Freehold Cogeneration Associates, L.P. v. Board of Regulatory Commissioners of New Jersey

рrocess. And to achieve jury in the selection outcome, panel relies

this remarkable FREEHOLD COGENERATION delay prosecution in the ASSOCIATES, L.P., calculus on possibly could not have appeal that Appellant, Simmons’ him under Batson. prejudiced v. COMMIS- BOARD OF REGULATORY my and write with I words

While measure OF the STATE OF NEW SIONERS restraint, plain in- circumspection and great JERSEY; Jersey Central Power ap- I that I am requires that tegrity Light Company. Judge appeal. of this palled at outcome “perhaps peo- indicates Hutchinson No. 94-5168. Jersey ... fail to understand ple of New Appeals, Court of United States participation of direct person how a convicted Third Circuit. doctor, elderly an murder of in the brutal into the streets the middle Argued who ventured Oct. 1994. emergency, to an night respond Decided 1995. Jan. Op. trial or released.” at [is] afforded a new Rehearing Petition for March Sur statement, as I agree I with that do only myself. it I can add not understand legitimately expresses panel

that while rights constitutional

concern about Simmons’ integrity of his con-

and “the constitutional

finement,” suggests Maj. op.-at it never guilt any question of Simmons’

that there is rejects going it all his contentions

and indeed Maj. op. at 1163 n. I.1 At

to those issues.

bottom, panel orders the release of a imprisonment to life

murderer sentenced years, only

plus 21 to 25 retry can

possibility that somehow the state years murder.

him 18 after the argued

I that not- realize that could made, points I have

withstanding the simply does not merit in banc consider-

case here are unusual.

ation because the facts

Nevertheless, I from the denial of dissent I

rehearing in banc as believe that at a Jersey people

minimum the of New and the

family are еntitled to have this of Dr. Doktor Judge full

ease considered court. joins opinion.

Alito (D.N.J.1992). F.Supp. 781-86

1. The district court set forth the facts of the case Arvonio, opinion. in its See Simmons v. Shapiro (argued), Lynn Robert F. N. Har- gis, Dickey, Parke, David C. Chadbourne & D.C., Washington, Walsh, Charles J. Sills Cummis Ep- Zuekerman Radin Tischman Gross, P.A., Newark, NJ, stein & appel- for lant.

Steven E. (argued), Greenbaum P. John Biedermann, Berlack, Liberman, Israels & City, Jersey New York Cent. Power & Light Co. (ar- Granger,

Theodore C. Public Advocate gued), Dept, of the Public Advocate of New Newark, NJ, Jersey, Poritz, Deborah T. Gen., Atty. Silkowitz, Atty. Andrea M. Asst. Gen., Wallenstein, Deputy Atty. Helene S. Trenton, NJ, (argued), Regu- Gen. for Bd. of latory Com’rs. Sooper, Energy Regulato-

Samuel Federal Commission, ry DC, Washington, for Federal Energy Regulatory Com’n. STAPLETON, HUTCHINSON, Before: ROSENN, Judges. and Circuit THE OPINION OF COURT ROSENN, Judge. Circuit genesis Congress’ This case has its crea- promote tive effort to the use of alternative energy sources state and federal authorities. To make the nation more ener- gy independent, Congress sought to encour- age power production small facilities that use fuels, solar, wind, renewable such as biomass water, cogeneration and and facilities efficiently by use traditional more fuels se- quentially producing electricity both energy. steam or other useful thermal Free- (“Free- abundant, Associates, domestically produced fuels. L.P. Cogeneration hold PURPA, hold”) Congress facility Congress enacting directed the type of is the promulgate rules and promote. FERC wished to buy requiring public utilities to electric ener- sought a January Freehold On to, from, quali- gy and to sell electric declaratory judgment in the United States (“QFs”). fying cogeneration Id. facilities Jersey District of New District Court regulato- Congress directed state 824a-3.2 Regulatory Commissioners that the Board of BRC, authorities, ry imple- such as the “BRC”) (the Jersey of New of the State regulations promulgated ment the rules Utility Federal Public preempted by the FERC. Id. (“PURPA”) from Act Regulatory Policies approved previously modifying the terms of early pursuant to the then-effec- (“PPA”) agreement between power purchase policies procedures cogeneration tive Jersey Central Power Freehold and (the Jersey the New Board of Public Utilities (“JCP L”), Jersey & a New Light Company BRC, “BPU”), predecessor agency to the sought order utility. also an publiс negotiations with JCP Freehold commenced proceedings. ongoing BRC enjoining the concerning potential power purchase L& summary judgment, and Freehold moved agreement. During pendency of these to dismiss on and JCP & moved the BRC negotiations, adopted certain com- the BPU court denied grounds. The district various bidding guidelines replaced petitive which summary judgment Freehold’s motion by negotiation as method which utilities the to dis- motion granted the defendants’ procure long-term power purchase were to miss, matter holding that it lacked cogeneration such agreements with facilities matter. Freehold jurisdiction to hear the Freehold. as timely appeal to this court.1 filed competitive bidding After these We reverse. effect, petitioned Freehold guidelines took I. exempt, it from “grandfather,” to or the BPU Act, guidelines. & L newly adopted JCP Power 16 the Federal Under July petition. By order dated Energy opposed the seq., § the Federal 791a et U.S.C. “FERC”) (the 31, 1989, agreed grandfather to had the BPU Regulatory Commission negotiations with JCP “public Freehold’s regulate Freehоld. to the exclusive pre thereby governed & L were power at wholesale sell electric utilities” that 824(e). procedures, which ‍‌‌​‌‌​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​‌​​‌​‌‌​​​​​‌​​‌‌‍al existing policies § Id. at commerce. in interstate negotiate L and JCP & to Power lowed Freehold the Federal Congress modified power purchase agreement. Utility the terms of a of the Public the enactment Act with after, years of three Act, seq., § On March Id. at 823a et Regulatory Policies negotiations, Freehold JCP & legislative effort extensive comprehensive part as of a agreement power purchase energy L entered into a crisis. a nationwide to combat (the “PPA”), to commence on the date power genera to control is intended PURPA approval and to continue thereafter long-term economic BRC costs and ensure tion twenty years. ap period The BRC reliance on by reducing the nation’s growth 8,1992.3 July proved more the PPA order dated increasing the use of gas and oil and entity primarily facility an jurisdiction pursuant to 28 must be owned This court has engaged generation of electrical in the or sale appeal § from the district U.S.C. 1291 over this 796(18)(B). power, § is a U.S.C. judgment. court's final The II, QF. court discussed in section district infra. challenges the BRC's 1988 order 3.JCP & L produces cogeneration facility which is one A grandfathering the 1988 rate Freehold from energy, of useful and steam or forms electrical approving guidelines, and the 1992 BRC order commercial, energy used for industrial which are However, are both of these orders the rates. cooling purposes. U.S.C. heating, or nonappealable. now final and QF, 796(18)(A). qualify as a § In order to Additionally, not address the Division of we will facility requirements set forth meet the must ("DRA”) argument 292.101, Ratepayer FERC, seq., Advocate’s § et 18 C.F.R. PPA, terms of L PPA, Under the JCP & is farther found that which refers pay disputes Freehold 100% of JCP & L’s 1989 agreement under the to “the BRC purchase competent jurisdiction avoided cost electrical or a court of in the power. Avoided cost is the cost which Jersey,” JCP State of supported New finding by purchasing energy & L avoids from Free- jurisdiction. there was no federal generating hold rather than itself district court did not preеmption address the purchasing it from some argument other source. 16 opinion. in its 824a-3(d). § U.S.C. 12,1993, response April On to decreases II. obtaining power, the cost of electrical PURPA, In enacting Congress sought public notify BRC directed utilities to it of to overcome traditional electric utilities’ re any power supply contracts which were no purchase power luctance to from nontradi longer economically beneficial. The tional generation electric facilities and to re encourage buy wished to outs and other re- duce the financial burden of state and federal power medial measures reduce costs. regulation on nontraditional facilities. FERC reviewing Freehold, After its contract with v. Mississippi, 750-51, JCP & concluded that the PPA should be 2126, 2132-33, (1982). S.Ct. 72 L.Ed.2d 532 16, 1993, April modified. On & L JCP con- To impediment overcome the first develop proposed buy tacted Freehold and out of ing nontraditional power, sources of rejected proposal. the PPA. Freehold 210(a) PURPA, 824a-3(a), 16 U.S.C. re 12, 1993, May On & L JCP notified the BRC quires prescribe FERC “such rules as longer economically that the PPA was no an necessary determines encourage cogen beneficial contract because the contractual eration power production,” and small includ significantly higher avoided cost was than the ing requiring rules traditional pur utilities to current avoided cost due to the decrease in electricity QFs. chase from FERC v. Mis obtaining power. the cost of electrical On 751, sissippi, 456 U.S. at 102 S.Ct. at 2133. 22, 1993, September again pro- JCP & L regulatory State imple authorities will then posed buy Freehold, a out to which Freehold 824a-3(f). § ment these rules. 16 U.S.C. again rejected. The BRC then unsuccessful- obstacle, To surmount the second section ly attempted joint agreement to formulate a 210(e) requires of PURPA the FERC to parties modifying By between the the PPA. implement regulations exempting QFs from 5,1994, January order dated the BRC direct- regulation to which traditional elec- parties renegotiate purchase ed the to subject, tric including utilities are provi- most or, alternative,

