Boston Edison Co. v. Federal Energy Regulatory Commission

United States Court of Appeals
For the First Circuit

No. 00-1055
BOSTON EDISON COMPANY,

Petitioner,

v.

FEDERAL ENERGY REGULATORY COMMISSION,

Respondent.
__________

NEW ENGLAND POWER COMPANY,

Intervenor.

ON PETITION FOR REVIEW OF ORDERS OF
THE FEDERAL ENERGY REGULATORY COMMISSION

Before

Torruella, Chief Judge,

Wallace,* Senior Circuit Judge,

and Boudin, Circuit Judge.

Carmen L. Gentile with whom James H. McGrew, David Martin
Connelly, Bruder, Gentile & Marcoux, L.L.P. and Neven Rabadjija,
Associate General Counsel, Legal Department, Boston Edison
Company, were on brief for petitioner.
John H. Conway, Acting Solicitor, with whom Douglas W.
Smith, General Counsel, Timm L. Abendroth and Judith A. Albert
were on brief for respondent.
Marvin T. Griff with whom Isaac D. Benkin and Winthrop,
Stimson, Putnam & Roberts were on brief for intervenor.

*Of the Ninth Circuit, sitting by designation.
 December 1, 2000

BOUDIN, Circuit Judge. Before us are two petitions for

review filed by Boston Edison Company concerning contracts

allocating output from, and costs associated with, operation of

its Pilgrim nuclear power station in Plymouth, Massachusetts.

In one case, Boston Edison seeks review of Federal Energy

Regulatory Commission ("FERC") orders reducing its rate of

return on common equity in the Pilgrim plant and directing

refunds to Montaup and Commonwealth Electric Companies. In the

other, Boston Edison claims that amendments terminating its

contracts with Montaup and Commonwealth upon the recent sale of

the Pilgrim plant have extinguished any rights to these refunds.

1. The pertinent facts track the life cycle of the

Pilgrim plant. On August 1, 1972, four months before the unit

became operational, Boston Edison entered into virtually

identical "entitlement" contracts with Montaup and with

Commonwealth, then known as the New Bedford Gas and Edison Light

Company. Each was "entitled" to 11 percent of Pilgrim's output

in return for bearing 11 percent of costs and expenses,

including, as part of "total financing and income tax" expenses,

a return of 13.5 percent on common equity--35 percent of the

original capital for the plant. Boston Edison promptly filed

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both contracts with FERC as Rate Schedules No. 68 (Commonwealth)

and No. 69 (Montaup).

Midway in the Pilgrim's progress from birth to

projected retirement, Boston Edison and Montaup amended their

contract, assertedly to allay Boston Edison's concerns about its

ability to recover its full actual costs and to provide for the

possibility that the plant might outlive the contract's 28-year

term. Effective January 1, 1985, the amendment added

decommissioning pre-charges as an allocable expense and altered

Boston Edison's chargeable return on common equity from 13.5

percent to the return "allowed by the [Massachusetts] Department

of Public Utilities in [Boston Edison's] most recent retail rate

decision."2

The Department of Public Utilities, later renamed the

Department of Telecommunications and Energy, was already

responsible for approving the permissible rates of return on

common equity for the 74.27 percent of Pilgrim's output that

2 Generally, sales of wholesale (i.e., between generating
companies and distributors) electric energy in interstate
commerce are subject to FERC regulation, 16 U.S.C. § 824 (1994),
while retail sales (i.e., between distributors and local
customers) are subject to state regulation, Mass. Gen. Laws ch.
164, §§ 93-94E (1997). See also Town of Norwood v. FERC, 202
F.3d 392, 396 (1st Cir. 2000), petition for cert. filed, 68
U.S.L.W. 3756 (U.S. May 30, 2000) (No. 99-1914). Boston Edison
engaged in both kinds of sales and thus was subject to dual
regulation. [Throughout this opinion cites to 16 U.S.C. are to
the 1994 edition unless indicated otherwise.]

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Boston Edison retailed directly; the 1985 amendment in the

Montaup contract, and similar modifications in Boston Edison's

other entitlement contracts, sought to make the state's

decisions binding as to the remaining 25.73 percent that Boston

Edison sold wholesale.3 The amendment in Commonwealth's

contract, made in 1989, kept its return on equity at 13.5

percent until a pending docket before the state utility

commission set a new rate, or until the next retail decision if

no rate was set in that docket. The Montaup and Commonwealth

amendments, which also made other changes not pertinent here,

were filed with FERC.

As initially filed, the amendments bound Montaup and

Commonwealth to whatever rate the Massachusetts agency approved

for Boston Edison's retail customers, with no upper limit. Each

amendment, however, was followed by Boston Edison's filing with

FERC of a "rate schedule supplement," establishing a specific

ceiling on common equity rates of return. Each supplement said

that if the state agency were to approve a retail rate of return

above the ceiling, Boston Edison "may file" an application with

3In addition to the 22 percent of Pilgrim's output allocated
to Montaup and to Commonwealth, Boston Edison also contracted
with 14 Massachusetts municipal utilities which, in the
aggregate, accounted for an additional 3.73 percent of Pilgrim's
power. Boston Edison Co. v. FERC, 856 F.2d 361, 362 (1st Cir.
1988); see also Boston Edison Co., 62 F.E.R.C. ¶ 61010, at
61,031-32 (Jan. 12, 1993) (listing the municipal systems).

