Consolidated Edison Company of New York, Inc., Duquesne Light Company, and Ohio Edison Company v. United States Department of Energy
870 F.2d 694
D.C. Cir.
1989
Check Treatment

*1 Conclusion stated, affirm the the reasons

For principal part. judgment

district court’s pending need

Proceedings in court assist- to obtain foreign prosecutor

for a under sec- person” an “interested

ance as were within proceedings 1782. Court

tion here, contemplation and the dis-

reasonable properly denied court therefore

trict remand to quash. We motion to

Ward’s however, court, pro- for further

the district opinion,

ceedings consistent with in a man- is taken that the evidence

ensure judicial proceed- for use appropriate,

ner Kingdom.

ings in the United

It is so ordered.

CONSOLIDATED EDISON COMPANY YORK, INC., Duquesne

OF Light NEW

Company, and Company, Ohio Edison

Petitioners,

UNITED STATES DEPARTMENT OF

ENERGY, Respondent.

No. 88-1194. Appeals,

United States Court

District of Columbia Circuit.

Argued Dec. 1988.

Decided March

As April Amended Anderson,

Pamela H. Jay E. Silberg (on brief), Washington, D.C., petitioners. Cole, William G. Dep’t Justice, John R. Bolton, Robert S. Greenspan, Dep’t of Jus- (on tice brief), Wittenauer, Robert Dep't of Energy, Washington, D.C., for respon- dent. *2 1983, equal fee 1.0 mil ... shall be RUTH BADER GINSBURG

Before per kilowatt-hour. SILBERMAN, Judges, and [sic] Circuit and GIBSON,* Circuit R. Senior FLOYD 10222(a)(2)(1982). 42 U.S.C. § Appeals Judge, Court United States April adopted a final In DOE rule Eighth Circuit. ongoing one mill fee providing that 10222(a)(2)

under subsection would be by filed Opinion for the Court charged electricity generated by on all each Judge R. 16,590, Circuit FLOYD power plant. Fed.Reg. Senior nuclear 48 (1983). utilities, 16,602 group A GIBSON. of electric including two of the three utilities involved Concurring opinion by filed Circuit case, challenged that rule in in this Wiscon Judge SILBERMAN. Department sin Electric Power Co. v. (“WEP (D.C.Cir.1985) Energy, 778 F.2d 1 GIBSON, Circuit R. Senior FLOYD CO”). argued The utilities in WEPCO Judge: charge mill may not the one fee Compa- Edison Consolidated Petitioners by utility electricity for used a on-site to York, Inc., Light Duquesne ny of New operate plant electricity is (“the Company and Edison Company, Ohio “generated required sold” as not ... and utilities”) of a final rule challenge portion a of the Act. at subsection Id. Energy Department of promulgated agreed the utilities in We with (“DOE”) pursuant to the Nuclear Waste granted petition thus their for review. and (1982) Act, seq. Policy 42 10101et U.S.C. §§ found that ... and We Act”). (“NWPA” or “the language plainly unambiguously sold” and requires that the fee under subsection gen- that utilities that provides The rule only electricity be assessed statutorily power pay a erate nuclear generated actually and that is both hours prescribed fee on “net kilowatt based Id. at 8. 35,359 35,356, Fed.Reg. generated.” 52 having publish- September after (1987). The utilities claim that rule Rulemaking, 51 Proposed Notice of ed a plain language of the NWPA violates 7, 1986), 40,684 Fed.Reg. (proposed Nov. by assessing the fee on thereon, receiving comments DOE and actually agree sold. We and thus not the final rule that is at issue promulgated grant the utilities’ for review. attempt reflects DOE’s in this case which bring compliance with the its fee into I. holding 52 light of our WEPCO. Act 35,356 (1987). provides The rule NWPA, Congress charged Fed.Reg. In the on “net kilowatt administering a one mill assessment responsibility of for with the is defined as generated,” which permanent disposal of hours program for the by a “gross output produced civil- electrical high-level radioac- spent nuclear fuel and measured at the power ian nuclear reactor produced by civilian nuclear tive waste generator output of the turbine terminals disposal plants. The costs of the power normal onsite nuclear station minus the Act, according are to program, to the electricity during the time is service loads generate by electric utilities that nu- borne 35,359-60. being generated.” power consequently produce nu- clear and 10222(a)(2) part clear waste. Subsection parties A of interested submitted number system levying user fees of the NWPA’s proposed and con- comments on the rule as power generate nuclear on the utilities “net kilo- definition of tended that DOE’s provides that: failed, like the final generated” hours watt adequately re- electricity generated by rejected a civilian For rule lan- “generated ... and sold” power reactor and sold on or flect the nuclear argued January guage the Act. Commenters days the date 90 after after * 294(d). Sitting by designation pursuant § U.S.C. and unam- language plainly sold” “net kilo- ... definition although DOE’s applies only fee biguously provides generated” excluded hours watt on-site, to exclude it failed electricity that is both used (“T and distribution charge lost in the transmission fee sold, may by the electricity used D”) & generating plant itself facilities. their operate utilities argument rejected DOE’s consumes. We *3 methods of de- suggested two Commenters terms express to the that strict adherence calculating electric- losses in ducting T & D ineq- the produce would of the statute suggested It and sold. was ity generated paying ratepayers future result of uitable of deduction adopt a uniform nuclear disposal of earlier users’ for the Tfor account for all utilities to percent 8.65 Con- contravenes that this result waste on an figure based This D losses. & WEPCO, stated, overriding intent. gress’s hours average of kilowatt industry-wide that unconvinced 6. We were 778 F.2d at sug- Alternatively, commenters not sold. intention, ei- an had Congress manifested mill fee on one assess the gested that DOE legislative in its Act itself or ther in the of calculation utility-specific of a the basis provision the “and sold” history, that electricity generated that of percentage the in any than in fashion other be read should number of multiplied by the total is nuclear in- as n. DOE meaning. Id. at paying plain to customers sold kilowatt hours meters. Final general accepted, the customers’ the voked, fully

