United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2005 Decided July 22, 2005
No. 03-1252
SOUTHERN COMPANY SERVICES, INC.,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
WILLIAMS POWER COMPANY INC.,
INTERVENOR
Consolidated with
04-1269
On Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Andrew W. Tunnell argued the cause for petitioner. With
him on the briefs was Jennifer M. Buettner.
Dennis Lane, Solicitor, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on the
brief was Cynthia A. Marlette, General Counsel.
Alex A. Goldberg was on the brief for intervenor.
2
Before: GINSBURG, Chief Judge, and TATEL and GARLAND,
Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Petitioner Southern Company
Services, Inc., an agent for five electric utilities, challenges
orders of the Federal Energy Regulatory Commission (FERC)
that rejected two of Southern’s agreements to roll over
transmission service. FERC rejected the agreements because
they limited the ability of Southern’s customers to roll the
agreements over again upon their expiration. According to
FERC, any restrictions that a transmission provider wants to
impose on rollover rights must be included in the original
service agreement between the parties, not in the rollover
agreements themselves. Southern argues that FERC did not
announce this “original agreement” requirement until after
Southern entered into the relevant original service agreements,
and that applying it to those agreements is therefore arbitrary
and capricious. FERC contends that the requirement was
contained in two industry-wide orders issued prior to the
execution of Southern’s original service agreements -- Order
Nos. 888 and 888-A -- and that Southern’s objections thus are
untimely collateral attacks on those orders.
There are two separate agreements at issue here: one
between Southern and Williams Energy Marketing & Trading
Company, and another between Southern and Oglethorpe Power
Corporation. We conclude that Southern’s petition regarding
the Williams orders is moot because the Williams agreement has
since expired. We conclude that Southern’s petition regarding
the Oglethorpe orders, however, is neither moot nor a collateral
attack on Order Nos. 888 and 888-A. And because we find that
FERC’s original agreement requirement was not contained in
either Order No. 888 or Order No. 888-A, and FERC offers no
3
other reason why the requirement is properly applied to the
Oglethorpe agreement, we vacate the Oglethorpe orders as
arbitrary and capricious.
I
In 1996, FERC issued an order, widely known as “Order
No. 888,” that restructured the wholesale electric power market
by requiring all jurisdictional public utilities to unbundle
wholesale electric power services and to provide open-access
nondiscriminatory transmission services. See Promoting
Wholesale Competition Through Open Access
Nondiscriminatory Transmission Services by Public Utilities;
Recovery of Stranded Costs by Public Utilities and Transmitting
Utilities, FERC Stats. & Regs. ¶ 31,036 (1996), 61 Fed. Reg.
21,540, on reh’g, FERC Stats. & Regs. ¶ 31,048, 62 Fed. Reg.
12,274 (“Order No. 888-A”), on reh’g, 81 F.E.R.C. ¶ 61,248
(1997) (“Order No. 888-B”), on reh’g, 82 F.E.R.C. ¶ 61,046
(1998) (“Order No. 888-C”), aff’d, Transmission Access Policy
Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff’d sub
nom. New York v. FERC, 535 U.S. 1 (2002).
Among its numerous provisions, Order No. 888 generally
requires utilities to allow their firm transmission customers to
roll over service agreements1 that have a duration of one year or
longer. See Order No. 888, FERC Stats. & Regs. ¶ 31,036, at
31,665 (“[A]ll firm transmission customers . . . , upon the
expiration of their contracts or at the time their contracts become
subject to renewal or rollover, should have the right to continue
to take transmission service from their existing transmission
provider.”). This provision gives those customers a “limited
1
“A service agreement is a type of form contract that sets out the
contract terms between the parties to a particular service transaction.”
FERC Br. at 6 n.3.
4
right of first refusal” to “match the rate offered by another
potential customer.” Id. Order No. 888-A, which addressed
petitions for rehearing and clarification of Order No. 888,
announced the following exception to this rule:
[I]f a utility provides firm transmission service to a
third party for a time until native load needs the
capacity, it should specify in the contract that the right
of first refusal does not apply to that firm service due
to a reasonably forecasted need at the time the contract
is executed.
