New England Power Generators Association v. FERC , 879 F.3d 1192 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 27, 2017 Decided January 19, 2018
No. 16-1023
NEW ENGLAND POWER GENERATORS ASSOCIATION, INC.,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
DYNEGY MARKETING AND TRADE, LLC, ET AL.,
INTERVENORS
Consolidated with 16-1024
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
James E. Tysse argued the cause for petitioner. On the
briefs were Suedeen G. Kelly, John M. White, and Bruce F.
Anderson.
Carol J. Banta, Senior Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief was Robert H. Solomon, Solicitor.
2
Jason R. Marshall and Phyllis G. Kimmel were on the brief
for intervenor New England States Committee on Electricity,
Inc. in support of respondent.
Before: GRIFFITH, Circuit Judge, and SENTELLE and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: The New England Power
Generators Association petitions for review of two sets of orders
of the Federal Energy Regulatory Commission concerning a
scarcity pricing mechanism in the New England power market.
ISO New Eng. Inc., 147 FERC ¶ 61,172 (2014) (“Tariff Order”),
reh’g denied, 153 FERC ¶ 61,223 (2015) (“Tariff Rehearing
Order”); New Eng. Power Generators Ass’n v. ISO New Eng.
Inc., 150 FERC ¶ 61,053 (“Complaint Order”), reh’g denied,
153 FERC ¶ 61,222 (2015) (“Complaint Rehearing Order”).
The exhaustion requirements of the Federal Power Act (“FPA”)
deprive us of jurisdiction over the Association’s petition to
review the Tariff Order. Accordingly, we dismiss the petition
in Case No. 16-1023 seeking review of the Tariff Order. We
reach the merits in the Association’s challenge to the Complaint
Order and hold that the Commission was not arbitrary or
capricious in denying the Association’s complaint. We
therefore deny the petition in Case No. 16-1024 seeking review
of the Complaint Order.
I.
A.
ISO New England Inc. is a private, non-profit entity that
administers wholesale electricity and capacity markets in New
3
England. See Blumenthal v. FERC, 552 F.3d 875, 878 (D.C.
Cir. 2009). In this role, ISO New England must submit its tariff
to the Commission for approval under FPA § 205, 16 U.S.C.
§ 824d. See Braintree Elec. Light Dep’t v. FERC, 550 F.3d 6,
9 (D.C. Cir. 2008). The tariff establishes rates for the electricity
and capacity markets, and FPA § 205 requires that these rates be
“just and reasonable.” See id.
ISO New England operates two distinct markets for
wholesale electricity under its tariff: a day-ahead market and a
real-time market. In the day-ahead market, participants offer to
sell one-hour blocks of electricity to be delivered the next day.
In the real-time market, electricity is offered in five-minute
increments for immediate delivery, which corrects for
imbalances between electricity scheduled in the day-ahead
market and real-time demand. Our opinion in Black Oak
Energy, LLC v. FERC, 725 F.3d 230, 233 (D.C. Cir. 2013),
discusses the history and purpose of these markets.
To ensure that generators produce enough energy in real
time, ISO New England’s tariff includes a special pricing
mechanism triggered when energy in the real-time market is
scarce. When insufficient energy is being produced or energy
prices become excessive, the price in the real-time market is set
based upon Reserve Constraint Penalty Factors. See Complaint
Order, at P 6. We will refer to these as “Scarcity Rates” to
reflect their function. The Scarcity Rates are a set of fixed
values, preestablished in ISO New England’s tariff, that
correspond to different categories of energy generation. The
Scarcity Rates serve as inputs to ISO New England’s pricing
algorithm during scarcity conditions, as well as price caps
representing maximum allowable prices in the real-time market.
For our purposes, it is enough to say that higher Scarcity Rates
produce higher real-time energy prices under stressed market
conditions.
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ISO New England also administers an auction market for
capacity. Capacity is “a kind of options contract” to ensure
availability of electricity in the future. Advanced Energy Mgmt.
All. v. FERC, 860 F.3d 656, 659 (D.C. Cir. 2017) (per curiam).