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FERC "pursuant to terms of Section 205 of the Federal Power Act

[16 U.S.C. § 824d(d)] . . . to temporarily modify said ceiling."

Absent such an application, the 1985 supplement fixed

the ceiling for Montaup at 15.25 percent, and the 1989

supplement set the ceiling for Commonwealth at 13.5 percent,

which was also the original and interim contractual rate for

Commonwealth. According to Boston Edison, the state agency

never established a retail rate higher than 12.0 percent; thus

that rate applied to Montaup's contract until its termination in

1999. Similarly, because no new rate resulted from the state

docket pending in 1989, Commonwealth, under its amended

contract, continued to pay at the 13.5 percent rate. The use of

section 205 to lift these ceilings, therefore, remained a moot

issue.

In November 1992, anticipating the substantial costs

of dismantling the Pilgrim nuclear power plant, Boston Edison

filed a petition under section 205 for an increase in

decommissioning expenses. Boston Edison Co., 62 F.E.R.C. ¶

61,010, at 61,029 (Jan. 12, 1993). FERC accepted the increased

charges for filing, but suspended them pending a hearing based

on a preliminary judgment that they might not be just and

reasonable. Id. at 61,030; see 16 U.S.C. § 824d(e). At the

same time, believing that the rates of return being collected on

common equity might be similarly suspect, FERC began an

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investigation into existing rates under section 206(a) of the

Act, 16 U.S.C. § 824e(a).

After a five-day hearing in September 1993, a FERC

administrative law judge ("ALJ") found the additional

decommissioning charges just and reasonable (subject to an

adjustment not here at issue), but the 12.0 and 13.5 percent

returns (applicable, respectively, to Montaup and to

Commonwealth) on common equity "unjust and unreasonable within

the meaning of section 206." Boston Edison Co., 66 F.E.R.C. ¶

63,013, at 65,086 (Mar. 25, 1994) ("Initial Decision"). The ALJ

recommended a new return on common equity of 10.71 percent,

effective from March 20, 1993. In so doing, the ALJ rejected

Boston Edison's argument that, under the so-called Mobile-Sierra

doctrine, the agency could modify the contractual rates only if

they "adversely affect the public interest," Federal Power

Comm'n v. Sierra Pacific Power Co., 350 U.S. 348, 355 (1956);

accord United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350

U.S. 332, 345 (1956).

On December 19, 1996, FERC released its own decision

on review of the ALJ order. Boston Edison Co., 77 F.E.R.C. ¶

61,272, at 62,172-73 (Dec. 19, 1996) (Opinion No. 411). FERC

summarily affirmed the ALJ's conclusion that the just and

reasonable standard pertained, and applying his recommended rate

of 10.71 percent for the period from March 20, 1993, to June 20,

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1994, ordered refunds for that 15-month period pursuant to 16

U.S.C. § 824e(b). FERC also directed Boston Edison to file a

new schedule using a rate of 11.22 percent prospectively (to

reflect a rise in U.S. Treasury Bond yields since the ALJ's

recommendation was made).

FERC subsequently denied Boston Edison's petition for

rehearing. Boston Edison Co., 88 F.E.R.C. ¶ 61,267, at 61,841-

42 (Sept. 20, 1999) (Opinion No. 411-A). The rehearing order is

important, however, because in it FERC provided a new and

distinct rationale for its earlier conclusion that the use of

the just and reasonable standard was consistent with the Mobile-

Sierra doctrine. The overall effect of FERC's two orders was to

require a reduction in Boston Edison rates for Montaup and

Commonwealth and refunds amounting to almost $5 million.

The events bearing on the present case include one

other transaction and separate FERC proceedings. Earlier in

1999 before Opinion No. 411-A issued, FERC in separate dockets

approved Boston Edison's sale of the Pilgrim plant to Entergy.

Boston Edison Co. & Entergy Nuclear Generation Co., 87 F.E.R.C.

¶ 61,034 (Apr. 5, 1999) ("Order on Sale of Facilities, Rate

Filings, and Petition for Declaratory Order"); Boston Edison Co.

& Entergy Nuclear Generation Co., 87 F.E.R.C. ¶ 61,053 (Apr. 7,

1999) ("Order Conditionally Authorizing Sale of Jurisdictional

Facilities"). In these dockets, FERC accepted agreed-to

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"termination amendments" to Boston Edison's entitlement

contracts with Montaup and Commonwealth which stated that the

contracts would be terminated upon Pilgrim's sale, to be

replaced by new arrangements with Entergy. Boston Edison

transferred the Pilgrim plant to Entergy on July 13, 1999.

In its compliance filing made in response to Opinion

No. 411, and in a petition for rehearing of Opinion No. 411-A,

Boston Edison argued that the FERC-approved termination

amendments had extinguished Montaup's and Commonwealth's rights

to the refunds mandated in those opinions. FERC concluded

otherwise and, in a single order, rejected Boston Edison's

compliance filing and request for rehearing. Boston Edison Co.,

90 F.E.R.C. ¶ 61,039, at 61,188 (Jan. 14, 2000) ("Order Denying

Rehearing and Rejecting Compliance Filing").