rate term of PPA in “[sjtate sions of the Federal Act Power negotiate buy an appropriate out of the PPA. regulations respecting rаtes, laws and or provided parties The order further that if the respecting organizational reg- financial or agreement days did reach an within 30 of ulation, § of electric utilities.” Id. at 824a- order, the BRC would commence an evi- 3(e)(1). In provisions accordance with these dentiary hearing to consider various courses PURPA, of promulgated regula- the FERC of action. governing tions transactions between utilities January this filed action on QFs, including specific requirement 1994, seeking judgment declaring that the utility purchase electricity that a must made preempted by BRC’s order is PURPA by QFs up utility’s available at a rate enjoining court order the enforcement of that full §§ avoided cost. 18 C.F.R. 292.303-304 granted order. The district court the defen- (1993). dismiss, dants’ motion to holding that section 210(g) PURPA, 210(e)(1) § of 824a-3(g), 16 U.S.C. Acting pursuant to section Act, PURPA, § the Johnson 28 U.S.C. divested promulgated regula- the FERC also jurisdiction. it of matter exempting QFs The court tions from various federal approval (3d Cuyler, BRC’s of a 1989 avoided cost in Patterson v. 729 F.2d Cir. making 1992 was ultra vires because the DRA is 1984). argument appeal. for the first time on See by The district reg- final dеcision the FERC. requirements. The regulatory and state court reasoned that: pertinent part: state ulations ], 210(g) Congress [B]y enacting [section (1) exempted ... from [QF] be Any shall judicial specifically provided that review respecting: regulation law or State regulatory authorities orders the State (i) utilities; and electric The rates of only by courts or to be made the state (ii) reg- organizational financial and only where Con- FERC. The instance utilities. ulation of electric jurisdic- gress provided for federal court judicial party seeks review tion is where 292.602(c). § 18 C.F.R. Here, has FERC. FERC of a decision no which this Court made determination A. review, allege might nor does Freehold the district Freehold asserts Thus, jurisdiction. un- as a basis for jurisdiction over question court had federal PURPA, does not have der this Court § 1331 be to 28 U.S.C. pursuant this case challenge over Freehold’s pro that the BRC claimed cause Freehold the BRC’s order. federally-established ceeding violated however, 210(g)’s language, shows Section support, Freehold relies rights. As PURPA scope than the it is more limited Lines, Inc., 463 Air U.S. v. Delta Shaw 210(g) pro- district court believed. Section (1983), L.Ed.2d 490 vides: Court stated: which the (1) may review be obtained re- Judicial dispute that federal courts beyond It is by a specting proceeding conducted enjoin state jurisdiction over suits have regulatory authority nonregulated State interfering with federal from officials purposes implement- electric injunc- plaintiff A who seeks rights_ ing any requirement of a rule under sub- regulation, state on the tive relief from (a) require- ... the same [under section regulation pre-empted ground that such judicial obtained ments as review which, by virtue of the by a federal statute added). (emphasis 2633] under 16 U.S.C. Constitution, Supremacy Clause Thus, 210(g)(1) applies only to review presents ques- a federal prevail, thus must regulators or no- proceedings jurisdic- courts have tion which the federal nregulated designed implement utilities § 1331 to resolve. tion under 28 U.S.C. any requirement promulgated rules at n. 2899 14 Id. at 96 n. 210(a), pursuant FERC to section 16 U.S.C. omitted). (citations Aireo Industrial Accord 210(a) 824a-3(a). requires § utilities Section Gases, Group, Inc. v. Team Inc. Div. purchase energy of BOC to from and sell Fund, Pension 850 Health & sters qualifying prices.4 Welfare facilities at certain (3d Cir.1988) (district F.2d 1032-34 parties disagree as to whether Free- jurisdiction under sec matter court implementa- challenging hold is the BRC’s cause of action tion on whether 1331 turns 210(a) tion of the FERC’s rules under section States). laws of United arises under challenging or whether it is the BRC’s ac- 210(e) supporting tions under section did not address section The district court argues, and the regulations. Freehold jurisdiction, but rather read section 1331 amicus, FERC, exception agrees, that Freehold is carving out an as 210(g) of PURPA as validity challenging of state action jurisdiction over all PURPA claims to federal by judicial implementing adopted rules involving review of a except those (f). brought 210(g)(2) applicable shall be under the [Such to this ac- action 4. Section is not judicial provides: requirements section same as review tion. That 2633], § under 16 U.S.C. obtained Secretary) may Any (including person regulation a state This case does not involve utility, against any bring electric an action 210(f), pursuant promulgated which to section power producer, qualifying qualifying small electriсity governs purchase be- the sale and cogenerator any requirement estab- to enforce QFs, by brought nor was it a authority tween utilities regulatory or non- lished a State regulation. QF person against regulated utility pursuant to enforce such to subsection electric 210(a). Rather, pursuant gard to section it FERC the Board’s Order implementing the alleges proceeding that the BRC is inconsis- FERC rules.” 210(e) preempted tent with and section The district court also relied on Greens- regulations promulgated and the FERC ease, boro. In that the District Court for the thereunder, exempt QFs which from state Northern Georgia District of held that sec- utility regulation. § 824a- See U.S.C. 210(g) jurisdiction tion divested it of over a 292.602(e). 3(e)(1); 18 C.F.R. QF’s claim that nonregulated utility failed to adhere to implementation plan its own argue The defendants that Freehold’s com- dealings QF. Greensboro, with the 210(a) plaint brought under section F.Supp. at 1374. The court held that complaint PURPA refers to the because requires PURPA applied” that such an “as implemented FERC’s rules under subsection (sic) bought court, claim “must be in state (a). court, Before the district jurisdiction which has exclusive ‘to enforce clearly upon implement- relied FERC’s rules any requirement’ nonregulated of a utility’s 210(a) arguing under ed section that the implementation plan.” (citing Id. 16 U.S.C. preempted. BRC’s actions were As noted Thus, § 824a-3(g)(2)). PURPA divested the Freehold, however, such references were court of because the in- case necessary explain what the FERC’s 210(f)(1). arising volved a claim under section provided in PURPA rules order to establish contrast, this case does not involve a the BRC’s actions were outside those arising 210(f), claim supra under section see pleadings reasonably rules. The read can be arising note rather a claim under .but proceeding to assert a claim that the 210(e). allege section Freehold does not preempted inconsistent with and section unregulated an pro- has failed to 210(e) regulations of PURPA and the FERC vide service to it in violation of the authori- thereunder, promulgated exempt QFs which ty’s implementation plan, or otherwise chal- utility regulation. from state See Bristol lenge implementation thе BRC’s of FERC Energy Corp. Hampshire v. New Pub. Utils. Rather, applied.” rules “as Freehold com- Comm’n, (1st Cir.1994) 13 F.3d plains that the BRC has interfered with its (even though defendant sent out data re- federally-granted right exempt to be from quests pursuant certain statute which utility-type regulation. certain See In- precluded jurisdiction, federal the court dependent Energy Producers Ass’n v. Cali- agreed plaintiffs with that the case did not Comm’n, Pub. Utils. No. C-91-2644 fornia statute, “arise impli- under” that but rather MHP, (N.D.Cal. 1992 WL 533058 June principles preemption relating cated 1992), grounds, rev’d on other 36 F.3d 848 QF Clause, exemption Supremacy and the Cir.1994). (9th triggered question jurisdic- which tion). essentially claiming Because Freehold is subjecting the BRC is actually The BRC concedes that Free 210(e), precluded by jurisdictional complaint brought hold’s was not to obtain 210(g)(1) regarding limitations of sections proceeding review of a implement Board proceedings implementing any require- required by jurisdic the FERC rules as (a) ment of a rule enacted under subsection 210(g) tional limitation in section of PURPA. juris- are not relevant to the district court’s Relying on Greensboro Lumber v. Geor Co. Thus, diction. it was error to dismiss Free- Co., (N.D.Ga.1986), gia F.Supp. Power 643 1345 complaint hold’s on the basis of PURPA’s (11th Cir.1988), 'd, 844 F.2d 1538 aff jurisdictional limitations. The district court however, argues the BRC that Freehold’s jurisdiction possessed pre- to hear Freehold’s complaint contends that the BRC has failed emption § pursuant claim to 28 U.S.C. implementation plan adhere to its own regulations by attempting under the ‍‌‌​‌‌​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​‌​​‌​‌‌​​​​​‌​​‌‌‍FERC B. modify prior to revoke or approval of the Thus, PPA. submits that “Free The district court also found that it complaint hold’s a complaint [involves] claim with re- must dismiss Freehold’s because 1186 Act, however, 1342, requires that Act, eliminat The Johnson U.S.C. 28