Order No. 888-A, FERC Stats. & Regs. ¶ 31,048, at 30,198. In
other words, transmission providers can limit customers’
rollover rights if they so specify “in the contract.” Id.
In Nevada Power Co., issued on December 20, 2001, FERC
used new language to describe how a provider should specify
the reservation of transmission capacity, stating that “such
reservations for native load should be included in the original
transmission service agreement.” 97 F.E.R.C. ¶ 61,324, at
62,492 (emphasis added). The following year, FERC issued a
Notice of Proposed Rulemaking that sought to change the
wording of the pro forma tariff -- originally issued as part of
Order Nos. 888 and 888-A -- to incorporate this “original
agreement” requirement. Remedying Undue Discrimination
Through Open Access Transmission Service and Standard
Electricity Market Design, Notice of Proposed Rulemaking, 100
F.E.R.C. ¶ 61,138, ¶¶ 121-23, app. A (2002).
Southern is a transmission provider, and two of its
agreements form the basis of the disputes here. In October
2001, Southern and Oglethorpe signed a contract for firm
transmission service to go into effect on December 1, 2001 and
expire one year later. Oglethorpe sought to roll over the
5
agreement before it expired, and in response Southern filed an
executed rollover agreement with FERC on December 20, 2002.
The rollover agreement included a provision conditioning
Oglethorpe’s right of first refusal -- i.e., its right to demand
future rollovers -- on (inter alia) the “availability of sufficient
transmission capacity after . . . [specified other] [c]ustomers
exercise their rights to transmission service” and “after the
allocation of capacity to meet the Transmission Provider’s
native load needs.” Southern Co. Servs., Inc., 103 F.E.R.C. ¶
61,117, at 61,371 (2003) (“Oglethorpe Order”). On May 2,
2003, FERC accepted the filing but required Oglethorpe to
remove the limitation on rollovers, stating: “Since issuing Order
Nos. 888 and 888-A, the Commission has consistently
reaffirmed” that “any limitations to rollover rights must be
stated clearly in the original transmission service agreement.”
Id. Because the rollover service agreement submitted by
Southern added “language that was not in the original service
agreement,” the limiting language was deemed unacceptable.
Id.
On May 30, 2003, Southern submitted a compliance filing
under protest, along with a petition for rehearing that challenged
the “original agreement” requirement. Southern contended that
the requirement was a new policy, first announced in Nevada
Power, and that it was arbitrary and capricious to apply it
retroactively where a transmission provider -- like Southern --
had entered into an original service agreement before that case.
FERC disagreed, insisting that the requirement was not new, and
that Southern’s request for rehearing was “basically a collateral
attack on the Commission’s rollover rights policy as established
in Order No. 888.” Southern Co. Servs., Inc., 108 F.E.R.C. ¶
61,174, at 62,040 (2004) (“Oglethorpe Order on Reh’g”).
During and subsequent to these proceedings, Oglethorpe
continued to make rollover requests -- one on September 25,
2003, and another on September 29, 2004 -- so that the service
6
agreement between it and Southern is still in effect. See
Southern Supp. Br. at 7.
Similar circumstances attended Southern’s transmission
agreement with Williams. In October 2002, Williams requested
a rollover of its original one-year service agreement, and
Southern filed with FERC an unexecuted rollover agreement
that placed limitations on future rollovers. In orders similar to
those addressing the Oglethorpe agreement, FERC accepted the
filing subject to elimination of the rollover limitations, see
Southern Co. Servs., Inc., 102 F.E.R.C. ¶ 61,201 (2003), and
then denied rehearing, see Southern Co. Servs., Inc., 104
F.E.R.C. ¶ 61,140 (2003). “Southern’s arguments to limit
Williams’ rollover rights,” the Commission said, were “virtually
identical to those arguments raised” in the Oglethorpe case, and
FERC rejected them for the same reason: the limitations “were
not included in the original transmission service agreement.”
Southern Co. Servs., Inc., 102 F.E.R.C. ¶ 61,201, at 61,591.
Unlike Oglethorpe, however, Williams did not make a
subsequent rollover request, and the agreement between
Southern and Williams expired on December 31, 2003. See
FERC Br. at 22; Southern Br. at 46 n.23.
