Allco Renewable Energy Ltd. v. Massachusetts Electric Co.

United States Court of Appeals
For the First Circuit

No. 17-1296

ALLCO RENEWABLE ENERGY LIMITED,

Plaintiff, Appellant,

v.

MASSACHUSETTS ELECTRIC COMPANY, agent of National Grid;
ANGELA M. O'CONNOR, individually and in her official capacity as
Chairperson of the DPU; JOLETTE A. WESTBROOK, individually and
in her official capacity as Commissioner of the DPU;
ROBERT HAYDEN, individually and in his official capacity as
Commissioner of the DPU; JUDITH JUDSON, individually and in her
official capacity as Commissioner of the MDER,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Torruella, Thompson, and Barron,
Circuit Judges.

Eric L. Christensen, with whom Cairncross & Hempelmann, P.S.,
Thomas Melone, and Allco Renewable Energy Limited were on brief,
for appellant.
Michael Kunselman, with whom Alston & Bird LLP, Anthony J.
Marchetta, and Day Pitney LLP were on brief, for appellee
Massachusetts Electric Company d/b/a National Grid.
Timothy J. Casey, Assistant Attorney General, Government
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for state appellees O'Connor, Westbrook, Hayden, and
Judson.
November 13, 2017

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 TORRUELLA, Circuit Judge. This case arises from the

efforts of Allco Renewable Energy Limited ("Allco") to enforce

section 210 of the Public Utility Regulatory Policies Act

("PURPA"), 16 U.S.C. § 824a-3, against Massachusetts Electric

Company d/b/a National Grid ("National Grid"). The district court

dismissed Allco's claim against National Grid because section 210

does not provide a private right of action against utility

companies (such as National Grid). The district court was

correct, so we affirm that dismissal. Allco also appeals the

district court's denial of its motion for additional relief against

various Massachusetts Department of Public Utilities (MDPU)

officials (collectively, the "state defendants") after the

district court invalidated certain MDPU regulations as

inconsistent with PURPA. The district court did not abuse its

discretion in doing so, so we affirm that decision as well.

I. BACKGROUND
A.
We begin with an overview of the statutory scheme at the

heart of this case. Congress passed PURPA in 1978 in response to

the ongoing energy crisis that plagued the nation. FERC v.

Mississippi, 456 U.S. 742, 745 (1982). Section 210 of PURPA seeks

to lessen the United States' reliance on oil and natural gas by

encouraging the development of energy-efficient cogeneration and

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small power production facilities. Id. at 750. See 16 U.S.C.

§ 824a-3. "Cogeneration facilities capture otherwise-wasted heat

and turn it into thermal energy; small power-production facilities

produce energy (fewer than 80 megawatts) primarily by using

'biomass, waste, renewable resources, geothermal resources, or any

combination thereof.'" Portland Gen. Elec. Co. v. FERC, 854 F.3d

692, 695 (D.C. Cir. 2017) (quoting 16 U.S.C. § 796(17)). Both of

these categories of facilities are known as "qualifying

facilities" ("QFs") under PURPA.

Congress found that traditional electric utilities'

reluctance to transact with these nontraditional facilities posed

an obstacle to facilitating their development. FERC, 456 U.S. at

750. It sought to address this by requiring utilities to do so.

Thus, section 210(a) of PURPA directed the Federal Energy

Regulatory Commission ("FERC") to promulgate rules mandating that

electric utilities purchase energy from QFs. 16 U.S.C. § 824a-

3(a). Those rules, section 210(b) specified, were not to "provide

for a rate which exceeds the incremental cost to the electric

utility of alternative electric energy." Id. § 824a-3(b). PURPA

defines "incremental cost" as "the cost to the electric utility of

the electric energy which, but for the purchase from such

cogenerator or small power producer, such utility would generate

or purchase from another source." Id. § 824a-3(d). In accordance

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with this directive, FERC promulgated regulations requiring

utilities to purchase electricity from QFs "at a rate equal to the

utility's full avoided cost." Am. Paper Inst. v. Am. Elec. Power

Serv. Corp., 461 U.S. 402, 405-06 (1983) (citing 18 C.F.R.