the Johnson Act, solely on the Federal jurisdiction be based enacting In the Johnson jurisdiction. ed claim that Constitution. Freehold’s seriously federal curtail Congress intended rely preempted not sole- is does utility BRC’s order subject of state jurisdiction over the ly grounds, but also relies Co., on constitutional Telephone 373 Bell Zucker v. rates. See PURPA, In a a federal statute. similar on (E.D.Pa.1974), 748, aff'd, 510 F.Supp. 750 ease, Appeals Eighth Court of Circuit denied, (3d Cir.), 422 cert. U.S. 971 F.2d preclude not that the Johnson Act did (1975). held 2621, 1027, 45 L.Ed.2d 684 jurisdictiоn public a claim that a over provides: Act The Johnson refusal of relief service commission’s was enjoin, sus- courts shall not The district preempted the Federal conflict with and of, com- operation pend or restrain Power Act. The court reasoned: with, affecting any rates order pliance true, course, that a federal It is statute utility and made chargeable public a only conflicting state law because overrides agency or a rate- administrative State Supremacy Clause of the Federal political subdivision making body of a State therefore, sense, pre- In a Constitution. where: always repugnance asserts emption claim (1) solely diversity is based Jurisdiction of state law to the Federal Constitution. repugnance of the order citizenship or usually require claim does not But such a Constitution; and, Federal interpreted. that the itself be Constitution (2) with in- not interfere order does Rather, meaning of federal statutes and, commerce; terstate explored, and of state law must be (3) after been made reason- The order has any conflict ascertained. A state extent of and, hearing; notice able preemp- law down on the basis struck (4) remedy speedy and efficient plain, perhaps aptly A labeled “unsta- tion is more of such State. had in the courts tutory” “unconstitutional.” than case, arguments whatever the theoretical criteria be met the Act’s must Ail four be, authority in might appellate all of the Zucker, F.Supp. at 751. 373 apply. See it to upholds feder- point of we are aware which that all court concluded The district cases al rate where It present in this case. were four elements statutory pre- claim of federal substantial met requirement had been the first held emption pleaded. declaratory in sought Freehold because Light Missouri Co. v. Arkansas Power & basis the BRC’s junctive on the relief (8th Comm’n, 1444, F.2d Pub. Serv. 829 1449 The court preempted PURPA. order Cir.1987) (citations omitted).5 concluded, apparent Freehold “[i]t Thus, statutorily-based preemption that the Or jurisdiction on the basis alleges invoking provide not a basis for claim does the Federal Constitution repugnant tо der is deprive Act to a federal court Supremacy the Johnson claims that since jurisdiction. way Because case does give that the Order mandates Clause prong Act of the Johnson meet first PURPA.” 1980); Kentucky Virginia v. Gas Co. Cir. West Co. v. Public Utils. Tel. also Hawaiian See Comm'n, F.Supp. Cir.1987), (9th Pennsylvania 620 Comm'n, Pub. Util. 1273 827 F.2d (M.D.Pa.1985), other rev'd on denied, 1460-61 101 S.Ct. cert. Cir.1986). (3d grounds, Serv., 791 F.2d (1988); Inc. Pub. New Orleans L.Ed.2d Orleans, (5th 1242-42 782 F.2d v. New Kentucky Virginia, the defendant did not West Cir.1986), grounds, part on other withdrawn John- appeal court’s decision that the the district denied, (5th Cir.1986), 481 cert. F.2d 858 deprive jurisdiction, 798 it of so son Act not did 1910, 1023, 515 L.Ed.2d 107 S.Ct. 95 U.S. cited did discuss the issue. The cases court not (1987); contrary Co. America v. Utilities by Aluminum none are not to the JCP & L because of Carolina, 1024, Rather, they 1028 713 F.2d preemption North claims. Comm’n (4th of them involve of denied, 1052, 1983, Cir.1983), gra- § 465 104 cert. U.S. involve 42 U.S.C. claims under 1326, (1984); International is a violation of federal constitu- L.Ed.2d 722 vamen of which 79 S.Ct. Workers, John- rights. BRC has not raised the No. 1245 v. tional The Local Union Elec. Bhd. of Comm’n, 206, (9th appeal. Act 210 son issue 614 F.2d Serv. Public analysis, necessary it not dispute for this court to PPA, rather, under the but pre- a remaining prongs. reach the emption against claim Thus, the BRC. district court in holding erred that the PPA