Southern now petitions for review of FERC’s orders,
arguing that they are arbitrary and capricious because Southern
had no notice of the “original agreement” requirement when it
entered into its original agreements with Oglethorpe and
Williams, and that the requirement impairs its ability to provide
reliable transmission services.
II
We begin with the question of mootness, as it is a
“threshold jurisdictional issue.” Coalition of Airline Pilots
Ass’ns v. FAA, 370 F.3d 1184, 1189 (D.C. Cir. 2004).
7
Southern’s challenge to FERC’s Oglethorpe orders plainly is not
moot, since a rolled-over Oglethorpe agreement remains in
effect. The Williams agreement has expired, however, and
Southern agrees that there is no live controversy regarding that
agreement.
Nonetheless, Southern contends that its challenge to
FERC’s orders regarding the Williams agreement meets the
mootness exception for cases that are “capable of repetition, yet
evading review,” Spencer v. Kemna, 523 U.S. 1, 17 (1998).
This exception applies if: “(1) the challenged action [is] in its
duration too short to be fully litigated prior to cessation or
expiration, and (2) there [is] a reasonable expectation that the
same complaining party [will] be subject to the same action
again.” Id. (alterations in original) (internal quotation marks
omitted). The burden is on the petitioner to show that these
requirements are met. See Public Utils. Comm’n v. FERC, 236
F.3d 708, 714 (D.C. Cir. 2001). Here, we need not examine the
second prong because Southern cannot satisfy the first.
In deciding whether challenged actions can be fully litigated
prior to their expiration, we have recognized that “orders of less
than two years’ duration ordinarily evade review.” Burlington
N. R.R. Co. v. STB, 75 F.3d 685, 690 (D.C. Cir. 1996). Southern
claims that the Williams orders meet this requirement because
the Williams rollover agreement expired after only one year. It
also points to a prior challenge to the rollover policy that we
dismissed as moot because the agreement at issue there had also
expired. See Southern Co. Servs., Inc. v. FERC, No. 03-1106,
2003 WL 22669559 (D.C. Cir. Nov. 7, 2003).
This court has emphasized that, when reliance on the
mootness exception is based on the short duration of an order,
the question is whether such a short duration is “typical” of the
controversy. See In re Reporters Comm. for Freedom of the
8
Press, 773 F.2d 1325, 1329 (D.C. Cir. 1985); see also Spencer,
523 U.S. at 18 (holding that a challenge to a parole revocation
did not satisfy the mootness exception because the petitioner
“ha[d] not shown . . . that the time between parole revocation
and expiration of sentence is always so short as to evade
review”). The two instances cited by Williams do not suffice to
show that orders regarding rollovers will typically evade review.
Southern has not established that rollovers typically last less
than two years, or that rollovers are not typically rolled over
again for a total duration of more than two years. Indeed, the
vitality of Southern’s other petition in this very case (its
challenge to FERC’s Oglethorpe agreement) makes clear that
Southern can fully litigate a challenge to FERC’s “original
agreement” requirement while a rollover agreement -- and
FERC’s order regarding such an agreement -- remains in effect.