292.304(b)(2)). Crucially, given section 210's purpose, the

avoided cost rate "usually exceeds the market price for wholesale

power." Portland Gen., 854 F.3d at 695. Additionally, section

210(f) of PURPA instructs state regulatory authorities to

implement these FERC rules. 16 U.S.C. § 824a-3(f); see also

Portland Gen., 854 F.3d at 695 ("Under PURPA, state utility

commissions are responsible for calculating the avoided-cost rates

for utilities subject to their jurisdiction").

Key to this case is understanding PURPA's framework for

enforcing its requirement that states implement FERC's PURPA-

implementing rules. Sections 210(g)-(h) of PURPA create "an

overlapping scheme of federal and state judicial review of state

regulatory action taken pursuant to PURPA." Greenwood ex rel.

Estate of Greenwood v. N.H. Pub. Utils. Comm'n, 527 F.3d 8, 10 n.1

(1st Cir. 2008). First, PURPA allows a QF to petition FERC to

bring an enforcement action against a state on the grounds that

the state has failed to properly implement PURPA. 16 U.S.C.

§ 824a-3(h). With respect to private enforcement, PURPA's

enforcement scheme contemplates two types of private actions

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against a state utility regulatory agency: "implementation"

challenges and "as-applied" challenges. Exelon Wind 1, L.L.C. v.

Nelson, 766 F.3d 380, 388 (5th Cir. 2014); Power Res. Grp., Inc.,

v. Pub. Util. Comm'n of Tex., 422 F.3d 231, 234-35 (5th Cir. 2005).

Implementation challenges involve claims that a state

agency has failed to properly implement FERC's regulations

governing the purchase of energy from QFs. Power Res. Grp., 422

F.3d at 235. As-applied challenges, meanwhile, involve claims

that a utility has failed to abide by a state's regulations

implementing PURPA. See Portland Gen., 854 F.3d at 698 (citing

16 U.S.C. § 824a-3(g)(2)). While federal district courts have

exclusive jurisdiction over implementation challenges, only state

courts may hear as-applied challenges. Id. Additionally, an

individual seeking to bring an implementation challenge may only

do so after having petitioned FERC to bring an implementation

enforcement action, and only if FERC has not initiated an action

within sixty days of receiving the petition. 16 U.S.C.

§ 824a-3(h)(2)(B).

Finally, and crucially, PURPA's text does not make any

reference to the possibility of a QF bringing any sort of action

against a utility in federal court.

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 B.
On March 28, 2011, Allco offered to sell National Grid

the entire generation output from eleven of its solar energy

generating QFs located in Massachusetts. These QFs all have a

production capacity between one and thirty megawatts. Consistent

with Mass. Code Regs. § 8.03(1)(b)(2), Allco offered to negotiate

a purchase agreement with National Grid. On April 18, 2011,

National Grid declined to negotiate a contract with Allco, but

offered instead to purchase Allco's energy under its standard power

purchase contract. The methodology for arriving at the price rate

in National Grid's standard contract complied with the relevant

MDPU regulations governing that calculation. See 220 Mass. Code

Regs. § 8.05(2)(a).

On August 3, 2011, Allco, pursuant to 220 Mass. Code

Regs. § 8.03(1)(c), petitioned the MDPU to investigate the

reasonableness of National Grid's response to Allco's offer.

Allco further requested a declaration that National Grid was

legally obligated to purchase energy from Allco's QFs for a term

of twenty-five years, at the rate of its avoided costs, calculated

using the rate-forecasting methodology the MDPU employed in a

specific 2010 proceeding. The MDPU denied that petition on

July 22, 2014, finding National Grid's offer to Allco both

reasonable and consistent with its regulations.

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 In response, Allco petitioned the FERC to bring an

enforcement action against MDPU on the grounds that MDPU's

regulations clashed with PURPA. FERC declined to do so. Under

PURPA, that allowed Allco to sue the MDPU. See 16 U.S.C.

§ 824a-3(h)(2)(B).

C.

