CONSOLIDATED EDISON COMPANY OF N.Y., INC. v. PUBLIC SERVICE
470 U.S. 1075

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U.S. Supreme Court

CONSOLIDATED EDISON COMPANY OF N.Y., INC. v. PUBLIC SERVICE , 470 U.S. 1075 (1985)

470 U.S. 1075

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
v.
PUBLIC SERVICE COMMISSION OF NEW YORK, et al
No. 84-1176

Supreme Court of the United States

March 25, 1985

The motion of Edison Electric Institute for leave to file a brief as amicus curiae is granted. The request of counsel for appellant to delete Brooklyn Union Gas Company as a party to this case is denied. The appeal is dismissed for want of a substantial federal question.

Justice WHITE, with whom Justice BLACKMUN joins, dissenting.

The Public Utility Regulatory Policies Act of 1978, Pub.L. 95-617, 92 Stat. 3117 (PURPA), is part of a broad congressional

Page 470 U.S. 1075 , 1076

response to the energy crisis. One of its provisions, 210 of Title II, 16 U.S.C. 824a-3, is designed to promote the development of alternative energy resources by overcoming the historical reluctance of electric utilities to purchase power from nontraditional facilities. FERC v. Mississippi, 456 U.S. 742, 750, 2132 (1982 ). Section 210(a) authorizes the Federal Energy Regulatory Commission ( FERC) to promulgate "such rules as it determines necessary to encourage cogeneration and small power production," including rules requiring utilities to offer to purchase electricity from qualifying small power production facilities. Section 210(b) requires that the rates for such purchases be "just and reasonable" and nondiscriminatory, and that no FERC rule "shall provide for a rate which exceeds the incremental cost to the electric utility of alternative electric energy."

Pursuant to 210(a), FERC requires utilities to purchase electricity from qualifying facilities. See 18 CFR 292.303(a) (1984). In an apparent effort to encourage decentralized power production as much as possible, FERC adopted the maximum rate allowed by the statute-the incremental, or "full avoided cost," standard-for such purchases. See 292.304(b)(2); see also 45 Fed.Reg. 12214, 12222 (1980). We upheld its choice in American Paper Institute, Inc. v. American Electric Power Service Corp., 461 U.S. 402 (1983).

Though PURPA is a federal statute whose administration lies with FERC , "implementation" of the statute is left in large measure to the States. See 210(f), 16 U.S.C. 824a-3(f); 18 CFR 292.401 (1984). Thus, a State can, under certain circumstances, set rates that are lower than full avoided costs, 18 CFR 292.304(b)(3) (1984); a qualifying facility and a utility can negotiate for lower rates, 292.301(b)(1); and the state regulatory authority or any non-regulated utility may apply to FERC for a waiver, 292.403. The question in the present case is just how far a State can go in the other direction. In particular, the question is whether a State can require utilities to pay more than the full avoided cost rate for their mandatory purchases.

New York has set a minimum rate of six cents per kilowatt hour for utility purchases from qualifying facilities. N.Y.Pub.Serv.Law 66-c ( McKinney Supp.1984-1985). Appellant challenged the law, arguing that it could not be required to pay six cents per kilowatt hour for the times when its avoided costs fell below that amount. The Appellate Division of the New York Supreme [470 U.S. 1075 , 1077]


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