Boston Edison has now petitioned this court for review

of the orders reflected in Opinions No. 411 and 411-A, and for

review of the January 14, 2000, order. See 16 U.S.C. § 825l(b).

Its central claim is that FERC has no authority to alter the

contract rates, or to order refunds based on such an alteration,

unless FERC first finds that the existing contracts are contrary

to the public interest under Mobile-Sierra. In the alternative,

Boston Edison argues that any refund claims that Montaup and

Commonwealth had under the two opinions were extinguished by the

termination amendments on the sale of the Pilgrim plant. FERC

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and Montaup support the orders under review; Commonwealth, which

is now an affiliate of Boston Edison, stands silent.

2. To understand Mobile-Sierra requires a brief step

back to the regulatory scheme. In regulating electricity rates,

the Federal Power Act follows (with variations) a well-developed

model: 4 the utility sets the rates in the first instance, 16

U.S.C. § 824d(a), subject to a basic statutory obligation that

rates be just and reasonable and not unduly discriminatory or

preferential, id. §§ 824d(a)-(b). FERC, which inherited the

powers of its predecessor (the Federal Power Commission), can

investigate a newly filed rate (section 205, id. § 824d(e)), or

an existing rate (section 206, id. § 824e(a)), and, if the rate

is inconsistent with the statutory standard, order a change in

the rate to make it conform to that standard, id. §§ 824d(e),

824e(a)-(b).

The procedural incidents and FERC's ability to provide

refunds vary depending on whether the proceeding is one to

investigate a new rate filing or an existing rate. For example,

4The first of the major federal rate-regulation statutes was
the Interstate Commerce Act of 1887, 24 Stat. 379. Although now
effectively supplanted as to railroad rates, it provided the
model successively for the regulation of interstate electrical
transmission in the Federal Power Act of 1920, 41 Stat. 1063;
interstate telephone service in the Communications Act of 1934,
48 Stat. 1064; natural gas transmission in the Natural Gas Act
of 1938, 52 Stat. 821; and interstate airline service in the
Civil Aeronautics Act of 1938, 52 Stat. 973.

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in the former case, the burden is on the utility to show that

its rate is lawful, 16 U.S.C. § 824d(e), and, in the latter, the

burden is on the FERC staff or the customer to show that the

rate is unlawful, id. § 824e(b). In both circumstances,

however, the statutory test of lawfulness is phrased in the same

terms. What the Mobile-Sierra decisions did, in certain of the

cases where the utility and its customer have made a contract

governing the rates to be charged, was to drive a wedge between

the two sections, and vary the statutory standard in a way that

no one can discern from the statutory language alone. See

Sierra, 350 U.S. at 355.

Traditionally, contracts fixing utility or carrier

rates have been anathema to the courts because, almost by

definition, they suggest different treatment of similarly-

situated customers in contravention of the basic principle of

non-discrimination. See, e.g., New York v. United States, 331

U.S. 284, 296-97 (1947). But the customers in interstate sales

of electricity and natural gas sales have tended to be big

companies, and negotiated contracts formed a useful means of

allocating risks. When Congress imposed rate regulation in the

Federal Power Act, and then again in the Natural Gas Act, it

acknowledged--in contrast to its initially pure tariff-based

regulation of railroads and telephone companies--that contracts

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between individual parties could also be used to set rates.

See, e.g., 16 U.S.C. §§ 824d(d), 824e(a).

In the Mobile and Sierra decisions, the Supreme Court

sought to mesh this new respect for contracts under the Federal

Power and Natural Gas Acts with the traditional scheme of

regulation. It held that where the electrical utility (or

natural gas company) and its customer have contracted for a

particular rate, and the agency has accepted the contract for

filing and then allowed the rate to become effective, (1) the

utility cannot unilaterally (i.e., without the customer’s

consent) file a new rate under section 205 to supersede the

agreed-upon rate; and (2) the agency’s power under section 206

to alter the existing contract rate under the just and

reasonable standard is also curtailed. Sierra, 350 U.S. at 352-

55; accord Mobile, 350 U.S. at 347 (same as to sections 4 and 5

of the Natural Gas Act). For example, FERC cannot order an

increase in a contracted-for rate merely by finding that the

rate is unreasonably low in the traditional sense that it is

insufficient to produce a reasonable return on capital for the

seller. Sierra, 350 U.S. at 354-55; accord Northeast Utils.

Serv. Co. v. FERC, 55 F.3d 686, 690 (1st Cir. 1995).

Instead, importing a term that does not appear in the

rate regulation provisions of the Federal Power Act or the

Natural Gas Act, the Supreme Court said that the contract rate

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could be raised only if it offended the "public interest"; and

the example given was of a rate so low that it threatened the

survival of the utility, excessively burdened other consumers,

or imposed undue discrimination. Sierra, 350 U.S. at 355. This

solution based on a public interest standard, although created

out of whole cloth,5 makes practical sense when one understands

the facts out of which Mobile and Sierra arose, namely, blatant

attempts to raise rates by sellers in violation of their

contracts. But it left open several further problems, such as

when the contract should be read as setting a binding rate and

what circumstances might justify FERC supplanting a contract

rate as contrary to the public interest.