On October 6, 2015, Allco sued National Grid and the

state defendants in the District of Massachusetts. Allco

contended that the MDPU regulations at issue conflicted with FERC's

regulations implementing PURPA. Specifically, it maintained that

the MDPU regulations ran afoul of 18 C.F.R § 292.304(d)(2) in

denying QFs the option of calculating the utility's avoided costs

either "at the time of delivery" or "at the time the obligation is

incurred." Allco also sought a declaration that National Grid had

a "legally enforceable obligation" to buy the output of Allco's

QFs for a twenty-five-year term, at the rate of National Grid's

long-term avoided costs. Finally, Allco requested damages from

National Grid for its lost income. National Grid moved to dismiss

Allco's complaint for failure to state a claim. Allco moved for

summary judgment of its claims against National Grid and the state

defendants.

Meanwhile, at the district court's request, FERC filed

an amicus brief. In that brief, FERC "decline[d] to provide a

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definitive opinion as to the specific question of whether [MDPU's]

regulations are consistent with PURPA, or with FERC's

implementation of PURPA." In lieu of taking a definitive stance

on any of the questions before the court, the brief only generally

discussed those issues in broad terms.

The district court granted Allco's motion for summary

judgment of its challenge to the MDPU's regulations. It denied

Allco's motion for summary judgment of its claim for damages and

declaratory relief against National Grid. Finally, it granted

National Grid's motion to dismiss those claims. Specifically, the

district court concluded that Allco did not have a private cause

of action to enforce National Grid's obligation to purchase its

QFs' output. Allco Renewable Energy Ltd. v. Mass. Elec. Co., 208

F. Supp. 3d 390, 395-97 (D. Mass. 2016). The district court then

denied Allco's motions for reconsideration and additional relief

against the state defendants. Allco appeals the district court's

dismissal of its claims against National Grid and denial of further

relief against the state defendants.

Lastly, after the district court struck down its

regulations as inconsistent with PURPA, the MDPU initiated a

rulemaking to satisfactorily replace those regulations.

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 II. ALLCO'S EFFORTS TO SUE NATIONAL GRID TO ENFORCE PURPA'S
"MUST-BUY" OBLIGATION
Allco contends that under PURPA, National Grid has "an

obligation to purchase all energy offered by Allco," and that it

may sue National Grid to enforce that obligation.

As an initial matter, section 210 of PURPA expressly

authorizes three types of enforcement actions: (1) implementation

challenges by FERC against states in federal court, 16 U.S.C.

§ 824a-3(h)(2)(A); (2) implementation challenges by QFs against

states in federal court, id. § 824a-3(h)(2)(B); and (3) as-applied

challenges by QFs against utilities in state court, id. § 824a-

3(g). Allco contends that section 210 also implicitly allows QFs

to sue utilities in federal court to enforce the must-buy

obligation.

Alexander v. Sandoval, 532 U.S. 275 (2001), guides our

analysis. There, the Supreme Court held that "private rights of

action to enforce federal law must be created by Congress." Id.

at 286. When a statute does not contain an express private cause

of action, courts "must interpret the statute Congress has passed

to determine whether it displays an intent to create not just a

private right but also a private remedy." Id. (emphasis added).

Statutory intent is dispositive, and "[w]ithout it, a cause of

action does not exist and courts may not create one, no matter how

desirable that might be as a policy matter, or how compatible with

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the statute." Id. at 286-87. In other words "a private right of

action under federal law is not created by mere implication, but

must be 'unambiguously conferred.'" Armstrong v. Exceptional

Child Center, Inc., 135 S. Ct. 1378, 1387-88 (2015) (plurality

opinion) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)).

Additionally, certain factors cut against finding an

implied private cause of action in a given statute, such as the

existence of other express enforcement provisions. The Court in

Sandoval explained that the "express provision of one method of

enforcing a substantive rule suggests that Congress intended to

preclude others." 532 U.S. at 290. Indeed, "[s]ometimes [that]

suggestion is so strong that it precludes a finding of

congressional intent to create a private right of action, even

though other aspects of the statute . . . suggest the contrary."

