[00:00:00] Speaker 01: Case number 11-1451, Constellation Energy Commodities Group, Inc. [00:00:07] Speaker 01: at L Petitioners vs. Federal Energy Regulatory Commission. [00:00:10] Speaker 01: Mr. Young for the petitioner, Ms. [00:00:12] Speaker 01: Pacella for the respondent. [00:01:36] Speaker 04: Good morning. [00:01:37] Speaker 04: May it please the Court, Andrew Young on behalf of the petitioner, referred to here and after as Constellation. [00:01:43] Speaker 04: I'd like to reserve two minutes for rebuttal. [00:01:47] Speaker 04: This petition for review involves certain fur quarters that eliminated electric transmission rate, known as the through and out rate, and replaced it with a new mechanism known as the CECA under Section 206 of the Federal Power Act. [00:02:01] Speaker 04: As the ultimate beneficiary is elimination of thrown-out rates, FERC can pose SICA charges on load-serving entities. [00:02:07] Speaker 04: However, in paragraph 45 of... Can I just ask a fact question? [00:02:11] Speaker 05: Sure. [00:02:11] Speaker 05: The SICA is paid to the RTO, or who is it paid to? [00:02:15] Speaker 04: The SICA gets paid, yes, it's collected by the RTO and then dispersed out to the transmission owners. [00:02:21] Speaker 05: Based on, but not based on whether they carried in this particular, any particular circumstance. [00:02:27] Speaker 04: I'm sorry, say that again. [00:02:28] Speaker 05: Without respect to whether they were the transmitter in a particular load. [00:02:32] Speaker 05: That's the way they solve the economic problem. [00:02:34] Speaker 04: Yeah, they file their revenue requirements for their transmission facilities as part of the RTO rates, as it were. [00:02:42] Speaker 04: So, however, in paragraph 45 of FERC's November 2003 order, FERC recognized the concern of some parties that generators may benefit from the elimination of thrown-out rates, and those savings may not all be passed on to load serving entities. [00:02:56] Speaker 04: Therefore, FERC listed four remedies to this concern, the last of which allowed load-serving entities under existing contracts to deliver power that continue into the transition period to demonstrate to the suppliers and shipper officials transactions and to propose that the supplier be required to pay the SICA for that portion of the load-serving entities load served by the contract. [00:03:18] Speaker 04: Constellation challenges first subsequent orders, which permitted the Michigan cities to shift their seek liabilities to Constellation under these so-called shift-to-shifter mechanism. [00:03:27] Speaker 03: Was Constellation a party to the proceeding that led to paragraph 45? [00:03:33] Speaker 04: That, you mean, were they a party to the proceeding for November 2003 order? [00:03:39] Speaker 04: Yeah, I believe they were. [00:03:40] Speaker 04: They had intervened and were a party to that proceeding. [00:03:44] Speaker 03: Under the name Constellation, or was it a different name? [00:03:47] Speaker 04: There have been several changes in names, Your Honor. [00:03:50] Speaker 04: They originally were Constellation Power Source, and then they were Constellation Energy Commodities Group, and now are, of course, our next-line generation. [00:03:58] Speaker 04: So we'd have to check and see under which name. [00:04:02] Speaker 04: As an initial jurisdictional matter, FERC argues that certain Constellation arguments represent a collateral attack on the November 2003 order. [00:04:11] Speaker 04: There are two considerations necessary to determine whether Constellation's arguments represent a collateral attack. [00:04:16] Speaker 04: FERC was Constellation agreed by FERC's order. [00:04:19] Speaker 04: Constellation argues that it was not agreed by the Federal 2003 order because paragraph 45 merely permitted load-serving entities to make such claims. [00:04:27] Speaker 04: Any injury to Constellation was conjectural or hypothetical. [00:04:30] Speaker 05: Was there any doubt that they would make such a claim? [00:04:33] Speaker 05: I mean, what possible reason would an LSE not want to shift the cost onto somebody that they seek out to somebody else? [00:04:44] Speaker 04: Well, there are a lot of circumstances, I suppose. [00:04:46] Speaker 04: I mean, we were interpreting one sentence out of a loan order. [00:04:51] Speaker 04: It seems like, to me, LSEs would have had an incentive to shift. [00:04:54] Speaker 05: Yes. [00:04:55] Speaker 05: So unlike some of the other cases that we've talked about, [00:05:01] Speaker 05: such orders being conditional because we didn't know in the end whether something could be aimed at the person who's complaining. [00:05:10] Speaker 05: In this case, it seemed quite obvious that the LSEs would ultimately be trying to shift. [00:05:17] Speaker 05: You agree with that part? [00:05:19] Speaker 04: I agree generally that's true. [00:05:21] Speaker 04: I agree it depends on a lot of facts, though, Your Honor. [00:05:23] Speaker 04: If you look at one of the things in the record is constellations contingent, shift to shift contingent notice regarding claims. [00:05:30] Speaker 04: And it lists a lot of parties, some