Under ISO New England’s tariff, capacity is allocated in a
forward capacity market in which capacity is bought and sold in
annual blocks three years in advance. See Complaint Order, at
P 2. For example, a capacity auction was held in February 2014
covering the capacity commitment year of June 1, 2017, through
May 31, 2018. Payments for capacity purchased in these annual
auctions are delivered to capacity suppliers monthly during the
capacity commitment year. See id. In return, capacity suppliers
must offer capacity in the day-ahead and real-time electricity
markets over the course of that year. See id.Like the Scarcity Rates in the real-time energy market, ISO
New England uses special pricing mechanisms in the capacity
market to correct perceived market failures. At issue here is the
Peak Energy Rent Adjustment (the “Adjustment”), which
attempts to claw back some revenues earned by capacity
suppliers when prices in the real-time energy market are very
high. The Adjustment has two intended purposes. See
Complaint Order, at P 3 (citing Devon Power LLC, 115 FERC
¶ 61,340, at PP 24, 29 (2006)). First, it is intended to mitigate
the costs of price spikes to electricity purchasers. Second, it is
intended to reduce the incentive for electricity suppliers to
generate price spikes intentionally by withholding electricity.
To put it simply, the Adjustment removes a rolling average of
“peak energy rents” from suppliers’ monthly capacity payments
and rebates this revenue back to load. See Complaint Order, at
P 4. Each day, ISO New England calculates a “strike price,” a
price just above the marginal cost of running the most expensive
power generator in New England. See id. It next calculates
hourly peak energy rents––roughly the excess of the real-time
electricity price over the strike price––for any hour in which the
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real-time price exceeds this strike price, time periods we will
refer to as “Adjustment Events.” See id. ISO New England then
derives a monthly value of peak energy rents, averages it over
the past twelve months, and subtracts this quantity from
suppliers’ monthly capacity payments as the total Adjustment.
See id.Importantly, this value is deducted from every capacity
supplier’s monthly capacity payments, without regard to
whether a particular supplier actually sold energy in the real-
time market at the high price. See id. However, according to
the Association, the vast majority of capacity suppliers clear
their electricity offers in the day-ahead market. They therefore
receive the day-ahead market price, rather than the real-time
price on which the Adjustment is based. The Commission has
acknowledged that this is a “potential inefficiency,” Tariff
Rehearing Order, at P 105, and, in light of other changes to New
England power markets, has approved elimination of the
Adjustment starting with the capacity commitment year
beginning June 1, 2019, ISO New Eng. Inc., 151 FERC ¶ 61,096,
at P 1 (2015).
At issue here is the interaction between the Scarcity Rates
and the Adjustment. Although the triggers for implementing
Scarcity Rates and Adjustment Events are not identical, the
magnitude of the Adjustment is based on the price of real-time
energy, which in turn is based on the Scarcity Rates under
certain market conditions. Thus, a change in the Scarcity Rates
changes the Adjustment in theory, if not also in practice.
B.
In January 2014, ISO New England and the New England
Power Pool (“NEPOOL”) Participants Committee submitted
proposals to revise ISO New England’s tariff under FPA § 205,
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16 U.S.C. § 824d. These proposals purported to improve
generator performance and reliability in New England. In its
May 2014 Tariff Order, the Commission rejected both proposals
and instituted a proceeding under FPA § 206, 16 U.S.C. § 824e,
to determine new rates. Tariff Order, at P 1.
Pursuant to FPA § 206, the Commission found the existing
tariff to be unjust and unreasonable, found each of the two
proposed revisions had not been shown to be just and
reasonable, and adopted a combination of the ISO New England
and NEPOOL proposals as just and reasonable. Tariff Order, at
PP 23–25. The Commission ordered ISO New England to
submit a compliance filing modifying its tariff accordingly. Id.
at P 25. Relevant here, the Commission directed increases in the
size of a subset of the Scarcity Rates to incentivize better
performance, as originally proposed by NEPOOL. Id. at
PP 107–09. In light of these increases, the Commission
instructed ISO New England to discuss in its compliance filing
what further changes to its tariff, if any, were necessary. Id. at
P 110. Additionally, the Commission dismissed as “beyond the
scope of this proceeding” GDF SUEZ Energy Marketing NA,
Inc.’s (“GDF SUEZ”) concern that increases to the Scarcity
Rates would exacerbate inefficiencies associated with the
Adjustment. Id. In its compliance filing, ISO New England
ultimately agreed with this assessment, and it opted instead to
initiate a separate stakeholder process to reconsider the
Adjustment.