Id. (citation omitted); see also Bonano v. East Caribbean Airline

Corp., 365 F.3d 81, 85 (1st Cir. 2004) (holding that Congress's

express provision of a solitary private right of action under the

Federal Aviation Act weighed against finding additional implied

rights). This is doubly so when a statute's express enforcement

scheme is complex, and when agencies play a role in enforcing the

statute. See Armstrong, 135 S. Ct. at 1385 (2015) ("The sheer

complexity associated with enforcing § 30(A), coupled with the

express provision of an administrative remedy . . . shows that the

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Medicaid Act precludes private enforcement of § 30(A) in the

courts.").

Allco, therefore, faces an uphill battle in asserting

that section 210 implicitly provides a private right of action

apart from the enforcement mechanisms it expressly contemplates.

Nonetheless, Allco makes copious arguments to the effect that

Congress must have intended to give QFs a right to enforce PURPA's

"must-buy" obligation against utility companies. We consider its

principal arguments in turn.

First, Allco points to the Supreme Court's comment in

FERC v. Mississippi that states may satisfy their obligations under

section 210 of PURPA, among other ways, "by resolving disputes on

a case-by-case basis." 456 U.S. at 751. This language, it

furthers, implicitly recognized a private right of action against

utilities.

It is difficult to see how recognizing that states may

resolve disputes on a case-by-case basis amounts to recognizing a

private right of action against a utility in federal court. As

National Grid suggests, it makes most sense to understand that

language as referring to state court adjudication of as-applied

challenges. In any event, this line cannot suffice to satisfy

Sandoval's demand for indicia of Congressional intent to create a

private right.

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 Second, Allco, citing Transamerica Mortgage Advisors,

Inc. v. Lewis, 444 U.S. 11, 19 (1979), argues that when Congress

"addresses contract-like rights . . . it intends the customary

legal incidents attendant to those rights to be available[,]

including suit." Thus, because PURPA obligates National Grid to

purchase energy from Allco's QFs, Congress must have intended to

give QFs the means of enforcing that contract-like obligation.

However, Transamerica's holding only addressed Congressional

declarations that "certain contracts are void," in which case "the

customary legal incidents of voidness would follow." Id. Yet,

Allco avers that the Second and Ninth circuits have extended

Transamerica beyond the context of voidness. See First Pac.

Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1123 (9th Cir. 2000);

Oneida Indian Nation v. Cty. of Oneida, 719 F.2d 525, 535 (2d Cir.

1983).

But, this argument is unavailing because no contract

exists between Allco and National Grid. Section 210 of PURPA does

not create a contract. Rather, it merely creates an obligation

to enter into a contract at a regulation-specified cost rate.

Here, Allco and National Grid never agreed upon a cost rate, nor

has any regulation or court set that rate. Indeed, Allco does not

allege breach of contract, not could it, given that no contract

exists. Unlike in the cases Allco cites, this case does not

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involve a contract or other enforceable obligation from which any

"customary legal incidents" could follow.

Third, Allco highlights that section 210 of PURPA

contains "rights-creating language," in addition to an intent to

confer those rights on a specific class of persons. Nothing, it

furthers, indicates that Congress intended to leave those rights

unenforceable. However, Allco inverts the proper analysis. We

don't look for indicia that Congress meant to leave rights

unenforceable. Rather, a right of action only exists where

Congress has clearly intended one. Sandoval, 532 U.S. at 286.

Further, while rights-creating language is a necessary condition

to finding a private remedy, it is alone insufficient to support

an implied remedy. Bonano, 365 F.3d at 84 (citing Gonzaga, 536

U.S. at 283-84). Also relevantly, the court in Sandoval considered

the case of language of this sort. It indicated that the notion

that Congress typically provides an express remedy at the exclusion

of all others can even overcome language "making the would-be

plaintiff a member of the class for whose benefit the statute was

enacted." Sandoval, 532 U.S. at 290 (internal quotation marks

omitted).

Thus, Allco fails to show that Congress, by way of

section 210's rights-creating language, intended to create an

additional remedy to those it established expressly.