It is easy enough to understand why Boston Edison

invoked the Mobile-Sierra doctrine. Its original contracts, as

modified by the 1985 and 1989 supplements, initially agreed to

specified rates of return on equity (12 percent to be paid by

Montaup and 13.5 percent for Commonwealth)--rates that, in the

end, were never changed.6 FERC ordered future rate reductions

5The public interest standard is often used in public
utility statutes for deciding whether new facilities may be
built, or a sale or merger approved. E.g., Federal Power Act,
§ 203, 16 U.S.C. § 824b. In these contexts, but not in rate
regulation, practice and precedent supply a measure of content
to the concept.
6Rates of return are not themselves rates in the statutory
sense (e.g., dollars per kilowatt hour) but can be used to
determine the rates. Cf. Richmond Power & Light v. Federal

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for Boston Edison and refunds for the two customers on the

premise that the just and reasonable rates of return were less

than those provided for in the contracts and actually charged.

See 77 F.E.R.C. ¶ 61,272, at 62,171-72. And FERC never found

that the higher rates of return fixed by contract were contrary

to the public interest.

The ALJ's basic answer to Mobile-Sierra, summarily

adopted by FERC in its initial order (Opinion No. 411), was

straightforward. He reasoned that the contractual intent to

disable FERC from using the just and reasonable standard must be

clear, 66 F.E.R.C. ¶ 63,013, at 65,075; that "the rate of return

provision of the Pilgrim contracts contain no restrictions on

changes to the rates for any period of time," id.; that the

agreements contain a general "[Laws,] Regulations and Approvals"

clause making them subject to on-going agency regulation, id.;

and that this clause "[c]learly . . . contemplates review of the

rate of return at any time as the Commission deems necessary"

under the just and reasonable standard, id.

FERC is entitled to some deference in construing

contracts where the sales are subject to FERC regulation.

United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div., 358

Power Comm'n, 481 F.2d 490, 497 (D.C. Cir.), cert. denied sub
no. Indiana & Mich. Elec. v. Anderson Power & Light, 414 U.S.
1068 (1973).

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U.S. 103, 114 (1958); see also Boston Edison Co. v. FERC, 856

F.2d 361, 363 (1st Cir. 1988). But no one reading these

contracts at the time they were written would doubt that the

parties had bargained for a specific rate of return at the

outset or, under the amendments, for a formula or method of

fixing those rates of return. Cf. Richmond Power, 481 F.2d at

497. And the period of time was obviously the duration of the

contract, unless the parties agreed to changes themselves, as

they did in the 1985 and 1989 amendments, or unless FERC

overrode the contracts with a public interest finding.

The Mobile-Sierra doctrine has hung over the electric

power and natural gas industries since 1956, and the two cases

are probably among the dozen best-known public utility decisions

by the Supreme Court in this century. At least until recently,

anyone bargaining in the shadow of the doctrine would assume

that a contract unconditionally setting a fixed rate, or a fixed

rate of return, would be governed by Mobile-Sierra. See, e.g.,

66 F.E.R.C. ¶ 63,013, at 65,073. This was certainly so in 1972

when the Pilgrim plant contract framework was constructed; and

the 1985 and 1989 amendments only varied the method for

identifying the proper rate of return in that formula. Nothing

in the amendments suggests that the parties had a later intent

to enlarge FERC's authority to reduce the contracted-for rates.

The only aspect of the contractual relationship that suggests

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the parties intended any FERC involvement beyond Mobile-Sierra

may be found in the amendment supplements, but those merely give

FERC an option to increase those rates if the state agency

adopts ones above the cap.

In 1972, as today, the parties could negate the

protection afforded by Mobile-Sierra by providing that a

contract rate initially fixed by the parties and filed with FERC

could be overridden by FERC at any time under the just and

reasonable standard. See Memphis Light, 358 U.S. at 112; see

also Papago Tribal Utility Auth. v. FERC, 723 F.2d 950, 953

(D.C. Cir. 1983), cert. denied, 467 U.S. 1241 (1984); Kansas

Cities v. FERC, 723 F.2d 82, 87 (D.C. Cir. 1983). The ALJ said

that the parties had effectively done just this by the "Laws,

Regulations and Approvals" clause. It reads as follows (to make

clear his reasoning, we add the emphasis supplied by the ALJ):

This Agreement is made subject to present
and future Federal, State and local laws and
to present and future regulations and orders
properly issued by Federal, State and local
bodies having jurisdiction; and performance
hereunder is conditioned upon securing and
retaining such Federal, State and local
governmental and regulatory approvals,
grants and permits as may from time to time
be necessary.

66 F.E.R.C. ¶ 63,013, at 65,075.

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 The opening portion of the clause ("made subject to")

is the standard boilerplate inserted by lawyers to protect

against lawful supervening directives. It is very hard to read

it either as adopting the just and reasonable standard for rate

review or as making lawful a FERC rate order that would be

unlawful under Mobile-Sierra. The closing ("performance

hereunder") portion of the clause, which contains the language

underscored by the ALJ, clearly pertains to regulatory actions

such as the grant of a construction or operating license and not

to rate decisions. In short, the rationale of the ALJ, which

FERC initially adopted by cross-reference, is not persuasive.