We therefore conclude that Southern has failed to show that
FERC actions like the one at issue in Southern’s Williams
petition will typically evade review. Accordingly, we dismiss
the Williams petition as moot and vacate the corresponding
FERC orders. See A.L. Mechling Barge Lines, Inc. v. United
States, 368 U.S. 324, 329-30 (1961).2
2
Because the only relief Southern has requested is vacatur of the
Williams orders and reinstatement of the limitations Southern had
placed in the (now expired) Williams rollover agreement, see Southern
Br. at 50; Southern Reply Br. at 30, we have no occasion to consider
whether a challenge to FERC’s ongoing policy would have permitted
this court to issue declaratory or injunctive relief despite the expiration
of the agreement. Compare Southern Co. Servs., Inc., 2003 WL
22669559, at *1 (holding that Southern’s challenge to the original
agreement requirement as applied to another rollover agreement was
moot because the agreement had expired, and that Southern lacked
standing to challenge the ongoing requirement itself because it had
“not shown that it faces the kind of actual or imminent injury required
for Article III standing to pursue such a challenge” (internal quotation
9
III
Section 313 of the Federal Power Act gives this court
jurisdiction to review an order of the Commission only if an
aggrieved party files a petition with the court within sixty days
of the issuance of the order. See 16 U.S.C. § 825l(b). FERC
contends that the original agreement requirement was part of
Order Nos. 888 and 888-A, and that because Southern’s petition
in this case came years later, its challenge is an untimely
collateral attack on those orders. See City of Nephi v. FERC,
147 F.3d 929, 934 (D.C. Cir. 1998).
The question of whether Southern is collaterally attacking
prior orders depends on whether those orders gave “‘sufficient
notice’” of the rule to which Southern now objects. Dominion
Res., Inc. v. FERC, 286 F.3d 586, 590 (D.C. Cir. 2002) (quoting
East Texas Cooperative v. FERC, 218 F.3d 750, 754 (D.C. Cir.
2000)). As the Supreme Court has recognized, if the challenged
order “revised” the prior order, then it can be reviewed; if it is
a mere “clarification,” then it cannot. ICC v. Brotherhood of
Locomotive Eng’rs, 482 U.S. 270, 286 (1987). We have
explained that “self-evidently the calendar does not run until the
agency has decided a question in a manner that reasonably puts
aggrieved parties on notice of the rule’s content.” RCA Global
marks omitted)), and Entergy Servs., Inc. v. FERC, 391 F.3d 1240,
1246 (D.C. Cir. 2004) (holding that petitioners do not have standing
to challenge FERC’s “At or Beyond” rule until “they are confronted
with it in a matter before the Commission regarding a ‘live’
interconnection agreement”), with City of Houston v. Department of
Hous. & Urban Dev., 24 F.3d 1421, 1429 (D.C. Cir. 1994) (noting
that, “if a plaintiff’s specific claim has been mooted, it may
nevertheless seek declaratory relief forbidding an agency from
imposing a disputed policy in the future, so long as the plaintiff has
standing to bring such a forward-looking challenge and the request for
declaratory relief is ripe”).
10
Communications, Inc. v. FCC, 758 F.2d 722, 730 (D.C. Cir.
1985); see Sam Rayburn Dam Elec. Coop. v. FPC, 515 F.2d
998, 1007 (D.C. Cir. 1975) (holding that a petitioner must object
“as soon as it could reasonably have become aware of the
import” of the order). An objection is considered a collateral
attack only if “a reasonable firm in [petitioner’s] position ‘would
have perceived a very substantial risk that the [order] meant’
what the Commission now says it meant.” Dominion Res., 286
F.3d at 589 (quoting ANR Pipeline Co. v. FERC, 988 F.2d 1229,
1234 (D.C. Cir. 1993)).
With these principles in mind, we turn to the orders in this
case. FERC’s reference to Order No. 888 as a source of the
original agreement requirement is unhelpful: although Order
No. 888 set forth the right of transmission customers to roll over
their contracts, it was not until Order No. 888-A that FERC
announced the exception that is at issue in this case. Order No.
888-A allows transmission providers to place certain limitations
on customers’ rights of first refusal if the limitations are
specified “in the contract . . . at the time the contract is
executed.” Order No. 888-A at 30,198. According to FERC,
Southern should have known that “contract” means only the
original service agreement, and does not include subsequent
rollover agreements.
But there is nothing in the language of the Order No. 888-A
exception to put Southern on notice that the “contract” it
references is the original service agreement alone. Regardless
of whether rollover agreements are new contracts or extensions
of the original, there is no doubt that they are themselves
“contracts.” See BLACK’S LAW DICTIONARY 341 (8th ed. 2004)
(defining a “contract” as “[a]n agreement between two or more
parties creating obligations that are enforceable or otherwise
recognizable at law”); cf. 15 U.S.C. § 3301(12) (using the term
“rollover contract” in the natural gas context). As FERC
11
explained in a 2000 order, “[b]y exercising a right of first refusal
an existing transmission customer is, in effect, arranging a new
long-term firm point-to-point transmission service.” Entergy
Power Mktg. Corp. v. Southwest Power Pool, Inc., 91 F.E.R.C.