C. supports finding jurisdiction that it lacks hear this matter.6 The district court further concluded that it subject jurisdiction lacked matter because

the PPA contains a choice provision of forum III. providing disputes that all arising under the The argue defendants that if PPA the federal by be would resolved either the BRC or jurisdiction courts have abstention is in- Jersey a New state court. The court applicable, this court should not address the reasoned: merits of preemption question, but parties provided that the PPA “shall should remand consideration to the dis- governed by be construed accor- trict court. JCP L argues & also that dis- dance with the laws of the State of New missal is mandated because Freehold’s claim Jersey applicable to contracts made and to is moot and ripe adjudica- otherwise not State, be performed irrespective that of tion. JCP & and the additionally BRC application any of conflicts of laws assert that disputes there are over material Further, provisions.” parties preclude facts that any grant of summary “agree[d] disputes arising that all under judgment for Freehold and there are no “ex- not parties [the PPA] resolved between the ceptional circumstances” justifying a resolu- by petition shall be decided to the BRC tion this court of Freehold’s motion for competent jurisdiction court of in the summary judgment. Jersey of State New and [Freehold] here- submits itself to the hand, On the other Freehold asserts that or such purposes.” court for such claim adjudication its is ripe for as a matter PURPA and its do not of law because the BRC has subjecting been prevent waiving statutory Freehold from it administrative, to extensive state utility- rights, 292.301(b)(1), see 18 C.F.R. type hearings rate require- and disclosure may legally thus Freehold consent to have ments since vigorous- March 1994. Freehold disputes PPA heard in ly argues state court. The that there are no factual issues to provisions choice law and choice of forum in addressing considered legal ques- quoted by court, however, the district merely preemption, tion of appellees and that agreed demonstrate that Freehold to submit have ample opportunity had every to make disputes arising under PPA argument they to either the that could in against defense competent jurisdiction BRC or a court of of Freehold’s claim that preempts PURPA Jersey, the State of gave New up BRC’s order. only Freehold notes that the its right exempt to be from alleged state laws and dispute factual the BRC and regulation. complaint Freehold’s demon JCP & L have been able to claim before this strates this is not an action to resolve a court “regulatory whether the so-called appeal, Muir, 6. On 356, JCP & L also (3d contends that a feder- Auto. Asso. v. 792 F.2d 360-61 Cir.1986), denied, 1031, resolving al court should abstain from the merits 479 cert. U.S. 107 S.Ct. 875, (1987). possesses this case even if it 93 L.Ed.2d 830 matter The doctrine of jurisdiction. discretionary predicated disagree. upon abstention is We policy comity: equity federal should federal courts of Harris, 37, Younger under Abstention v. 401 U.S. discretionary power their exercise with (1971), 91 27 S.Ct. L.Ed.2d 669 v. proper Burford independence consideration Co., Sun Oil 63 S.Ct. 87 government carrying state governmen out its (1943) L.Ed. and Railroad Texas v. Com. case, however, tal funсtions. In our concern Co., Pullman U.S. carrying statutory is with out a federal scheme (1941) extraordinary L.Ed. 971 is "an and nar- promoting development of alternative exception row duty adju- to the district court's alleged sources. The intrusive action is not it, controversy properly justified dicate a but, government, before contrary, by on the only exceptional in the circumstances where re- regulatory agency. a state We conclude that proceedings clearly sort impor- appropriate serves an abstention is not in this case and countervailing tant interest.” United Services does not warrant extended discussion. 1188 (3) Slip. op. judgment. that the of modify Free- and BRC to permits the clause out” however, at Freehold, rates. contractual