measured at and we 8-9. at Brief for Petitioners agency’s interpreta- “an proposition that to directed it has been tion of the statute DT & argument that the rejected DOE ” ‘great operate off- is entitled deference.’ electricity used administer losses and from the at 23 and Appellees’ should be excluded (quoting site facilities 8 Brief Id. at electricity generated of 1, 16, calculation Tallman, 85 S.Ct. 380 U.S. Udall v. that its new in its final rule It stated (footnote (1965)) 13 616 L.Ed.2d guidance of the approach “follows [WEP- However, DOE’s omitted). we answered that, as envisioned CO and ensures ] prin irrefutable with the call for deference ratepayers carry their Congress, current any is not accorded deference ciple that of paying the burden fair share of the interpretation that overrides agency Fed.Reg. at 52 disposal of waste.” nuclear Congress. intent of clearly expressed com- rejected the 35,357. specifically was decision WEPCO The crux our uni- percent proposal of a 8.65 menters’ statutory lan our determination losses, T & D to account form reduction unambiguous. clear and guage at issue was result reasoning that method “would that congressional intent Having that found among inequities utilities.” in substantial language disputed was respect to the with final rule that in its stated Id.1 also the clear, necessarily concluded we ap- utility-specific several it examined given ef- meaning must plain statute’s D losses calculating T but & proaches agency administer- an fect because neither data rejected additional them it is interpreting court ing “would a statute nor a require from utilities they would Congress’s clearly administrative substantially increase the liberty to at override as that utilities as well burden Chevron Id. See also expressed intent. DOE.” Id. Inc. v. Resources U.S.A. Natural Defense 837, 842-43, Inc., 104 Council, U.S. 467 for review This followed. (1984) 2781-82, 81 L.Ed.2d S.Ct.