After the Commission issued the Tariff Order, several
parties sought rehearing or requested clarification. Two of these
filings matter in this case. First, the Association filed a Motion
for Clarification, which addressed an unrelated issue, but it
never requested rehearing. See Reply Br. of Pet’r 1; Oral Arg.
at 7:21–7:57. Second, several parties (“Indicated Generators”),
including members of the Association, requested rehearing.
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This request urged that ISO New England’s tariff exclude the
increases to the Scarcity Rates or alter the Adjustment in light of
the increased Scarcity Rates. JA 269–70. On November 19,
2015, the Commission denied rehearing. Tariff Rehearing
Order, at P 105. The Commission again recognized the
“potential inefficiency” with the Adjustment but stated that it
“exists independent of the increase” to the Scarcity Rates and
was therefore unnecessary to consider in the proceeding before
it. Id. The Commission noted that it had approved revisions to
the tariff that eliminated the Adjustment beginning June 1, 2019,
and suggested that any changes prior to that date could be made
through a separate stakeholder process. Id. at P 106. As a
result, the increased Scarcity Rates went into effect on
December 3, 2014. See ISO New Eng. Inc., 149 FERC ¶ 61,009,
at P 23 (2014).
That same day, the Association filed a complaint under FPA
§ 206 challenging the Adjustment in effect through May 31,
2018. The Association contended that the increased Scarcity
Rates exacerbated the adverse impact of the Adjustment, that
capacity suppliers could not adjust their prices to adapt because
the relevant capacity auctions––which take place three years in
advance––had already occurred, and that the Adjustment was
therefore unjust and unreasonable. As evidence, the Association
referred to an analysis by ISO New England, a simulated
historical back-cast that calculated the size of the Adjustment as
if the new Scarcity Rates had already been in effect. The
Association later supplemented this with data from an
Adjustment Event that occurred on December 4, 2014. On
January 30, 2015, the Commission denied the complaint, finding
the Association had not met its FPA § 206 burden to show that
ISO New England’s existing tariff––by that point, the revised
tariff with the higher Scarcity Rates––was unjust and
unreasonable. Complaint Order, at P 35. The Association
8
requested rehearing, which the Commission denied. Complaint
Rehearing Order, at P 20. This petition for review followed.
II.
A.
As a threshold matter, we lack jurisdiction to consider the
Association’s challenge to the Tariff Order because the
Association has not met the requirements of FPA § 313(a), 16
U.S.C. § 825l(a). This provision is a “mandatory petition-for-
rehearing requirement.” Granholm ex rel. Mich. Dep’t of Nat.
Res. v. FERC, 180 F.3d 278, 281 (D.C. Cir. 1999). We have no
“discretion to ignore this ‘express statutory limitation on the
jurisdiction of the court.’” DTE Energy Co. v. FERC, 394 F.3d
954, 960 (D.C. Cir. 2005) (quoting Cal. Dep’t of Water Res. v.
FERC, 306 F.3d 1121, 1125 (D.C. Cir. 2002)). Although FPA
§ 313(a) was not briefed, “we have an independent obligation to
assure ourselves of jurisdiction, even where the parties fail to
challenge it.” Floyd v. District of Columbia, 129 F.3d 152, 155
(D.C. Cir. 1997).
Section 313(a) states: “No proceeding to review any order
of the Commission shall be brought by any entity unless such
entity shall have made application to the Commission for a
rehearing thereon.” 16 U.S.C. § 825l(a) (emphasis added).
While the Association filed a Motion for Clarification of the
Tariff Order, it did not file an “application to the Commission
for a rehearing thereon,” so we cannot consider its petition to
review that order.
Moreover, it is insufficient under § 313(a) that the Indicated
Generators, which requested rehearing, may include members of
the Association. Section 313(a) governs our ability to entertain
a petition to review a Commission order “by any entity.” We
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lack jurisdiction to do so unless “such entity”––that is, the entity
petitioning our court for review––requested rehearing. There is
no contention here that Indicated Generators and the Association
are the same “entity,” even if some members overlap. Thus, the
Association needed to seek rehearing. It did not. While we
need not consider precisely why Congress created this unusually
demanding exhaustion scheme, cf. ASARCO, Inc. v. FERC, 777
F.2d 764, 774 (D.C. Cir. 1985) (considering rationale behind
materially equivalent rehearing requirement in the Natural Gas
Act), our precedent is clear that § 313(a) deprives us of
jurisdiction over the claims of a petitioner who failed to seek
rehearing, even if some other party sought rehearing, see, e.g.,
DTE Energy, 394 F.3d at 960–61.