hold’s clause dis- “regulatory-out”, that the counters the question no here about There can be factfinding be- requires adversity parties’ no additional interests. JCP & pute of the simple modify con- the PPA it entered only a contract to alter or seeks cause it involves 26, 1992. The Freehold on March the into with caрable of on resolution issue struction BRC, contract con- approved had which is agree; the clause PPA. We face of the implementation re- with PURPA’s sistent evi- requires no extrinsic unambiguous and Freehold subsequently directed quirements, for its construction. dence renegotiate purchase the & L to and JCP are ex- that there also contends alternative, or, PPA in price of the the terms that mandate here ceptional circumstances buy of PPA. Freehold negotiate a out preemption court of the disposition price renegotiation purchase of the rejected a court. to the district without remand issue buyout by L. PPA and a JCP & terms of the project has cogeneration It claims that then, commenced an ex- the BRC has Since time-consuming already delayed been evidentiary proceeding to consider tensive and costly proceedings before the BRC action, including modi- of various courses immeasurably to the every day adds approval of the or revocation of its fication argues that interest projeсt’s cost. Freehold appeal, litigation and on Free- PPA. In this rising, equipment and construction rates are diametrically opposed to position is hold’s legal Thus, costs of increasing, and the costs are there is an the defendants. that of controversy are “of im- action before the BRC concrete sufficient this action and the actual reality the issuance mediacy and to warrant pro- from the escalating, while the revenues Army declaratory judgment.” of a Salvation constructed, the life of ject, are fixed for if Community Affairs, 919 Department v. L. with JCP & of the contract (3d Cir.1990) 183, (quoting v. ‍‌‌​‌‌​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​‌​​‌​‌‌​​​​​‌​​‌‌‍192 F.2d Steffel 1209, 452, 460, 94 S.Ct. Thompson, 415 U.S. A. (1974)). 1216, 505 39 L.Ed.2d ongoing proceed light of the Furthermore, court will judgment of this BRC, no merit what ings we see before whether the It will determine be conclusive. is argument the issue to the soever ex- conflict with or are proceedings ripeness, question moot. As of law pressly preempted as a matter v. in Abbott Labs. Supreme stated Court 210(e) imple- and FERC’s of PURPA 1507, Gardner, 18 87 S.Ct. Moreover, per- menting we are rules. (1967), leading discussion on its L.Ed.2d 681 developments at the BRC that factual suaded subject, in again reitеrated Pacific anything legal to the proceedings would add Energy Resources Gas & Elec. Co. v. State of PURPA. construction Comm’n, 461 U.S. & Dev. Conservation Finally, for consideration there remains 1713, 1720, L.Ed.2d 752 103 S.Ct. test, part Step-Saver three the last of (1983), question ripeness turns that the judgment. Freehold con- utility of such a judicial decision” “the fitness of the issue proceed- that the BRC’s vincingly contends hardship parties of withhold and “the ability to obtain Freehold’s ing impeding Labs., 387 Abbott ing court consideration.” facility jeopardizes not financing at 1515. U.S. at PPA, project’s financial only the but also the Jersey Orthodox Presbytery New viability. Florio, 40 F.3d 1454 Presbyterian v. Church delay argues that additional Freehold also (3d Cir.1994), adopted the three this court meet the construc- impossible make it Systems, Step-Saver Data part test from project deadlines contained tion and other F.2d Wyse Technology, Inc. v. argument permits. This contracts (3d Cir.1990), we whether to determine experi- It takes but little very persuasive. engage pre-enforcement review would lend- to realize that in financial markets ence declarаtory judgment large action: of a not lend a borrower ing the context institutions will (2) underly- (1) interests, money life of the adversity parties’ when the of the sums litiga- threatened extensive ing project is judicial judgment, the conclusiveness litigation tion.7 While the BRC has been in In Middle Energy, South Inc. v. Arkansas process appeal Cir.1985), pending, and this the Federal Comm’n, (8th Pub. Serv. 772 F.2d 404 Bank Reserve has interest increased rates denied, 1102, rt. 474 U.S. ce six times.8 Additional costs because of the 884, (1986), 88 L.Ed.2d 919 complaint delay interest, only in but also in mate- —not aiso raised preemption challenge to state rial and labor costs—are irrecoverable under proceedings. case, inAs plaintiff did Moreover, the terms of the PPA. Freehold challenge the state’s ultimate substantive damages cannot recover from the if BRC it deeision, but rather its to eonduct prevails on the merits. proceedings to determine whether it should Co., Gas & Elec. Pacific declare void ab certain initio contracts en question 103 preemption S.Ct. of by utility tered into pertaining pur arose under where California’s circumstances power from, chase of payment or for con regulating role of generation traditional of, struction power plant nuclear in Missis production and sale of electrical challenged a sippi. The court concluded that it “can hard complex promote federal scheme to the de- ly be doubted controversy that a sufficiently velopment of civilian energy. nuclear The judicial concréte for review exists when the plaintiff utilities filed an in action the federal proceeding sought enjoined to be is already seeking court district a declaration that cer- progress.” Id. at 410-11. tain California were invalid under We also conclude that the issue Supremacy here they Clause because were ripe adjudication. preempted by The Energy proceedings the Atomic Act of be- Ripeness fore became an issue in the the BRC have ongoing fed- been for nearly eral courts because the year. state administrative one The interest that Freehold seeks agency yet had not proceedings resolvеd the proceeding vindicate right is the disposing issue, it. ripeness before of the be free from “state ... laws respecting the Labs, the Court examined the Abbott test of rates ... of electric utilities” and from the judicial the “fitness of the issue for decision” expense, delay, uncertainty inherent hardship “the parties of withhold- If, administration of such laws. as Free- ing court consideration” and concluded that insists, hold ongoing proceedings both finding factors favored a that the issue regulation constitute state rates and ripe adjudication. It stated: the burdens on Freehold occasioned those question pre-emption predomi- The proceedings are the kinds of burdens which nantly .legal, and although it would be use- Congress QFs intended spared, to be Con- ful to have the benefit of California’s inter- gress’ mandate would be if frustrated Free- pretation of what constitutes a demonstrat- right judicial hold’s review post- were technology ed disposal means for the poned. There is a dispute concrete that has high-level waste, nuclear resolution of the already worked a hardship upon severe Free- pre-emption issue need not await that de- hold, and a legal determination issue of velopment. Moreover, postponement of preemption need not await further devel- likely decision would work substantial opments before the BRC. hardship on the utilities. Id. at S.Ct. at 1720-21. The Court B. that one noted does not have to await the The impact rely BRC and JCP ultimate of the & injury threatened preventive Equibank, obtain relief. The N.A. v. Wheeling-Pittsburgh imminence of Steel injury (3d is sufficient. Corp., Cir.1989), 884 F.2d proposed In the submission to the BRC of the 8. See 80 Fed.Reserve Bulletin 610 and 913. See joint agreement modification dated Woodruff, November jolts also E. up, John Fed interest rates 1993, between Freehold and the Staff of the Sun, 16, 1994, (discuss- The Baltimore Nov. at 1A Commissioners, Regulatory Board represented, ing the Federal increases in Reserve's interest representation and this was undis- during rates 1994 and their effect on consumers puted, expeditious approval joint businesses). agreement necessary go "is so that Freehold can Project Financing. lending forward with the company will not make commitments until the issue of rate reduction is resolved." only may not be law A state generally has de- this court proposition by Congress, when but preempted expressly not decid- that were issues to address clined Fidelity exceptional cir- law. absent federal court it conflicts with by the trial ever ed however, Cuesta, de- we Equibank, In v. de la Ass’n cumstances. Federal Sav. and Loan they merits because the 141, 153, to address clined 102 S.Ct. 458 U.S. and by parties the fully briefed (1982). not been Supremacy had the Under L.Ed.2d 664 might been re- factfinding have additional Constitution, a States of the United Clause contrast, the In by the district court. quired scope the of its agency acting within sought sum- in case complaint this original delegated has the congressionally legal question on the sole mary judgment and ren regulation preempt to power state BRC’s order preempted the PURPA whether local laws which or der unenforceable state previ- hearing on Freehold’s directed which with federal are otherwise inconsistent fully parties have rate. ously approved FCC, Com. v. Public Sеrvice law. Louisiana in the dis- this issue repeatedly briefed and 1890, 1898-99, 355, 368-69, 106 S.Ct. 476 U.S. they engaged sub- also court where trict (1986). course, appli the L.Ed.2d 369 Of merits. More- argument the oral on stantial requires a preemption the doctrine cation of to, increasing over, the alluded previously as congressional intent in en determination imposed rising costs pressure and financial That intent is not acting a federal law. delay, protracted the because of on Freehold congres express necessarily dependent financial rates in the escalating interest the par nullify to or render authorization sional market, that the entire probability and the an tially wholly inconsistent or unenforceable remand, if we longer be viable project will no regulation. also occurs law or It state war- exceptional circumstances constitute legislated comprehen Congress “where has preemption is- of the ranting our resolution reg occupying the field of sively, thus entire sue.9 to leaving room for the States and no ulation law, IV. state or where the supplement federal accomplish an stands as obstacle law mer to examine the task is not Our objectives full ment and execution controversy between JCP underlying the 368-69, at at 1898- Congress.” Id. the PPA over whether L and Freehold & omitted). (citation in 1993 now negotiated and executed claim of fraud altered. revised and No opin- previously stated have As we nego alleged in the fact mistake of is mutual ion, Federal Congress the Power modified must the PPA. We tiation and execution of Act, gave the FERC exclusive authori- which preempted only whether PURPA determine engaged in regulate public utilities the ty to order, January di the dated in inter- power at wholesale sale of electric pur renegotiate recting parties commerce, part by enacting as PURPA or, in the alter of the PPA chase rate terms solve legislative effort to comprehensive of a buyout of native, appropriate an negotiate crisis and thus reduce energy nationwide PPA, and failing the BRC would which on fossil fuels. dependence nation’s pending now be proceedings commence did PURPA, FERC to Congress directed the that it does.10 it. conclude fore We Inc., they Prods., analyzed ling or briefed as circumstances Motor Co. v. 9. Ford Motor Summit are here. (3d Cir.), sub nom. Altran den. 930 F.2d 277 cert. Co., 939, 112 S.Ct. Corp. v. Ford Motor dispute held that before The district court (1991), Virgin Islands 116 L.Ed.2d 324 presumed arises the PPA the BRC under Virgin Land Islands Bd. Soc. v. Conservation Freehold, preemption. was not it Cir.1989), (3d cited Appeals, Use 881 F.2d PPA; however, dispute no under has filed proposition are no that there JCP & L protect complaint court in the district justifying “exceptional the reso- circumstances” integrity the PPA from unwarranted terms Freehold’s motion lution this court of attempting to The BRC intrusion BRC. inapposite. In both of summary judgment fully are having the PPA after alter terms of cases, only non-appealable decided that it would approved these court order. it in a fined time on claim can for the first that Freehold’s not consider an issue raised We do not believe dispute under the correctly as a compelling be characterized appeal circumstances. without compel- PPA. was the matter of neithеr of these cases promulgate regulations requiring public utili- isdiction over the PPA and the charged rates buy energy ties to electric from and to sell Freehold thereunder.' argument This qualifying cogeneration electric fa- upon based the BRC’s 'unsuccessful effort in hearings, Congress cilities. After extensive late 1993 joint to formulate agreement energy problem concluded that the was na- between parties modifying the PPA scope required tionwide and therefore JCP & also asserts that in the course of regarding “federal standards retail ongoing sale of the proceeding initiated the BRC electricity, attempts as well as federal PPA, to review the the reviewing BRC is encourage conservation and make documentary efficient evidence testimony and con- v. energy use of scarce FERC resources.” cerning the meaning of “regulato- the PPA’s Mississippi 456 U.S. at ry-out” S.Ct. at clause. L JCP & maintains that the 2136. regulatory-out grants clause the BRC con- tinuing jurisdiction over Finally, rates. JCP Section 210 of PURPA sets forth the bene- argues L& that PURPA express contains no QFs fit to which are entitled. It creates a preemption clause and implied that preemp- energy by requiring market their that the tion is not lightly presumed. fact, to be In it regulations obligate FERC establish that argues that presumption there is a against public utilities to sell energy electric to and finding preemption of state law in areas tra- purchase energy electric from QFs. ditionally regulated by the states. 824a-3(a). 210(b) § requires U.S.C. Section the promulgate regulations FERC to Athough to en- the required states are under the purchases sure that the rates for these “shall statutory federal implement scheme to the just rules, 210(e) be and reasonable to the electric con- federal section of PURPA re- utility sumers of the electric public in the quires prescribe the FERC rules ex- may interest.” These rates not exceed the empting QFs “from state regula- laws and incremental utility cost to the purchasing respecting rates, tions the respecting the Id. at energy. § alternative electric 824a- organizational financial or regulation of elec- 3(b).11 utilities, tric or from combination of the foregoing, if the Commission determines Pursuant requiremеnts, PURPA’s the exemption necessary such encourage regulations FERC issued which define the cogeneration power and small production.” operating minimum efficiency and standards 824a-3(e)(l). § 16 U.S.C. As discussed earli- cogeneration facilities must meet and er, the promulgated regulations, FERC pur- they the benefits to which are entitled. 18 210(e)(1) PURPA, suant to section exempt- §§ C.F.R. 292.101-.211. regulations The ing QFs from various federal regu- and state also QF authorize the FERC to revoke sta- latory requirements. tus for non-compliance application with its empower and the FERC to operating waive The BRC concedes that in adopting the efficiency and upon showing standards regulation exempting cogenerators from QF produces significant the energy savings. utility regulation, state the FERC described 292.205(e). Id. at § Additionally, regula- the exemption heart, the as broad. It takes purchase tions address energy by the utili- however, in language stating FERC that the ties, and the paid QF cost to be exemption is “not intended to divest a State supplying guidelines the and for cal- regulatory agency of its to review culаting Id. at § such costs. 292.301-.308. purchases contracts for part regula- as of its Thus, implementing regula- PURPA and the 12,233 tion of electric Fed.Reg. utilities.” 45 tions establish an system extensive federal (Feb. 1980). The BRC misunderstands encourage regulate and the sale of electrical 210(a) interplay between sections and energy by QFs. 210(e). dispute There is no here that section 210(f) JCP & claims that it gives and Freehold regulatory vol- pow- state authorities untarily agreed implement continuing jur- to the BRC’s er to requirements of section Where, here, long-term, as the PPA has incremental avoidable cost at the level it has on price, may fixed tension arise between ‍‌‌​‌‌​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​‌​​‌​‌‌​​​​​‌​​‌‌‍this problem con- the date the PPA is effective. Whatever protective provision is, however, FERC, sumer of PURPA and the create a matter for regulation permitting FERC parties p. to hold not the See BRC. also infra by the fact, regulations promulgated in the regulations.