Our view of the matter accords with the most recent

decision of the D.C. Circuit on both points, namely, that the

specification of a rate or formula by itself implicates Mobile-

Sierra (unless the parties negate the implication) and that a

generally framed boilerplate clause (like the "Laws, Regulations

and Approvals" clause here) does not constitute such a negation.

Texaco, Inc. v. FERC, 148 F.3d 1091, 1096 (D.C. Cir. 1998); cf.

Appalachian Power Co. v. Federal Power Comm'n, 529 F.2d 342, 348

(D.C. Cir.), cert. denied, 429 U.S. 816 (1976). Texaco arguably

impairs the D.C. Circuit's earlier decision in Kansas Cities,

723 F.2d at 86-87, here relied upon by FERC; but that case is

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distinguishable in any event.7 The truth is that the cases, even

within the D.C. Circuit itself, do not form a completely

consistent pattern. Compare, e.g., Texaco, 148 F.3d at 1096,

with Union Pac. Fuels, Inc. v. FERC, 129 F.3d 157, 161-62 (D.C.

Cir. 1997).

On rehearing, FERC reaffirmed its support for the ALJ's

rationale but, understandably uneasy ( Texaco had been decided in

the meantime), offered a new rationale for avoiding Mobile-

Sierra. Reverting to a staff argument mentioned but not relied

on by the ALJ, FERC's rehearing order noted that in the 1985 and

1989 contract amendments, Boston Edison had consented to

numerical caps on the rate of return that governed under the

contracts, even if the state authorized a retail rate above the

cap levels; but the utility had also reserved a right to ask

FERC under section 205 to approve the state-approved, above-cap

rates under a just and reasonable standard. 88 F.E.R.C. ¶

61,267, at 61,841. In short, the contract provided a cap but

also a safety valve.

7
The pertinent contract in Kansas Cities had specified that
one set of rates could not be changed without a public interest
finding and the court inferred by negative implication that the
other set of rates in the contract could be changed without such
a finding, although the court also cited the general purpose
boilerplate clause to shore up its conclusion. Kansas Cities,
723 F.2d at 88-90.

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 FERC said that because this cap and safety valve regime

employed the just and reasonable standard to protect Boston

Edison, it made sense--both as a matter of contract

interpretation and regulatory policy--to employ the same

standard in reviewing rates below the cap. 88 F.E.R.C. ¶

61,267, at 61,841. In reality, it makes sense under neither

criterion, and FERC should not be resorting to such an argument;

it fosters the impression that the agency will say anything it

needs to achieve its ends, ends that could probably be achieved

prospectively with a modicum of forethought, effort, and candor.

Starting with contract interpretation, the cap and

safety valve is a self-contained regime patently designed to

protect interstate purchasers from paying an excessive rate of

return that might be fixed by the state agency in consideration

of local purchasers. Thus a cap was imposed at the top, with no

corresponding minimum floor; but since the cap itself might

prove to be too confining under certain economic conditions, the

safety valve was added to allow Boston Edison to escape the cap

assuming FERC approved. Nothing in this balanced solution

suggests that, in agreeing that the state rate should otherwise

be binding, the parties intended to negate the ordinary, default

rule that Mobile-Sierra governed FERC-proposed changes, Texaco,

148 F.3d at 1096.

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 As to the supposed policy grounds invoked by FERC, FERC

says that Boston Edison is attempting to bind FERC to a

"stricter [public interest] standard than that to which the

party is itself bound," 88 F.E.R.C. ¶ 61,267 at 61,841, the

latter obviously referring to Boston Edison's option to seek to

exceed the cap under the just and reasonable standard. This is

rhetoric rather than policy. Mobile-Sierra's premise is that

the parties can nullify FERC's authority to make changes in

private contracts except when required in the public interest;

if this is so, it is not a further infringement of FERC's

authority for the parties to reserve an area within which FERC

retains limited authority under a different standard (here, just

and reasonable) to police one area of special concern.

Whether and when Mobile-Sierra applies in varying

contexts is going to remain in confusion unless and until FERC

makes up its mind and squarely confronts the underlying issues.

It is not at all clear to us that FERC, which is now becoming

hostile to Mobile-Sierra, needs to tolerate it at all. FERC has

reasonably broad powers to regulate the substantive terms of

filings that it accepts and allows to become effective, whether

they are ordinary tariffs or contracts, see In re Permian Basin

Area Rate Cases, 390 U.S. 747, 777-80 (1968); and such powers

may include the power to require prospectively, by regulation,

that all contracts set their rates subject to FERC's just and

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reasonable standard. Obviously, we do not decide the point, and

whether it would be good policy is a very different question.8

Alternatively, if FERC were neutral toward or opposed

to such clauses but wanted to eliminate much of the existing

uncertainty as to the parties' intent, it might prescribe

prospectively the terms that parties would have to use to invoke

Mobile-Sierra protection. This would at least be a more winning

approach than efforts to impose such requirements ad hoc, and,

as here, after contracts have been drafted, signed, accepted for

filing by FERC, and implemented. See, e.g., San Diego Gas &

Elec. Co. v. Public Serv. Co., 91 F.E.R.C. ¶ 61,233 (June 1,

2000); Florida Power & Light Co., 67 F.E.R.C. ¶ 61,141 (May 3,

1994); Southern Co. Servs., Inc., 67 F.E.R.C. ¶ 61,080 (Apr. 19,

1994). Arguably, such regulations as to form would more easily

survive judicial scrutiny than a general ban on contract

provisions seeking to invoke Mobile-Sierra.