II. Congress is the intent of (stating that “[i]f matter; for the clear, end of the that is the that be- this circuit decided give court, agency, must as the as well 10222(a)(2)’s cause subsection Energy Regulatory Com- reports Federal disagreed con- with the commenters’ 1. DOE also average percent 6.9 value mission show percent represents indus- an clusion that 8.65 to T & losses. 52 due average due sold try-wide of kilowatt not sold hours 35,357. Fed.Reg. at rule that DOE stated in its final to T & D losses. expressed in- reductions the revenues it collects from unambiguously effect to the omitted). (footnote ongoing fee because in Congress”) WEPCO tent of adopt court concerned that DOE “was guided us in principles The approach defining genera- net ‘modest’ in this case. Electric also control WEPCO tion of so as not to defeat Con- T & D ity that is lost in the gress’ intent that an unfair burden not be facilities, like electricity used to run placed ratepayers initially on future if DOE on-site, is not is consumed insufficient 52 Fed. collects revenues.” “generated ... and sold” Reg. “inequity to This future meaning of subsection within ratepayers” theory primary was DOE’s ar- 10222(a)(2). Thus, agree the utili we with gument in stated in re- bring its fee into ties that in order sponse any to find that we were “unable adopt the Act DOE compliance with inconsistency Congress’ intent with deducting from the method of reasonable fidelity to would be created strict electricity upon it assess amount *4 express terms of the statute....” WEP electricity amount of es the one mill fee the CO, (footnote omitted). 778 F.2d at 6 We process T D and the amount lost in the & compelled to reach the are same conclusion operate electricity is used to that here. facilities. acknowledge regard in this that our We today “gap” III. decision widens the between electricity generated by. the total amount of in final rule that it has DOE asserts power plants the amount of the nuclear and in disregarded court’s decision not electricity upon ongoing the that fee. reasons that since the WEPCO. may assessed. In we found it be WEPCO the petitioners chose not to assert WEPCO significant from the fee of that exclusion D should exclude T & point that “and sold” electricity used on-site resulted in a “mod- off-site, electricity and used see losses percent est” reduction in the amount five 778 F.2d at 5 n. “these losses apply electricity may to which DOE the in the were not addressed [WEPCO in Deducting electricity fee. at 8. lost interpretation ‘generat- of the term court’s] * * * electricity T D used the & in ed and sold’ as used the Act.” 52 cause a further reduction of off-site will Fed.Reg. at perhaps, approximately percent, 8.65 or recognize T We that the issue of & Nevertheless, we remain somewhat less. electricity used off-site was losses and Congress plainly intended convinced that nothing in not raised in But our WEPCO. gener- ongoing applies only fee to otherwise, decision, explicitly or WEPCO sold, actually that is ated conclusion the suggests that our about liberty court nor DOE is at to neither this plain meaning applied of “and sold” exclu Further, Congress’s depart from dictate. sively to consumed on-site. We did in that DOE is we note as we WEPCO given held in that effect must be WEPCO remedy in the event that it not without Congress’s clear intention that the fee to being are finds that insufficient revenues only be levied on both program. pay disposal collected actually Today, we Act, 10222(a)(4) of the Under subsection holding.2 by are bound that annually Secretary the is directed to review rule, ongoing in order to for its DOE the of the fee support As further level are not further sufficient revenues suggests that should cause determine whether we Comm’n, identify, City Power and we are not aware See Cleveland v. Federal 2. DOE does not (D.C.Cir.1977) (vacatur of, estoppel ap- any 347-48 of waiver or that 561 F.2d doctrine inconsistency preclude be- plies utilities, on basis of one cited in these circumstances to the order controlling legal principle petitioners does tween order and two of which were in WEP- CO, citing asserting points preclude parties exem- from further from the not raised in not during subsequent pro- plary & D used inconsistencies WEPCOthat T losses remand). ceedings ongoing on off-site must be excluded from the fee. in 30 U.S.C. produced” phrase “coal of admin- the costs to offset being collected 1232(a) prevent Sec- not so as to Secretary de- If the program. istering § the assessing tax on from retary are be- of Interior revenues that insufficient termines out of weight of coal extracted collected, according gross to subsection ing impurities an “propose ground, inclusive of 10222(a)(4), he is directed prior full companies may fee to insure removed coal adjustment to the [sic] administration, sale). it seems recovery.” 42 U.S.C. And ease of § cost omitted). annual re- (1982) (footnote me, This the considerations be one of would buttresses Energy mechanism could take into view-and-adjustment Secretary of reach result we Congress’ man- implementing our conclusion in account Congress’s intent Nevertheless, not today thwart I concur does date. See id. ratepayers. burdening future unfairly my I opinion share the court’s Congress provided opinion subsection prior that our colleagues’ view which DOE problem a means to correct F.2d Dep’t Energy, 778 event, any are not anticipates. (D.C.Cir.1985),strongly suggested, if it 3-4 Congress’s clearly depart from liberty to compel, did not the conclusion expressed intention. prevents phrase “generated ... and sold” assessing any Secretary from fees

IV. electricity not nuclear-generated customer. delivered accept, argued, and we has difficult, impossible, if it is amount of elec precision the measure with *5 T & D

tricity lost to the however, re difficulty, does not

use. This obligation implement of the

lieve DOE ac and fair method of

some reasonable charging

counting for these losses fully recognize that to some ex

fee. We or rely approximations tent OF FORT BRAGG ASSOCIATION deducting averages in industry-based EDUCATORS, NEA, Petitioner, electricity used off-site and lost amount of v. leave it to the process, in the T & and we agency upon to decide a reasonable meth FEDERAL RELATIONS LABOR But, precise despite the od. obstacles AUTHORITY, Respondent. measurement, require adopt No. 87-1823. Congress’s in implements a method that ongoing fee under subsection tent that the Appeals, States Court of United applies only to District of Columbia Circuit. both Argued Jan. 1989. stated, For the reasons granted. review is Decided March SO ORDERED.

SILBERMAN, Judge, Circuit

concurring: phrase

I am not sure that the in 42 has

... and sold” U.S.C. § meaning necessarily excludes

electricity lost in the transmission and dis (selling) process.

tribution Drummond Cf. Hodel, (D.C. 796 F.2d Coal Co.

Cir.1986) (concluding meaning