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 Fourth, Allco argues that the district court's failure

to find a private federal cause of action against utilities places

QFs with a capacity of over 30MW (which Allco's are not) in a "no

man's land" where they have no remedy. Congress, it argues, could

not have intended this result. Allco bases this argument on

subsection 210(h)(1)'s provision that subsection 210(g)'s state

court adjudication process does not apply to the "operations" of

QFs that are subject to FERC jurisdiction under part II of the

Federal Power Act (FPA). This includes QFs with a production

capacity of greater than 30MW. 18 C.F.R. § 292.601(b).

But, as National Grid correctly highlights, subsection

210(h)(1) specifically provides that in cases of regulatory

overlap between PURPA and the FPA, the challenged PURPA regulation

"shall be treated as a rule under the [FPA]." As a result, the

FPA's enforcement scheme would be available to QFs with a

production capacity of greater than 30MW. Under the FPA, any

person may file a complaint with FERC, 18 C.F.R. § 385.206(a), and

FERC's decision is subject to judicial review in the D.C. Circuit,

16 U.S.C. § 825l(b). This is far from the remedy-less "no man's

land" that Allco alleges. In fact, the very case that Allco relies

on in making this argument describes the process by which QFs with

a production capacity of greater than 30MW may obtain judicial

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review of PURPA regulations that overlap with FPA regulations.

See Portland Gen., 854 F.3d at 697-700.

Fifth, Allco maintains that failing to find a private

remedy against National Grid leaves it stranded in another "no

man's land," where it must "wait and hope that the MDPU takes some

action that would be compliant with PURPA."

Allco overstates the irregularity and gravity of this

situation. The district court entered its order invalidating the

MDPU's regulations on September 23, 2016. In response, the MDPU

commenced a rulemaking on March 21, 2017 to promulgate PURPA-

compliant regulations. The MDPU sought public comment until

April 28, 2017. Allco's eagerness for the MDPU to conclude this

process so that it may enter into a contract with National Grid

under the resulting PURPA-compliant regulations is understandable.

Yet, waiting for the MDPU to promulgate those regulations does not

quite amount to a "no man's land." Allco's rhetorical flourish

ignores the mundane and commonplace nature of waiting for an agency

to conclude a rulemaking process. Indeed, at any given moment,

countless men (among others) can be found in this land of awaiting

finalized agency rules. Allco's temporary visit there does not

show that Congress meant to give it a private right under PURPA.

As the MDPU points out, as soon as it finishes

promulgating the regulations in question, Allco is free to submit

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an offer to National Grid to purchase its generation output. If

the parties fail to reach an agreement within ninety days, and

Allco believes that National Grid has acted unreasonably, then it

may file a petition with the MDPU under 220 Mass. Code Regs.

§ 8.03(1)(c). Allco could then challenge any resulting adverse

MDPU decision in state court. Mass. Gen. Laws ch. 25, § 5.

Moreover, if Allco comes to believe that the MDPU's new rule

violates PURPA, it will be able to petition FERC to bring an

implementation challenge. See 16 U.S.C. § 824a-3(h)(2)(B).

Should FERC decline that invitation, Allco could itself bring an

implementation challenge. Id. If Allco believes that the MDPU's

regulations violate PURPA as applied to its dealings with National

Grid, it will be able to bring an as-applied challenge in state

court.1 Id. at § 824a-3(g).

In other words, the "no man's land" in which Allco

purports to find itself is illusory. And again, even were it not,

that would still fall well short of showing that Congress

unequivocally conferred upon QFs a private right of action against

utilities to enforce PURPA's must-buy provision.

1 Additionally, to the extent that Allco accuses the MDPU of
sitting on its hands or otherwise not acting with sufficient
diligence in promulgating the regulations in question, the proper
remedy would still not be to sue National Grid.

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 Allco's last set of arguments all involve the FPA. In

brief, Allco maintains that it enjoys a private right of action

both under section 210(h)(1) of PURPA -- which, it says, makes the

must-buy obligation privately enforceable as a rule under the FPA

-- and independently under sections 205-06 of the FPA, 16 U.S.C.

§§ 824d, 824e.