of which filed claims, some of which withdrew claims, some of the claims which were settled, some of the claims which were litigated. [00:05:40] Speaker 04: There's also a lot of mentioned upstream contracts in there, some of which were pursued, some of which weren't. [00:05:45] Speaker 05: Settled and litigated doesn't really help, really, because they're only settled and litigated if they have some kind of claim. [00:05:53] Speaker 05: There were some that were withdrawn, too. [00:05:54] Speaker 05: Do we know why they were withdrawn? [00:05:56] Speaker 04: I can speculate, but there's nothing in the record that would indicate their intent. [00:06:02] Speaker 05: These are profit-making entities. [00:06:04] Speaker 05: These are non-profits or charitable organizations. [00:06:07] Speaker 05: at least from an economic point of view, they would like to shift the cost of somebody else if they could. [00:06:12] Speaker 05: Doesn't that seem right? [00:06:14] Speaker 05: I think generally that's true. [00:06:16] Speaker 02: So I understand your argument that your client could not have known that FERC was going to decide that paragraph 45 did not have a benefits element at the end, but what about [00:06:36] Speaker 02: the client's concern about the cost causation principle, the ripple effect, those sorts of things. [00:06:42] Speaker 02: Wouldn't those have been matters that your client would have been aware of at the time? [00:06:49] Speaker 04: I'm sorry, could you rephrase that again? [00:06:52] Speaker 02: Well, as I understand your argument, you're saying that until Michigan City's actually filed the claims, your client wasn't injured in fact. [00:07:01] Speaker 02: And so the question is, well, could you have foreseen, would a reasonable [00:07:06] Speaker 02: entity in your client's position have foreseen some of the issues that it's now raising and presented them to the agency at that time? [00:07:19] Speaker 02: Is there an petition for re-hearing? [00:07:21] Speaker 04: Well, that goes to, I guess, the second argument, Your Honor, which is sort of reasonable notice, if that's what you're getting at. [00:07:27] Speaker 02: I'm just getting at your arguments. [00:07:29] Speaker 04: Yeah. [00:07:29] Speaker 04: Yeah. [00:07:30] Speaker 04: So there's two parts to the argument. [00:07:31] Speaker 04: One is whether the injury was concrete enough at that point in time when it wasn't until two years later that they were actually notified of the claim and were given an opportunity to analyze the claim and the contracts under which those claims were made. [00:07:45] Speaker 04: So that's one argument. [00:07:46] Speaker 04: The second argument is as to whether or not FERC gave Constellation and other parties sufficient notice regarding these shift to shipper claims. [00:07:57] Speaker 04: So FERC argues that paragraph 45 sets out four limited requirements for ship to shipper claims, and these requirements do not include benefits test. [00:08:05] Speaker 04: So they argue the reasonable notice was given. [00:08:08] Speaker 04: However, FERC's third required element demonstrates that the supplier is a shipper for such transactions. [00:08:13] Speaker 04: Constellation believes it does contain a benefits test. [00:08:16] Speaker 04: The term shipper is more commonly used in the natural gas industry. [00:08:20] Speaker 04: It refers to a customer seeking transportation service on a gas pipeline. [00:08:24] Speaker 04: So it's a little bit of an unusual term. [00:08:26] Speaker 04: But here in the electric context, we interpret it to mean a transmission customer seeking service from a transmission provider, or in this case, the RTL. [00:08:35] Speaker 04: Now, in the context of paragraph 45, though, we thought it made logical sense that that would be the transmission customer that imported power and thus benefited from FERC's elimination of throw-in-out rates. [00:08:45] Speaker 04: In fact, going back to the very first sentence of paragraph 45, which explicitly says FERC recognizes the concern of some parties that generates new benefit, but yet now FERC is telling us that shiver claims could be made regardless of benefit. [00:09:00] Speaker 04: So those are sort of the two arguments. [00:09:03] Speaker 04: One, the injury is not concreted and particularized, and two, that they weren't given sufficient notice. [00:09:08] Speaker 04: In fact, for a reasonable person's standard, the ALJ found that Frick's interpretation was consistent with Frick's intent when drafting paragraph 45. [00:09:19] Speaker 04: As for the merits, consolation first challenges Frick's determination that the mystery of the city can shift their secret charges to consolation. [00:09:27] Speaker 04: Consolation argued that in order to prevail on a ship-to-ship reclaim, a load-serving entity should demonstrate the supplier as a ship or import of power, and therefore benefit from first elimination through outlays. [00:09:37] Speaker 04: FERC rejected Consolation's argument and stated unequivocally that paragraph 45 imposes no benefits test. [00:09:45] Speaker 04: Now, in order for FERC approved rates to be just and reasonable, they must