B.
Even if the Association had submitted its Motion for
Clarification as a request for rehearing, which it did not, we
would still lack jurisdiction over the Tariff Order for another
reason. Section 313(b) of the FPA provides, “No objection to
the order of the Commission shall be considered by the court
unless such objection shall have been urged before the
Commission in the application for rehearing unless there is
reasonable ground for failure so to do.” 16 U.S.C. § 825l(b)
(emphases added). Like § 313(a), this prerequisite for review is
jurisdictional; we have no discretion to disregard it. See DTE
Energy, 394 F.3d at 961. That is, under § 313(b), the party
seeking judicial review must have raised in its rehearing request
before the Commission each objection it puts before the
reviewing court. See Platte River Whooping Crane Critical
Habitat Maint. Tr. v. FERC, 876 F.2d 109, 112–13 (D.C. Cir.
1989); see also Kelley ex rel. Mich. Dep’t of Nat. Res. v. FERC,
96 F.3d 1482, 1487–88 (D.C. Cir. 1996) (rejecting “implicit”
arguments as insufficient). Here, the Association’s Motion for
Clarification concerned an issue distinct from those now
10
advanced in its petition for judicial review. The Association
thus failed to meet the requirement of § 313(b).
Nor can the contents of Indicated Generators’ rehearing
request save the Association. It is of no moment that Indicated
Generators objected to the increased Scarcity Rates’ effect on
the Adjustment. Like § 313(a), § 313(b) contains an identity of
entity exhaustion requirement. It is not enough that some party
before the Commission raised the argument and that the
Commission considered it; instead, the party petitioning for
judicial review must itself have requested rehearing, and made
the same objections it seeks to raise in court. See Platte River,
876 F.2d at 112–13. The text of § 313(b) “makes it plain that
what is referred to is the same application for rehearing
mentioned earlier in subsection (b), which in turn (by reason of
the same use of the definite article) clearly refers to the same
application for rehearing mentioned in subsection (a), to wit, the
application of the party who seeks judicial review.” ASARCO,
777 F.2d at 773 (discussing materially equivalent language in
the Natural Gas Act).
The Association offers the excuses that it had a “reasonable
ground for failure,” 16 U.S.C. § 825l(b), to raise its objections
in a rehearing petition, and that the Tariff and Complaint Orders
are so “inextricably linked” that they must be considered
together, Reply Br. of Pet’r 4. The “reasonable ground”
exception “is reserved for an ‘extraordinary situation,’” such as
when a Commission practice is admitted or adjudged to be
unlawful. Save Our Sebasticook v. FERC, 431 F.3d 379, 382
(D.C. Cir. 2005) (quoting Wis. Power & Light Co. v. FERC, 363
F.3d 453, 460 (D.C. Cir. 2004)). The Association’s alleged
“reasonable ground”––that it “reasonably believed” the
Adjustment would be addressed in ISO New England’s
compliance filing, Reply Br. of Pet’r 2––is not comparable to
the “reasonable grounds” we have previously accepted. In any
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event, the Association’s position is unconvincing in light of
previous decisions in this proceeding: ISO New England
stakeholders had already rejected GDF SUEZ’s proposal to
modify the Adjustment, see JA 154, and the Commission, in
directing ISO New England’s compliance filing, explicitly gave
ISO New England the option not to further alter its tariff in
response to the increased Scarcity Rates, see Tariff Order, at
P 110. The Association was certainly on notice that the
Adjustment might not be changed––Indicated Generators
evidently saw the problem and petitioned for rehearing
accordingly––so this by no means presents an extraordinary
situation.
In addition, the two cases the Association cites for its
“inextricable link” argument, Reply Br. of Pet’r 4, do not control
on our facts. The cited language from Cities of Batavia v.