FERC is not entirely to be blamed for the present

confusion: some of the problems arise from the failure of the

8Utility regulation is normally justified to offset market
or monopoly power, which may or may not be present in
transactions such as the ones before us. Where it is not,
private ordering by contract may be superior to regulation--a
view increasingly reflected in Congressional reforms. See,
e.g., 49 U.S.C. §§ 10707, 10709 (Supp. II 1996) (railroad
regulation); see generally, Western Coal Traffic League v.
United States, 719 F.2d 772, 776-77 (5th Cir. 1983) (en banc),
cert. denied, 466 U.S. 953 (1984).

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parties to be clear about their intentions, see, e.g., Memphis

Light, 358 U.S. at 109; some from changing attitudes of the

courts and the agency, see, e.g., Kansas Cities, 723 F.2d at 87;

and some from wholesale confusion about just what concrete

circumstances would allow a contract to be overridden under

Mobile-Sierra, see, e.g., Transmission Access Policy Study Group

v. FERC, 2000 WL 762706, at *35-*39 (D.C. Cir. 2000). But FERC

should stop trying to re-write deals that the parties have

already made under the aegis of Mobile-Sierra--unless it

properly invokes the public interest standard--and instead take

the longer view and decide what it wants or does not want in new

contracts.

Even though we conclude that Mobile-Sierra applies in

this case, FERC might still override the contract rates in

question on remand by determining that they are contrary to the

public interest. Sierra, 350 U.S. at 355; Mobile, 350 U.S. at

345. Admittedly, the rates are too high for the period in

question to be just and reasonable (or at least Boston Edison

has chosen not to contest this ruling); but are they so high as

to be contrary to the public interest--and what would this mean

anyway? See generally Northeast Utils. Serv. Co. v. FERC, 993

F.2d 937, 961 (1st Cir. 1993). Very little useful precedent

exists; FERC has made no findings and offered no interpretation

of the concept in this case; and the parties have not briefed

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the issue on appeal. Certainly, we have no interest in

anticipating it.

On remand, the parties are free to litigate the public

interest issue before FERC, but it is worth suggesting that this

is a case best resolved by settlement. Boston Edison has sold

Pilgrim, and new contracts are in force between the new owner

(Entergy) and Montaup and Commonwealth. As to refunding past

payments, the only issue is money, and the parties are likely to

waste much of it on lawyers' fees by litigating the public

interest issue which, being terra incognita as to rate

reductions, promises further appellate strife however it might

be resolved by FERC.

3. There remains Boston Edison's alternative claim on

appeal that, even if it owed refunds as determined by FERC,

Montaup and Commonwealth surrendered their rights when they

signed the termination agreements. If we thought this argument

were correct, it would waste everyone's time to remand the case

to see whether refunds could be justified by analyzing the rates

under the public interest standard: the termination amendments

would waive any refund claims regardless of the standard used to

invalidate the rates actually charged. We conclude, however,

that Boston Edison's waiver argument fails on the merits.

At the outset, FERC says that Boston Edison's waiver

argument should be rejected because not properly preserved. It

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relies upon a provision of the Federal Power Act that says: "No

proceeding to review any order of the Commission shall be

brought by any person unless such person shall have made

application to the Commission for a rehearing thereon." 16

U.S.C. § 825l(a). This is in substance an exhaustion-of-

remedies provision but, being statutory in character, it is

somewhat less susceptible to the implied exceptions, which

courts have liberally devised where the exhaustion requirement

is created by the courts rather than Congress. E.g., McCarthy

v. Madigan, 503 U.S. 140, 144 (1992); Coit Independence Joint

Venture v. Federal Sav. and Loan Ins. Corp., 489 U.S. 561, 579

(1989).

What happened here is that the termination amendments

were filed in April 1999 and became effective in July 1999, more

than two years after Boston Edison had petitioned for rehearing

of the refunds ordered in Opinion No. 411. Once FERC denied

rehearing of that decision in September 1999 in Opinion No. 411-

A, Boston Edison invoked the termination amendments as a

separate defense to refunds; first in early October by including

the argument in its Opinion No. 411-compelled compliance filing,

and then again later in October (in more abbreviated form) in a

petition for rehearing of Opinion No. 411-A. The parties then

exchanged arguments on the issue in briefs addressed to the

compliance filing.

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 In its January 2000 order, FERC resolved the dispute

by ruling that the termination amendments did not cut off the

refunds it had ordered. 90 F.E.R.C. ¶ 61,039, at 61,188. On

this basis, FERC found that Boston Edison's compliance filing

was insufficient and that the petition for rehearing of Opinion

No. 411-A should be denied. Id. at 61,191. FERC's present

threshold argument is that Boston Edison cannot challenge this

interpretation of the termination amendments in court because it

did not first seek a rehearing by FERC of its January 2000,

order. Such a position, however, stretches the exhaustion

doctrine beyond its limits and makes no sense in relation to the

doctrine's rationale.

Boston Edison had already raised its objection to the

refunds, based on the termination agreements, by petition for

rehearing, namely, the petition addressed to Order No. 411-A.