adhere to a principle of cost causation. [00:09:50] Speaker 04: So quite simply, FERC's unequivocal declaration that the principle of cost causation does not apply to shift to shipper claims renders its imposition of secret charges on consolation unjust and unreasonable. [00:10:05] Speaker 05: Can I just ask you to back up for one second? [00:10:07] Speaker 05: So on this reasonable notice, your argument is that you didn't think paragraph 45 applied to a company like Constellation. [00:10:15] Speaker 05: That was a reasonable notice question? [00:10:17] Speaker 04: No, the reasonable notice question was whether paragraph 45, whether shift to shipper claims would include some kind of showing that you need to show a benefits test, the principal. [00:10:26] Speaker 05: Oh, I understand that. [00:10:27] Speaker 05: But I thought you were making an argument on the difference between a shipper and a supplier or something like that. [00:10:32] Speaker 05: That's not what you were trying to do. [00:10:33] Speaker 04: Yeah, I think below what we were saying was, look, if you only limit it to the contracted issue, and it's a delivery power contract, then therefore the supplier and the shipper are one and the same. [00:10:44] Speaker 04: So it can't mean that. [00:10:46] Speaker 04: Shipper has to mean, again, looking at the first sentence of paragraph 45 in the reference to generators, it's got to look at the chain of supply, which goes from the generator or the source to the load or the sink. [00:10:57] Speaker 04: In this case, Constellation's a marketer who bought and resold. [00:11:00] Speaker 05: So what we're saying is... So this goes to the benefits part, but not to the argument that you didn't think this applied in some way to Constellation. [00:11:09] Speaker 04: What applied to Constellation? [00:11:10] Speaker 04: Paragraph 45. [00:11:12] Speaker 04: Paragraph 45. [00:11:12] Speaker 04: I mean, paragraph 45 is shift shift claims that can be brought by the loads for the entities. [00:11:17] Speaker 05: Yes. [00:11:17] Speaker 04: Yes. [00:11:18] Speaker 04: So as to whether or not Frick's argument that so-called ripple claims were... No, I understand. [00:11:23] Speaker 05: I got that general point, but your point that... [00:11:27] Speaker 05: 45 was allowing LSEs to make this shift, at least in the first instance, to somebody like Constellation. [00:11:36] Speaker 05: You're not saying that you don't think that applied at all. [00:11:41] Speaker 05: You don't think that FERC was saying that the ability of LSEs to shift the claim, at least of charge, at least in the first instance to Constellation, wasn't described in paragraph 45. [00:11:55] Speaker 05: You agree that it was described in Paragraph 45? [00:11:57] Speaker 04: It was described in Paragraph 45. [00:12:01] Speaker 04: The question is whether the requirements of that shiftership or claim were clearly identified, and what's not supposed to be put on reasonable notice will be there. [00:12:08] Speaker 05: And right now you're talking about the requirements, including the who benefits. [00:12:12] Speaker 05: Yes, all right, yes. [00:12:14] Speaker 04: So again, as to the merits, first, it's a little disingenuous for FERC to say a benefits test can't apply because, of course, FERC approved rates have to adhere to the principle of cost causation. [00:12:28] Speaker 04: Also, this court has held that an agency changing its course must apply a reasoned analysis indicating that its prior policies have been deliberately changed and not casually ignored. [00:12:37] Speaker 04: So then the question is whether that simple declaration, again, is a reasoned analysis justifying a departure from the principle of cost causation. [00:12:44] Speaker 04: Finally, we'd argue that a first decision was internally inconsistent, because it relied on the principle of cost causation to impose secret charges on load serving entities, but then ignores that same principle when it deals with these ship-to-ship claims in a paragraph. [00:13:03] Speaker 04: The second argument is challenging first reversal of the ALJ's finding that American Electric should be responsible for a portion of such secret charges. [00:13:12] Speaker 04: The ALJ have found that American Electric was a party in the chain of supply to the Michigan cities that was the shipper that benefited from personal energy through an outrage. [00:13:20] Speaker 04: However, Frick reversed the ALJ's finding by concluding that paragraph 45 speaks of load-serving entities making such ship-to-shipper claims, and Constellation is not a load-serving entity. [00:13:30] Speaker 04: Frick also found the initial decision attempts to support the notion of rope claim using a benefits test, an idea that also has no basis in paragraph 45. [00:13:38] Speaker 04: So again, for the same reasons, Your Honor, they're simply stating that the benefits test doesn't apply. [00:13:43] Speaker 04: So hard to see how the imposition, as you can charge, is going to be just and reasonable under those circumstances. [00:13:49] Speaker 04: Further, they've provided no reason to explanation for deviating from that principle of cause