FERC, 672 F.2d 64, 72 n.15 (D.C. Cir. 1982), is dicta from a
footnote; the jurisdictional issue there was resolved on other
grounds, id. at 72–73. Kansas Cities v. FERC, 723 F.2d 82(D.C. Cir. 1983), found jurisdiction when a rehearing request
timely challenged an order accepting a compliance filing but not
an earlier order specifying the relevant legal rule to be used in
the agency proceedings, id. at 85–86. In that case, it was unclear
whether the petitioners were “aggrieved” by the earlier order, as
is required for jurisdiction under FPA § 313. See Kan. Cities,
723 F.2d at 85–86 & n.3. Here, we need not consider when the
Association became “aggrieved” because the Association never
filed a rehearing request. Furthermore, unlike both Cities of
Batavia and Kansas Cities, the jurisdictional problem in our case
does not concern the fact that there were multiple Commission
orders in the same ongoing proceeding. Distinct from the Tariff
Orders, the Complaint Orders are from a wholly separate,
Association-initiated proceeding, albeit concerning related
content. Applying the exception to the Association’s petition
would render § 313(b)’s strict jurisdictional bar toothless for
12
Commission-initiated § 206 proceedings, as any complaint
would be “inextricably linked” to the earlier agency
proceedings.
III.
A.
Although we have no jurisdiction to consider the
Association’s objections to the Tariff Order, we have
jurisdiction to consider its objections to the Complaint Order.
The Association filed a timely request for rehearing raising the
objections it now presses in its timely petition for judicial
review. The Association has therefore satisfied FPA § 313’s
jurisdictional requirements. See 16 U.S.C. § 825l(a), (b); 18
C.F.R. §§ 385.713(b), 385.2007(a).
The FPA dictates the standard of judicial review. In a
proceeding under FPA § 205, such as the initial proposed tariff
revisions by ISO New England and NEPOOL, “[t]he utility
bears ‘the burden of proof to show that the increased rate . . . is
just and reasonable . . ..’” Advanced Energy Mgmt., 860 F.3d at
662 (quoting 16 U.S.C. § 824d(e)). In a proceeding under FPA
§ 206, such as the Association-initiated complaint proceeding,
the challenging party, whether the Commission or a
complainant, carries the burden of proving a rate is unjust and
unreasonable. See 16 U.S.C. § 824e(b); see also, e.g., La. Pub.
Serv. Comm’n v. FERC, 860 F.3d 691, 695 (D.C. Cir. 2017).
Once the Commission finds that a rate is unjust and
unreasonable, the Commission bears the burden of determining
a new just and reasonable rate. See Advanced Energy Mgmt.,
860 F.3d at 663 (citing 16 U.S.C. § 824e(a)). We review
Commission determinations under the arbitrary and capricious
standard. See Blumenthal, 552 F.3d at 881 (citing 5 U.S.C.
§ 706(2)(A)). Because we are dealing here with technical and
13
policy-based determinations, the Commission’s judgment is
entitled to judicial respect. See S.C. Pub. Serv. Auth. v. FERC,
762 F.3d 41, 55 (D.C. Cir. 2014) (per curiam).
We conclude that the Complaint Orders were not arbitrary
and capricious. The Association initiated its complaint pursuant
to FPA § 206 and accordingly bore the burden of proof. The
Commission confronted the Association’s evidence and found
it insufficient to demonstrate that rates were unjust and
unreasonable. Complaint Order, at PP 35–41. The
Commission, while carefully explaining why the Association
had failed to deal adequately with the overall revenue context,
left open the possibility that additional evidence could alter its
judgment. Id. at P 40. The Commission gave three reasons for
its judgment.
First, the Commission found that the Association’s
evidence, which consisted of data from the December 4, 2014,
Adjustment Event and a counterfactual historical back-cast,
neglected to consider the likely frequency and size of future
Adjustment Events. Complaint Order, at PP 36, 40; Complaint
Rehearing Order, at PP 23, 28. Without such context, especially
in light of other changes to ISO New England’s tariff, the
Commission reasonably found that this evidence did not show
the Adjustment was unjust and unreasonable. Contrary to the
Association’s claim before the court, the Commission did not
require proof of “additional instances of actual harm,” Br. for
Pet’r 43, but rather found that the Association had failed to
explain what its data meant for the total impact of the
Adjustment.
Second, the Commission faulted the Association for not
addressing potential increases to energy prices in the day-ahead
market, which in aggregate might offset expected increases to
the Adjustment. Complaint Order, at PP 38–39; Complaint
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Rehearing Order, at P 29. The Commission noted that these
rates adjust daily and might, on average, increase in anticipation
of expected higher real-time market prices due to the increased
Scarcity Rates. Complaint Order, at PP 38–39. The
Association’s shortcoming, in the Commission’s view, was its
failure to consider how other aspects of the energy market might
respond to the new Scarcity Rates. As such, the Commission
reasonably explained why it thought the Association had not
demonstrated an aggregate change to supplier revenue that was
unjust and unreasonable.