Section 210(h)(1) of PURPA provides that:

For purposes of enforcement of any rule prescribed by
the Commission under subsection (a) of this section
with respect to any operations of an electric utility
[or a QF] which are subject to the jurisdiction of
the Commission under part II of the Federal Power Act,
such rule shall be treated as a rule under the Federal
Power Act. Nothing in subsection (g) of this section
shall apply to so much of the operations of an
electric utility, a qualifying cogeneration facility
or a qualifying small power production facility as
are subject to the jurisdiction of the Commission
under part II of the Federal Power Act.

16 U.S.C. § 824a-3(h)(1) (citations omitted). Subsection (h)(1)

therefore accomplishes two things. First, it channels FERC's

enforcement of a certain subset of rules that it has promulgated

pursuant to PURPA -- specifically, those pertaining to QF

operations subject to FERC's jurisdiction under part II of the

Federal Power Act -- into the FPA's enforcement scheme. See

Portland Gen., 854 F.3d at 699. Second, subsection (h)(1) also

prevents QFs from bringing as-applied challenges involving FERC

rules of that sort.

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 Part II of the FPA pertains only to "the transmission of

electric energy in interstate commerce and to the sale of electric

energy at wholesale in interstate commerce." 16 U.S.C.

§ 824(b)(1); see also Portland Gen., 854 F.3d at 697. Even if we

assume that FERC's rules regarding the must-buy obligation are

rules regarding the operations of QFs subject to part II of the

FPA, that would only make those rules enforceable as rules under

the FPA. The question would then become whether the FPA gives

Allco a private right of action to enforce those rules against

National Grid. Accordingly, this argument collapses into Allco's

separate contention that the FPA independently gives it a right to

enforce PURPA's must-buy obligation against National Grid. We

thus need not reach Allco's argument that its potential sales to

National Grid would be subject to regulatory overlap with the FPA

because, even assuming that were correct, its contention that the

FPA would provide it with a private right of action against

National Grid fails.

Turning to that argument that the FPA allows Allco to

sue National Grid, we first note that the FPA's text does not

explicitly confer a private right of action. See 16 U.S.C.

§§ 824d, 824e. Furthermore, we see nothing in that text

indicating that Congress meant to confer such a right, much less

unambiguously. We also note that Allco does not cite any cases

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holding that the FPA contains a private right against a utility.

The same is true of the FPA's sister statute, the Natural Gas Act

(NGA), 15 U.S.C. § 717 et seq., which courts interpret in parallel

to the FPA, Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7 (1981)

(noting that because the FPA and the NGA "are in all material

respects substantially identical," the Supreme Court has developed

an "established practice of citing interchangeably decisions

interpreting the pertinent sections of the two statutes" (quoting

FPC v. Sierra Pac. Power Co., 350 U.S. 348, 353 (1956))).

Moreover, a number of courts have concluded that the NGA

does not contain such a right. See Great Lakes Gas Transmission

Ltd. P'ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329-30 (8th

Cir. 2016); Columbia Gas Transmission, LLC v. Singh, 707 F.3d 583,

587 (6th Cir. 2013); Clark v. Gulf Oil Corp., 570 F.2d 1138, 1150

(3d Cir. 1977). We agree with them, and thus conclude that the

FPA does not provide a private right either. We are especially

comfortable with this conclusion given the elaborate framework for

FERC enforcement that section 206 of the FPA does expressly set

out. See 16 U.S.C. §§ 824m-p. Therefore, because the FPA

resoundingly does not confer a private right, it is of no help to

Allco in its search for a private right to enforce PURPA's must-

buy obligation against National Grid.

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 To wrap up, none of Allco's arguments about PURPA

overcome two fundamental truths about that statute: (1) its text

does not expressly provide for private enforcement of that sort;

and (2) its text does expressly provide for an intricate

enforcement framework, involving both FERC and private litigants,

in state and federal court. Allco's assertion that the FPA gives

it a private right against National Grid is similarly unavailing.

The district court therefore correctly granted National Grid's

motion to dismiss because PURPA does not give Allco a private right

of action against National Grid.

III. ALLCO'S EFFORTS TO OBTAIN ADDITIONAL RELIEF AGAINST THE
STATE DEFENDANTS
We now consider Allco's contention that the district

court should have gone beyond simply invalidating the MDPU's

regulations, and calculated National Grid's avoided costs.