210(a) the relevant 210(e)(3) reg- ease, QF applicable plaintiff and the As section FERC. both 292.602(c)(2), expressly ulation, 18 C.F.R. entered into contracts the utilities QFs law that exemptions from limit energy. electric purchase sale 210(e): QFs simply are enjoy section under terms and contained standardized contracts state laws exempt from QFs. paid to be the rates 210(f) and, with to section pursuant enacted program created utilities and CPUC 210(a). it, section utilities to monitor the which authorized implementation Thus, ease concerns if a operating and effi- compliance with federal 210(f), contemplated section procedures they QFs ciency with which standards covered properly the action then If a determined that contracts. had therefore, and, 210(g), operating and effi- QF did not meet federal Here, on the other improper. would standards, to sus- ciency was authorized of FERC’s hand, implementation BRC’s in specified the payment of the rates pend ended with 210(a)-type regulations section a lower alternative and substitute contract PPA. approval of the July 1992 the BRC’s Energy modify Producers chal- Independent the attempt to either rate. present The “utility- approval is contending revoke that the lenged program, or PPA regula- type the of type” regulation exactly authority and the state is exclusive FERC’s — immune under is which Freehold tion from by federal law. The preempted program is 210(e). explanatory note the As section disagreed and held there was court district the states, do not disturb regulations the preemption. no agencies “to regulatory authority of state It appeals reversed. conclud- The court of long so as purchases” review contracts carry out the regulations with the ed that the FERC are “consistent regulations those terms, practices of sections policies and in its exclusive au- statutory reposed scheme imple- [FERC’s] and 201 of PURPA and QF for the thority make determinations the or regulations. If menting compliance QF status or waive revocation of conflict, ... the must in State is exercise they standards, that nowhere QF and with requirements.” Federal yield to the setting for the state “contemplate a role restriction, the legislative QF determining Absent status.” QF or standards prior asserts, of its reconsideration BRC also policy, of held that at 854. For Id. reasons in the au inherent PPA is approval of the maker is neces- federal decision a “uniform agencies and not thority all administrative that the public interest and sary” in the unique to rate- necessarily a characteristic by preempted program federal CPUC instance, However, in this making bodies. Id. law. statutory legislation, specific federal is there Cogener in Smith of the issues raised One pri- the PURPA, bars reconsideration Corporation some Inc. v. Management, at least absent of the PPA ation approval setting aside (Okla.1993), law of contracts Comm’n, in the is basis P.2d 1227 even referred to here. PPA. No such basis the A rule of analogous to this case. the more and of PURPA the overall scheme on Based required Corporation Commission Oklahoma 210(e) especially and goal, its stated to include their QFs electrical utilities and promulgated rules implementing the and purchase con cogeneration non-negotiated Congress intended FERC, we hold that the allowing reconsider provision a notice tracts from state qualified cogenerators exempt Corporation ation and modification utility regulations. rate costs after the con of avoided Commission support our conclusion. eases Two recent cogenera upon. The agreed tract had been Producers, 36 F.3d Independent Energy Corporation Commission argued that the tor injunc- sought an Energy Producers directly with PURPA rule conflicted prevent court to in the federal district tion discouraged cogenera regulations, FERC Commission Public Utilities California tion, preempted federal law. Al and was order which (“CPUC”) implementing an from acknowledged that though cogenerator au- defendant-utilities delegated to the implement authority to states have broad and effi- operating thority to enforce federal utility-type reg- PURPA, any it insisted that in PURPA ciency out requirements set directly they cogenerator in than did the Smith. cogeneration contracts ulation over Smith, cogenerator yet did not have with PURPA. conflicted contract; signed pre- Freehold does and the here, eogenerator does As Freehold emption precisely issue is the same. Be- any argued attempt to revisit Smith sides, disregard impact we cannot contract, changed as a result of cogeneration cogeneration financing purchase power if a circumstances, QFs deprives of the benefits agreement is at time in the future sub- rule, that the state unless bargain ject arbitrary reconsideration waived, as a direct obstruction stands body. regulatory financing pro- necessary obtain the Finally, the defendants maintain Corporation and the ject. The Commission preemption inappropriate because contrary. argued to the utilities voluntarily agreed JCP & L and Freehold court, examining after The Oklahoma exempt They the PPA from PURPA. note regulations and preamble to the FERC correctly regulations specifically that FERC PURPA, concluded that reconsideration voluntary agreements contemplate outside of long contracts with established estimat- term PURPA’s umbrella. See 18 C.F.R. imposes utility-type over ed costs 292.301(b); Paper see also American In QFs. regulations seek “PURPA and FERC stitute, Inc. v. Americаn Electric Power Ser contracts. prevent reconsideration such 402, 416, Corp., vice history con- legislative behind PURPA (1983) (stating 76 L.Ed.2d that “a impose Congress did not intend to firms that qualifying facility utility may negotiate and a concepts utility type rate-making traditional a contract” that constitutes “a waiver” of by qualifying facilities to utilities.” on sales PURPA). Freehold, They claim that in a Accordingly, court held Id. at 1240-41. the clause,12 “regulatory-out” agreed to waive its that and FERC PURPA 210(e) 292.602(c)(1) and 18 C.F.R. rule. preempted the State Commission rights regulation from state to be free rate or attempts distinguish case L to this JCP & law. ground that the chal- from Smith on the noted, As we have insofar as the issues in impact financ-