FERC directly addressed this argument in its January 2000,

order. Thus, the gist of the relevant argument that Boston

Edison wants to make on appeal was in fact presented to FERC on

rehearing and rejected on the merits. The idea that Boston

Edison was compelled to repeat the same arguments in a second

petition for rehearing makes no sense and is at odds with

settled authority. See Boston Gas Co. v. FERC, 575 F.2d 975,

978 (1st Cir. 1978); see also Southern Natural Gas Co. v. FERC,

877 F.2d 1066, 1072-73 (D.C. Cir. 1989).

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 Turning to the termination agreements themselves, each

contains a section, entitled "Termination of Remaining Rights

and Obligations Under Power Sale Agreement," that specifies:

"To the extent that continuation or survival of the rights and

obligations of Boston Edison and [Montaup and Commonwealth]

under the Power Sale Agreement are not expressly provided for in

this Amendment, they are hereby extinguished." Boston Edison's

argument, in a nut shell, is that nothing else in the amendments

specifically preserved the buyers' rights to the refunds ordered

by FERC and that therefore those rights were extinguished.

FERC concluded that this provision (section 7) standing

alone is "ambiguous," but it pointed to two other sections--6

and 15--that it read as preserving the buyers' rights to the

FERC-ordered refunds. 90 F.E.R.C. ¶ 61,039, at 61,190-91. FERC

says that its reading of the amendments is entitled to deference

while Boston Edison offers a different reading of those sections

and says that FERC's reading is unreasonable. We are ourselves

doubtful about the agency's reasoning, but we do not rely upon

it in arriving at the same result. The interpretation of

private contracts is, of course, ultimately a matter for the

courts although the agency's views may be entitled to a measure

of deference. Boston Edison Co. v. FERC, 856 F.2d 361, 363-64

(1st Cir. 1988).

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 By its terms, section 7 is addressed to extinguishing,

except as elsewhere preserved, rights and obligations "under the

Power Sale Agreement," i.e., rights and obligations created by

or pursuant to the agreement. But the refunds awarded to the

buyers by FERC are not rights under the agreement at all;

indeed, if the agreements were respected, there would be no

refunds. It is only because FERC has overridden the agreements

and awarded refunds "under" the statute that refund claims might

exist. Cf. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 248

U.S. 372, 376-77 (1919). On this reading, section 7 does not

address such claims at all.

This reading is bolstered by sections 6 and 15 which

also, by their terms, are directed to rights, obligations and

the like "pursuant to" the power sale agreement (section 6) or

termination amendment (section 15). Thus, both the

extinguishing section and the two reservation sections are

basically addressed to contract claims, not to FERC-ordered

refunds based on the statute. Boston Edison makes this very

point to distinguish the reference to "refunds" in section 6,

apparently without realizing that the argument also serves to

distinguish section 7 (to its disadvantage).

Boston Edison says that if the termination amendments

are deemed ambiguous, then it should have been allowed to rely

on extrinsic evidence. We do not view the amendments standing

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alone as ambiguous,9 but neither do we think that the extrinsic

evidence relied on by Boston Edison would alter the result even

if fully considered. In urging that the compliance filing be

rejected, Montaup said that Boston Edison had originally drafted

the termination amendment to make clear that FERC-ordered refund

claims were not extinguished, that this language had been

omitted from the final version drafted by Boston Edison, but

that Montaup had assumed that no change in meaning was intended.

By contrast, Boston Edison would have us interpret the omission

as manifesting an intent to exclude any refund rights.

This would be a closer case if Boston Edison had

claimed before FERC to have evidence of actual discussions

between its own negotiators and those of Montaup in which the

parties discussed the FERC refunds and concluded that the

termination agreement should extinguish rather than reserve

rights thereto. But Boston Edison did not, and does not, make

such a claim. Absent a timely proffer of extrinsic evidence at

least this compelling, we have no reason to worry about whether

anything outside the language of the agreement could properly be

consulted in construing it. Boston Edison relies upon two other

9FERC said the amendments were ambiguous but, in context, it
seems rather to have meant that section 7 viewed alone was
ambiguous but that sections 6 and 15 resolved the uncertainty.
However, because our own reasoning is different than that of
FERC, what FERC's reference to ambiguity means is beside the
point.

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items, both filings made by Montaup in which it referred to or

employed the 12 percent rate of return in making calculations

instead of using the FERC-determined rate. The inferences from

these filing are too weak to merit further discussion.

The orders reflected in Opinions No. 411 and 411-A are

vacated to the extent that they hold that Boston Edison's rates

of return on common equity were unlawfully high under the just

and reasonable standard and to the extent that they order

refunds on that premise. The matter is remanded to FERC for

further proceedings on the rate of return and refunds issues

consistent with this decision.

It is so ordered.

--Concurrence and Dissent by Judge Wallace Follows--

-28-
 WALLACE, Circuit Judge, concurring and dissenting. I

write separately to express my disagreement with the majority

opinion’s analysis of the effect the termination agreements

between Boston Edison and Montaup have on refunds ordered by

FERC.

