concurring specially.
I write solely to correct what may be some revisionist rewriting of the meaning and history of our past decisions by Justice Bakes in his concurring opinion on two points.
I.
Justice Bakes leaves an incorrect impression by the material he omits from his first quote in footnote 1:
However, as our opinions in Afton III and IV pointed out, and as the majority opinion today acknowledges, under the law of the State of Idaho, “the rates *860contained [in such contracts] may be adjusted by the Commission at any time, if the Commission determines that such an adjustment is “fair, just and reasonable”....
The precise quote from Afton I/III is:
The Commission should apply the fair, just and reasonable standard, in a manner not inconsistent with federal law to the extent that it may be applicable, to determine whether the rates need to be adjusted in this particular type of contract.
107 Idaho at 793, 693 P.2d at 439.
The words “not inconsistent with federal law” are the key to the standard. Although footnote 1 mentions those words in the next sentence, it does so in a way which seeks to minimize their significance by suggesting it is an open question as to whether there is federal preemption which brings those words into play.
In the next paragraph he mischaracterizes Afton III and IV when he states they “... recognized the potential for preemption resulting from the Federal Energy Regulatory Act and the regulations promulgated thereunder.” (Emphasis supplied).
On the contrary, whether there is federal preemption was one of the most hotly contested issues, both by the parties and the members of this Court, and we firmly ruled that PURPA and the regulations under it preempt and control.
The Commission in refusing to adopt Idaho Power’s proffered language was merely carrying out the directives imposed by PURPA and the implementing FERC regulations. (Emphasis supplied).
107 Idaho at 788, 693 P.2d at 434.
Our opinion then proceeds to Section “II Tenth Amendment” where we specifically address and reject Idaho Power’s contention that PURPA preemption would violate the Tenth Amendment by usurping powers reserved to the states.
II.
There is a reason why the matters I discuss are of some significance in the scheme of things. The opening sentence of Afton I/III defined the issue as follows:
The basic issue presented today is whether the Idaho Public Utilities Commission (Commission) has authority to order an electric utility to purchase power from a cogenerator or small power producer (CSPP) for a fixed term according to avoided cost rates previously approved by the Commission.
107 Idaho at 782, 693 P.2d at 428.
The reason PURPA requires fixed term/fixed rate contracts is to promote co-generation by making financing possible. When a utility finances plants by issuing 20-year bonds, those bonds carry a fixed interest rate for their term, which interest rate is not subject to change through the rate-making process from year to year.
The same type of stability is needed by cogenerators and their financing institutions. Thus, the standard we have adopted in Afton I/III creates that stability by not permitting the PUC to change the rate unless the utility is experiencing that extreme level of distress arising to the level of the “public interest review standard” for contract rates. Such is the concept “not inconsistent with federal law” as countenanced by the Public Utilities Regulatory Act — that concept being that the fixed term/fixed rate cogenerator’s contract is subject to price revision only under the most unusual and extreme circumstances.