lenged in would on rule Smith concerned, “regula- this are we find the case case, “pre- in BRC’s ing, but that the merely tory-out” unambiguous. It de- clause PPA have no financing review of the will happen scribes would in the event that what illusory. impact.” Such a distinction is such L during 20-year contract term JCP & the preemp- court did not rest its The Oklahoma any right pass lose its to should for reason holding merely impact the of the tion on this clause ratepayers. costs on to its When financing, primarily rule on but Commission clearly agreed upon, parties the did not parties obligation rights on the and of the expect right could be as a result that this lost change contract. in the negotiated under a and executed of BRC action absent some important aspect Here, strongly governing law.13 But the favor Freehold more the facts Seller, (i) parties perti- option “regulatory-out” provides of the the hereto shall clause in 12. The promptly negotiations thereafter commence to part: nent Agreement approximately amend this to re- 20.2(a) recognize parties and acknowl- paid by Company the to be the duce rates agreement edge to be that this and the rates energy capacity and to such hereunder for energy paid and [Freehold] to the Seller for governmental other rates as the BRC or such upon capacity Facility premised are agency exercising jurisdiction shall have au- subject Company's [JCP L] to the & con- and Company through oper- thorized the to recover tinuing ability timely fully recover from charges paid Energy Adjustment ation of its Levelized customers all such costs and its (“LEAC”) timely basis Clause ... on full capacity hereunder for Seller (ii) (30) days upon thirty prior written no- or throughout Consequently, the in term hereof. Company, the terminate tice to the Seller BRC, any the event that the the FERC or party Agreement and neither shall have judicial, legislative, or other administrative liability obligation any or hereunder further governmental agency having jurisdiction over except prior due to the date of for amounts parties, in ... should disallow in whole or termination.... timely part impair or otherwise the full and PPA, recovery Company approving customers of from its BRC’s 1992 order 13. In the any energy capacity payments and its successors to made or the BRC committed itself hereunder, then, flow-through fully and “allow JCP & L to to the Seller at the be made and/or Light Company in present purposes is this clause does Central Power & juris- any purport to confer the BRC having above-entitled case been submitted to par- otherwisе have. diction it would not judges participated who in the decision of ticular, part of it no intent on the reflects this Court and to all the other available any protection of the surrender judges regular circuit the circuit active upon regulation conferred from state rate service, judge and no who concurred in the 210(a). by section having rehearing, decision asked for and a majority judges of the circuit of the circuit V. regular having active service not voted for summary, that the we conclude district banc, rehearing by petitions the court in jurisdiction court had matter to con- rehearing are denied. jurisdic- claims and that the sider Freehold’s 210(g) tional limits of section of PURPA did jurisdiction of this action. We also