¶ 61,276, at 61,936 (2000). Nor does the fact that the limitation
must be imposed “at the time the contract is executed” suggest
that the exception is inapplicable to rollovers, since rollovers --
like original service agreements -- are “executed” by the parties.
See, e.g., Oglethorpe Order on Reh’g at 62,039 (referring to the
Oglethorpe filing as an “executed rollover service agreement”).
Moreover, the balance of Order No. 888-A repeatedly uses
the term “contract” in contexts that unmistakably encompass
rollover agreements. The Order states, for example, that “the
Commission reaffirms its decision” to give an existing firm
transmission customer “served under a contract of one year or
more, a reservation priority (right of first refusal) when its
contract expires.” Order No. 888-A at 30,197 (emphases
added). Since FERC expressly intends the right of first refusal
to apply not just to the original agreement but also to each
rollover as it expires, see, e.g., Southern Co. Servs., Inc., 110
F.E.R.C. ¶ 61,191 (2005) (disallowing rollover limitations made
in a successive rollover agreement), the word “contract” is
plainly used in both senses. Similarly, the pro forma tariff
attached to Order No. 888-A (as well as No. 888) states that
existing firm service customers “have the right to continue to
take transmission service from the Transmission Provider when
the contract expires, rolls over or is renewed.” Order No. 888-A
at 30,511 (emphasis added). The fact that “the contract . . . rolls
over” makes clear that it remains “the contract” even after
rollover. Indeed, the tariff’s insistence that the reservation
priority “is an ongoing right that may be exercised at the end of
12
all firm contract terms of one-year or longer,” id. (emphases
added), makes sense only as a reference to repeated rollovers.3
FERC maintains that accepting Southern’s position would
“eviscerate” the right of first refusal, because it would “allow[]
providers to restrict rollover rights at the very time when they
are to be exercised.” FERC Br. at 32. But this unfairly
characterizes Southern’s argument. Southern does not contend
that it can restrict a right of first refusal that is currently being
exercised under an agreement that previously had no
restrictions. Rather, as is clear in the Oglethorpe filing that
FERC rejected, Southern seeks to add a limitation to the rolled-
over agreement that would not take effect until the next rollover.
Finally, we note that our conclusion is supported by the
Notice of Proposed Rulemaking that FERC issued in 2002,
which sought to codify the original agreement requirement
announced in Nevada Power. See Notice of Proposed
Rulemaking, 100 F.E.R.C. ¶ 61,138, ¶¶ 121-23, app. A. Unlike
Order No. 888-A, which states that a provider may “specify in
the contract that the right of first refusal does not apply to that
firm service due to a reasonably forecasted need at the time the
contract is executed,” Order No. 888-A at 30,198 (emphasis
added), the Notice proposed that a “Transmission Provider may
decline a Customer the ability to roll over its firm transmission
service . . . only if the Transmission Provider includes in the
3
The word “contract” is used in the same fashion throughout
Order No. 888 as well. See, e.g., Order No. 888 at 31,665 (stating that
firm transmission customers have the right to continue to take
transmission service “upon the expiration of their contracts or at the
time their contracts become subject to renewal or rollover”); id.
(stating that the right of first refusal “is an ongoing right that may be
exercised at the end of all firm contract (including all future unbundled
transmission contracts) terms”).
13
original service agreement a specific, reasonably forecasted
need for the transfer capability to serve load growth at the end
of the term of the service agreement.” Notice of Proposed
Rulemaking at app. A (emphasis added). The Notice
characterized this and two other changes not just as
“clarifications,” id. ¶ 121, but as “revisions [that] have a
significant impact on the rights of current transmission
customers,” id. ¶ 123 (emphases added), and it “propose[d] to
require public utilities to make the tariff changes to Section 2.2
of the existing pro forma tariff,” id. (emphasis added). This
characterization of its actions by the agency itself confirms that
the original agreement requirement does not derive from Order
No. 888-A, but rather constitutes a new FERC policy. Cf.
Kansas Cities v. FERC , 723 F.2d 82, 86 (D.C. Cir. 1983)
(Scalia, J.) (basing jurisdiction in part on FERC’s description of
its prior order).