I

The majority opinion states, "the refunds awarded to

the buyers by FERC are not rights under the agreement at all;

indeed, if the agreements were respected, there would be no

refunds. It is only because FERC has overridden the agreements

and awarded refunds ‘under’ the statute that refund claims might

exist." [Majority Opinion 22] However, it is equally clear that

without the original contractual relationship between Boston

Edison and Montaup, the refund obligation would not exist. It

is true that the original contracts between Boston Edison and

Montaup did not contain a provision stating, "FERC-ordered

refunds shall be considered as a right or obligation under the

contract," but they did contain language stating, "This

Agreement is made subject to present and future Federal, State

and local laws and to present and future regulations and orders

properly issued by Federal, State and local bodies having

jurisdiction . . ." [Majority Opinion 13 (emphasis added)]

While the majority rightly holds that this provision does not

assist FERC in its argument that the "just and reasonable"

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standard should apply, we must not overlook the fact that this

language was drafted with the knowledge of FERC's authority over

the contracts. Thus, it does indicate an intent by the parties

to be bound by any properly issued FERC order involving their

contractual relations, including FERC-directed refunds.

I am further troubled by the majority’s analysis

because all of the parties, including FERC, proceeded under the

assumption, until we ordered supplemental briefing on the issue,

that Section 7 of the termination agreement’s reference to

"rights and obligations" encompassed the refunds ordered by

FERC. Instead, the parties focused on whether the termination

agreement reserved or extinguished Montaup’s right to a FERC-

ordered refund, not on whether such a refund constituted a right

under the original contracts. Indeed, FERC wrote in its

supplemental brief, "It cannot be said with certainty whether

the Commission would agree or disagree with the [majority’s]

suggested reading or, alternatively, find it to be a permissible

alternative, because the Commission simply was not presented

with it and has not addressed it." I respectfully point out

that a "court ordinarily must review a decision of an

administrative agency on the basis of the agency’s own

rationale; unlike the situation involving appellate review of

judicial decisions, it cannot affirm the agency on a theory

that, although supported by the record, was not the basis of the

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agency’s ruling." Bivings v. United States Dep't. of

Agriculture, 225 F.3d 1331, 1335 (Fed. Cir. 2000) (referencing

SEC v. Chenery Corp., 318 U.S. 80, 87-88 (1943). I would,

therefore, reach the question of whether the termination

agreement extinguished or reserved Montaup’s right to FERC-

ordered refunds.

II

Section 7 of the termination agreement provides, "To

the extent that continuation or survival of the rights and

obligations of Boston Edison and Montaup under the Power Sale

Agreement are not expressly provided for in this Amendment, they

are hereby extinguished." FERC (and Montaup as amicus) argue

that sections 6 and 15 of the termination agreements support its

position that FERC-ordered refunds were expressly reserved

rather than extinguished.

Section 15 of the termination agreement provides:

Montaup reserves all rights and defenses
that exist pursuant to the Power Sale
Agreement and prior settlements between the
Parties with respect to any amount paid by
Montaup pursuant to this Amendment,
including but not limited to such costs that
are incurred by reason of Boston Edison’s
negligence, willful misconduct, or violation
of any law or regulation.

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(Emphasis added). Boston Edison does not charge return on

equity "pursuant to this Amendment;" return on equity is fixed

in the base entitlement contracts. Thus, since Montaup is not

making return on equity payments "pursuant to this Amendment,"

section 15 cannot reserve any rights with respect to such

payments.

Section 6 of the termination agreement provides:

Billing and Accounting. The Parties’
respective rights and obligations associated
with billing, payment, accounting and
refunds for charges incurred by Montaup
pursuant to the Power Sale Agreement prior
to the Effective Date shall be determined in
accordance with Section C-8 of the Power
Sale Agreement.

(Emphasis added). Standing alone, the first part of this

provision seems broad enough to encompass FERC-ordered refunds;

however, the section unambiguously provides that any refund-

associated right can only be determined pursuant to the

procedures of section C-8 of the Power Sale Agreement.

Section C-8 of the Power Sales Agreement discusses

billing procedures. For example, C-8.3 states:

Buyer shall not have the right to challenge
any monthly bill, to invoke arbitration of
the same or to bring any court or
administrative action of any kind

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 questioning the propriety of said bill after
a period of one (1) year from the date the
bill is rendered. In the case of a bill
containing estimates, the Buyer shall not
have the right to challenge the accuracy of
said bill after a period of one (1) year
from the date the bill is adjusted to
reflect the actual amount.

Paragraph C-8 contains no provision explicitly authorizing

Montaup to challenge the contractual rate of the return on

equity by using its procedures. Moreover, it is unlikely that

section C-8 implicitly gives Montaup such a right since the rate

of return on equity was already explicitly established

elsewhere in the contracts. The contracts also contain a

provision requiring that amendments to the contract reflect the

mutual agreement of the parties. It would nullify these

amendment provisions if section C-8 were interpreted as giving

Montaup the ability to challenge the return on equity provisions

by mounting an attack through the provisions of section C-8. In

addition, section C-8, during the life of the original

contracts, was used only for the purpose of challenging the

mathematical accuracy of bills and not as a mechanism for

achieving unilateral change of the contract.

I would hold that the termination agreements

extinguished Montaup’s right to FERC-ordered refunds. Further,

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since such an interpretation is determinative of Montaup’s

rights, there is no need to address whether FERC applied the

correct standard, although I agree with the majority’s

discussion of that issue.

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