not bar

hold that the district court erred conclud- precludes

ing that the Johnson Act

jurisdiction and Freehold’s claim in- solely dispute subject

volves contractual utility regulatory of the state CO., INC.; KIEWIT EASTERN agency under the choice of law and forum Kiewit/Perini, a Joint provisions reject argu- PPA. We Venture, any of the abstention doctrines

ment that et al. any proceedings. apply in manner to these v. Finally, approved hold that once thе BRC we CO., INC.; L R& CONSTRUCTION power purchase agreement between Company ground Freehold and JCP & on the CNA Insurance cost, the rates were consistent with avoided Company, Eastern Kiewit Inc. and or order to reconsider action Kiewit/Perini, Venture, A Joint approval deny passage of those Appellants pur- in No. 94-1434 rates to JCP & L’s consumers under ported preempted by fed- Company, Appellant CNA Insurance eral law. in No. 94-1439 order of the district court will be

The remanded with di- reversed and the ease 94-1434, Nos. 94-1439. summary judgment in favor rection to enter Appeals, United States Court appellant pro- and for such further Third Circuit. ceedings opinion. with this as are consistent against appellees. Costs taxed Argued Sept. SLOVITER, Judge, Chief Before: Decided Jan. BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, NYGAARD, ALITO, ROTH,

COWEN, McKEE, SAROKIN,

LEWIS,

ROSENN, Judges. Circuit

SUR PETITION FOR REHEARING

March petitions rehearing by appel- filed ‍‌‌​‌‌​‌​‌‌​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​‌​​‌​‌‌​​​​​‌​​‌‌‍Regulatory lees the Board of Commissioners

n Jersey, of the State of New the Division of Advocate, Ratepayer Jersey and the timely specified readjust [the PPA] recover rates states that the BRC contract will resulting and the costs therefrom....” preclude through. rates or flow July Stipulation A upon by relied and Settlement approving present the BRC in PPA

Case Details

Case Name: Freehold Cogeneration Associates, L.P. v. Board of Regulatory Commissioners of New Jersey

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 9, 1995

Citation: 44 F.3d 1178

Docket Number: 94-5168

Court Abbreviation: 3rd Cir.