We therefore conclude that Southern’s objection to the
original agreement requirement is not a collateral attack on
Order Nos. 888 or 888-A. Accordingly, there is no
jurisdictional bar to our considering the merits of FERC’s
rejection of the rollover limitations that Southern sought to place
in the Oglethorpe agreement.
IV
Under the Administrative Procedure Act, we must set aside
an agency action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The arbitrary and capricious standard requires an
agency to “examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
14
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)). Moreover, agency action “must be upheld, if at all, on
the basis articulated by the agency itself.” Id. at 50.
In its initial Oglethorpe order, FERC disallowed the
limitations in the rollover agreement solely on the ground that
the original agreement requirement had been announced in
Order Nos. 888 and 888-A. Oglethorpe Order at 61,370.
“Since issuing Order Nos. 888 and 888-A,” FERC said, it had
“consistently reaffirmed its policy . . . that a transmission
provider can deny a customer the ability to roll over . . . only if
the provider includes in the original service agreement a
specific limitation based on reasonably forecasted native load
needs.” Id. (emphasis in original). Because the limiting
language “was not in the original service agreement,” FERC
required Southern to remove it. Id.
In Southern’s request for rehearing, the company contended
that the original agreement requirement was not contained in
Order Nos. 888 and 888-A, but rather was a new policy
announced for the first time in Nevada Power -- a decision that
was not issued until after Southern executed its original service
agreement with Oglethorpe. Oglethorpe Order on Reh’g at
62,040. It would be arbitrary and capricious, Southern argued,
to apply a policy that did not exist at the time the parties entered
into their original agreement. Moreover, such application would
impede Southern’s ability to operate its transmission system
reliably. Southern asked that the new policy be applied, at most,
on a prospective basis. Id.
Again, FERC’s sole response was that Southern’s “claim
that the May 2, 2003 Order is based on a change in the
Commission’s rollover policy that did not exist at the time
[Southern] executed its original service agreement with
Oglethorpe is in error.” Id. Southern’s “request for rehearing,”
15
FERC said, was “basically a collateral attack on the
Commission’s rollover rights policy as established in Order No.
888.” Id. And because FERC believed that Order Nos. 888 and
888-A had given transmission providers adequate notice, it
concluded that “any reliability issues that Southern Companies
might face would . . . be the result of its failure to follow the
requirements” of those Orders to reserve sufficient transmission
capacity in the original service agreement. Id. at 62,043.
In sum, FERC’s orders do not give any reason, other than
their insistence that Order Nos. 888 and 888-A put Southern on
notice of the original agreement requirement, for denying
Southern the right to place limitations in its rollover agreement
with Oglethorpe. They offer no rationale for applying the
requirement to a rollover when the provider did not know of the
requirement at the time it executed the original service
agreement. And they make no argument that system reliability
can still be assured if the requirement was imposed without
adequate notice. Accordingly, because we have concluded that
Order Nos. 888 and 888-A did not put Southern on notice of the
original agreement requirement, and thus that Southern did not
know of the requirement until after it executed its original
agreement with Oglethorpe, the agency is left with no reason for
rejecting Southern’s proposed rollover agreement. Because this
court “cannot sustain agency action on grounds other than those
adopted by the agency in the administrative proceedings,”
Macmillan Publ’g Co. v. NLRB, 194 F.3d 165, 168 (D.C. Cir.
1999) (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)), the
absence of a valid rationale renders FERC’s Oglethorpe orders
arbitrary and capricious. See, e.g., Fox Television Stations, Inc.
v. FCC, 280 F.3d 1027, 1043 (D.C. Cir. 2002).
Finally, we note that this case does not present the question
of whether it would be arbitrary and capricious for FERC to
apply its original agreement requirement to a case involving an
16
original agreement executed after the requirement was
announced in Nevada Power. Accordingly, we do not reach that
question.
V
For the foregoing reasons, we dismiss Southern’s Williams
petition and vacate FERC’s Williams orders as moot. Further,
we grant Southern’s Oglethorpe petition and vacate and remand
FERC’s Oglethorpe orders as arbitrary and capricious.
So ordered.