Third, the Commission determined that price floors
effective in pre-Tariff Order capacity auctions might
compensate for any additional losses from the potentially larger
Adjustment. Id. at P 37. The Association takes issue with this
because the price floors were already part of the just and
reasonable rate on file, so, the Association contends, the price
floors cannot offset a change to the Adjustment. Br. for Pet’r
37–42. This is not strictly correct, as “[t]he Supreme Court has
repeatedly rejected the argument that there is only one just and
reasonable rate possible . . ..” Blumenthal, 552 F.3d at 883(internal quotation marks omitted). To the extent the price
floors generated rates high in the “zone of reasonableness,” cf.
Maine v. FERC, 854 F.3d 9, 22–24 (D.C. Cir. 2017) (clarifying
role of “zone of reasonableness” in FPA § 206 proceedings),
they might prevent increases to the Scarcity Rates from making
the Adjustment unjust and unreasonable. Regardless, in denying
rehearing, the Commission did not rely on its price-floor
determination, except insofar as it argued that settled
expectations do not preclude rate changes. Complaint
Rehearing Order, at P 30 & n.46.
Because the Commission fulfilled its obligation to “examine
the relevant data and articulate a satisfactory explanation for its
action,” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
15
Co., 463 U.S. 29, 43 (1983), we find the Complaint Orders were
not arbitrary or capricious.
B.
We decline to disturb this result––as the Association urges
us to do––in response to the outcome of the Association’s
second complaint proceeding challenging the Adjustment under
FPA § 206, initiated in September 2016. See New Eng. Power
Generators Ass’n v. ISO New Eng., Inc., 158 FERC ¶ 61,034, at
P 13 (2017). In that proceeding, the Association provided
twenty months of additional evidence in arguing that the
Adjustment had become unjust and unreasonable because of the
increased Scarcity Rates. See id. at PP 13–23 (summarizing the
complaint). The Commission agreed. Id. at P 48.1 This
additional evidence cured the Commission’s concern that the
limited evidence initially relied upon might not reflect overall
market conditions under the revised tariff. Id. at PP 49–51.
So long as any change is reasonably explained, it is not
arbitrary and capricious for an agency to change its mind in light
of experience, or in the face of new or additional evidence, or
further analysis or other factors indicating that the agency’s
earlier decision should be altered or abandoned. Cf. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 514–16 (2009). The
Supreme Court has itself overruled many of its decisions over
the years in light of such considerations. See Congressional
Research Service, The Constitution of the United States of
America: Analysis and Interpretation, S. Doc. No. 112-9, at
1
As of this opinion, an uncontested settlement is pending
before the Commission. We note that any settlement would not fully
moot this case because the second complaint proceeding has a refund
effective date of September 30, 2016, see New Eng. Power Generators
Ass’n, 158 FERC ¶ 61,034, at P 1, whereas the complaint in this case
requested a refund effective date of December 3, 2014, see JA 378.
16
2623–35 (2017). As a corollary, a change in an agency’s course
in reaction to new information does not indicate that its initial
course was necessarily arbitrary and capricious when charted.
On the facts before us, the Commission’s reconsideration when
presented with more data does not change our view of the
propriety of the Complaint Orders.
IV.
The Association also raises procedural objections to the
Commission’s orders, arguing that the Commission unlawfully
allocated burdens of proof and imposed illegal evidentiary rules.
As a preliminary matter, the Association, in its rehearing
request, did not raise the argument that the Commission
improperly shifted the burden of proving that the Adjustment
was unjust and unreasonable.2 This objection is therefore barred
under FPA § 313(b) for reasons already discussed. The
Association’s objections are in any event not well-taken. The
Commission complied with the burdens of proof of the FPA.
And the Association’s evidentiary challenges amount to little
more than complaints about the Commission’s weighing of
evidence, which we have already concluded the Commission
carried out in a satisfactory manner in accordance with the
burdens of proof.
V.
For the reasons stated above, the petition for review of the
Tariff Order, Case No. 16-1023, is dismissed for lack of
2
The Association did raise an argument about who bears the
burden of proving a new rate is just and reasonable once an existing
rate is found to be unjust and unreasonable under FPA § 206.
However, this is distinct from the argument now raised before this
court.
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jurisdiction and the petition for review of the Complaint Order,
Case No. 16-1024, is denied on the merits.
So ordered.