"Judgment calls, including the lower court's choice of equitable

remedies, are afforded substantial deference and will be disturbed

only if the court has made a significantly mistaken judgment."

Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Municipality of

San Juan, 773 F.3d 1, 7 (1st Cir. 2014) (citing Rosario-Torres v.

Hernández-Colón, 889 F.2d 314, 323 (1st Cir. 1989) (en banc)).

The state defendants argue that we lack jurisdiction to

decide this issue because Allco seeks to challenge a judgment that

was in its favorable. However, Allco is not merely trying to

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procure appellate review of statements or findings contained in a

judgment in its favor, as was true in the case on which the state

defendants rely. See Elkin v. Metro. Prop. & Cas. Ins. Co. (In

re Shkolnikov), 470 F.3d 22, 24 (1st Cir. 2006). Rather, Allco

seeks review of what it alleges was an adverse judgment with

respect to the relief granted, and it specifically appeals not

only from the final judgment below, but also from the district

court's order denying further relief.

Allco argues that the district court, in addition to

invalidating the MDPU's regulations, should have itself undertaken

calculating National Grid's avoided cost rate. It highlights that

PURPA authorizes district courts hearing implementation challenges

to "issue such injunctive or other relief as may be appropriate."

16 U.S.C. § 824a-3(h)(2)(B). Arriving at that calculation, Allco

contends, is no different than calculating damages that require

forecasts, something courts regularly do. Were the district court

nonetheless reluctant to do so itself, says Allco, it should have

appointed a special master for the task, or passed the question to

FERC pursuant to primary jurisdiction doctrine.

The district court, in declining to "engage in fact-

finding to determine the proper avoided cost rate," observed that

"[n]othing in the statutory scheme provides this Court with rate-

making authority, and it lacks the expertise to do so." Allco

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Renewable Energy Ltd., 208 F. Supp. 3d at 401 (D. Mass. 2016).

"Rather," it added, "the MDPU has the statutory authority to

revisit its implementation of FERC's rules, either through a new

rulemaking, a case-by-case adjudication, or other reasonable

method." Id. The district court is correct. Because section

210 of PURPA generally contemplates state agencies implementing

FERC's rules for determining avoided cost rates, 16 U.S.C.

§ 824a-3(b), (f), the district court certainly did not abuse its

discretion in leaving that calculation to the MDPU.

Nor does the primary jurisdiction doctrine provide any

indication that the district court abused its discretion. "The

doctrine of primary jurisdiction is a prudential doctrine

developed by the federal courts to promote accurate decisionmaking

and regulatory consistency in areas of agency expertise." Ass'n

of Int'l Auto. Mfrs., Inc. v. Mass. Dep't of Envtl. Prot., 196

F.3d 302, 304 (1st Cir. 1999). Under that doctrine, if a court

determines that an issue falls within the primary jurisdiction of

an agency, the court may refer the issue to that agency and defer

any decision until the agency has come to a conclusion. Id. We

have also remarked that when it would otherwise be appropriate to

stay proceedings and submit a question to an agency, requesting an

amicus brief from that agency may represent a "more efficient and

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expeditious alternative." Distrigas of Mass. Corp. v. Bos. Gas

Co., 693 F.2d 1113, 1119 (1st Cir. 1982).

Here, given that state agencies, not FERC, are

responsible for implementing FERC's rules with respect to

determining specific avoided cost rates, it is far from clear that

this question falls within FERC's "primary jurisdiction" to begin

with. Even setting that aside, it is significant that the district

court solicited an amicus brief from FERC, and that in that amicus

brief, FERC declined to provide a specific contract rate. This

further cements our conclusion that the district court did not

abuse its discretion in limiting itself to invalidating the MDPU

regulations at issue.

IV. CONCLUSION
Allco fails to show that the district court erred in

dismissing its claims against National Grid, because it lacks a

private right against National Grid. So too does Allco fail to

show that the district court abused its discretion in limiting the

relief it granted against the state defendants. Accordingly, we

affirm.

Affirmed.

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