deptford Energy
, 766 F.3d at 23–24. Perhaps statutes and reg ulations ar e d iffer ent, perha ps not. L ike the Commi ssion, we do not decide that here

. See Rehe aring Order
, at P. 17. As shown above, neither section 219

nor its implementing reg ulation provides that rate s may be adjusted re troac tively

.

Acc ording to Coge ntrix and Vistra, t h e Commi ssion’s ruling that Schedule 17 does n ot provide adequate notice is
contra ry to NSTAR Electric & Gas Corp. v. FERC
, 481 F.3d 794 (D.C. Cir. 2007). N S TAR aff

irmed the Commi ssion’s deter mination that notice was met by Marke t R u l e 17, which provided that tariff rate s would apply only if I SO New Eng land and the elect ri city g ener ator did not later file a separ ate neg otiated ag ree ment for rec overy of g ener ators’ opera ting costs duri n g cong estion periods. Id. at 801. Coge ntrix and Vistra contend that Schedule 17 is “identica l” to Marke t Rule 17. Petitioners’ Br

. 37. T h e C o mmissi on, howeve r, rea sonably explained that Schedule 17 “provide d notice only of a potential ch an g e to be proposed in potential future filings.” Rehe aring Order
, at P. 18. Marke t Rule 17 “put transmission customers on

Coge n tr ix and Vis tr a adm it that they “are not aw ar e of an 8 inst anc e in w hich this Cour t has fo und th at a st at

ute or re gul at io n expre ss ly per

m it ti ng co st re co ve ry pro vi des ade quate not ic e.” Pet it io ner s’ Br. 34.15

notic e t h at the defa

ult rate s” in the tariff “would apply only absent a separ ate neg otiated ag ree ment,” which “m ay have
retroa ctive eff

ect.” NSTAR
, 481 F.3 d at 801. Marke t Rule 17 thus es t ab lished that the filed rate s wer e “provisional only and subject to later revision.” Id. (quoting Columbia Gas
, 895 F.2d
at 797). I n contra st, notice that critica l fac iliti es seek to rec over Schedule 17-qualify

ing costs will be provided at the time of critica l fac iliti es’ FPA § 205 filings, not at the filing of Schedule 17 itself.

We conclude that the Commi ssion’s application of the filed
rate doctrine and the rule ag ainst retroactive rate making to Schedule 17 wa s not arbitrar y or ca pricious. 9

Petition Denied.

The re m ai ning ar gum ents of Cog entr ix and Vis tr a do not 9

w ar ra nt dis cus si on a

nd are re ject ed.