causation. [00:13:54] Speaker 04: And then finally, they criticize the ALJ for being inconsistent, noting that the initial decision recognized that a low certainty entity is not required to satisfy a benefits test and bring a shift to shipper claim, yet it relies upon the benefits test for allowing ripple claims. [00:14:08] Speaker 04: However, first determination results in a similar inconsistency, Your Honor, again, because it relied on the principle of cost causation and post-con analyses, but then ignores it when allowing shift to shift proclaims, or defences the shift to shift proclaims in this instance. [00:14:22] Speaker 05: So the third argument... But to make it clear about this, you're not talking about being able yourself to lay off the charge onto AEP. [00:14:30] Speaker 05: you're using this as a defense against the LSE's claim, right? [00:14:34] Speaker 04: Yes. [00:14:34] Speaker 04: I mean, the notion of ripple claim is an unfortunate term. [00:14:38] Speaker 04: Whether it's a claim or whether it's a defense. [00:14:40] Speaker 04: Which part, the ripple or the claim? [00:14:42] Speaker 04: Both. [00:14:43] Speaker 04: Both, I suppose, Your Honor. [00:14:45] Speaker 04: We had pursued it alternatively either as a claim or as a defense. [00:14:49] Speaker 04: Recognizing that the language in paragraph 45 said, loathe her against the ones who could bring them, we always put forth that this was an appropriate defense. [00:14:56] Speaker 04: And both the ALJ and FERC recognized that we were using it as a defense. [00:15:00] Speaker 04: So third, Constellation challenges first decision not to reduce the secret charges shifted to Constellation for purchases from MISA's day two markets after April 1st. [00:15:13] Speaker 04: So except for the power purchase from American Electric, Constellation purchased all the remaining power needed to serve the Michigan cities after April 1, 2005, from MISO's day two markets. [00:15:24] Speaker 04: Constellation argued that secret charges should be reduced to account for the revenues lost as a result of the commencement of MISO's day two markets, an intervening event, if you will, rather than first elimination of the run-out rates. [00:15:35] Speaker 04: However, FERC held that Michigan South Central has a long-term, fixed-price, fixed-quantity contract with Constellation, which is unaffected by any energy market changes, and the record reveals no substantial difference in the amount of power purchased from Constellation that qualifies as a known and measurable change to test period data. [00:15:52] Speaker 04: Now, Constellation pointed out that FERC seemed to have misunderstood its argument. [00:15:55] Speaker 04: The argument wasn't that there was a change in the amount of power purchased by the Michigan cities from Constellation. [00:16:01] Speaker 04: The argument was there was a change in the power that was no longer being imported across the relevant scene and therefore didn't benefit from the elimination through an out rates. [00:16:11] Speaker 04: MISO's day two markets are completely internal to MISO. [00:16:14] Speaker 04: So Constellation benefited, if at all, because of a change in the markets. [00:16:20] Speaker 04: irrespective of FERC's elimination of thrown-out rates. [00:16:23] Speaker 04: FERC did not meaningfully respond to that argument. [00:16:28] Speaker 04: Fourth, Constellations challenges FERC's reversal of the ALJ's finding that ship-to-ship reclaims in Michigan South Central should be reduced by 21.8%. [00:16:35] Speaker 04: So MSCPA had a peak load of approximately 120 megawatts, and it purchased 30 megawatts of power from Constellation. [00:16:43] Speaker 04: And MSC's remaining load of 90 megawatts was met through its own generation. [00:16:48] Speaker 04: So the amount of power Michigan South Central purchased from Constellation and generated itself exceeded what was needed to serve its load. [00:16:56] Speaker 04: Therefore, MSCPA, we sold a certain amount of power to third parties, equal to the 21.8% we purchased from Constellation. [00:17:04] Speaker 05: The FERC's view was that, given the amount that they were producing, that it was consistent with them selling their own power and not Constellation's power. [00:17:13] Speaker 05: Is that right? [00:17:13] Speaker 05: Yes. [00:17:14] Speaker 05: I got their argument right anyway. [00:17:16] Speaker 05: I believe so, Your Honor. [00:17:16] Speaker 05: So what's wrong with that? [00:17:18] Speaker 04: The argument was, Your Honor, that MSCPA had a burden of proof under paragraph 45. [00:17:23] Speaker 05: Who does have the burden of proof here? [00:17:25] Speaker 04: Well, if we look at the language of paragraph 45, it says, load-serving entities under existing contracts, it goes on, to propose that the supplier be required to pay the CEQA for that portion of the load-serving entities load-served by the contract. [00:17:39] Speaker 04: So the load-serving entity has to propose. [00:17:42] Speaker 05: Well, it has to propose, but I thought the first point was it was only going to deviate from the test period data for known and measurable changes. [00:17:53] Speaker 05: That would suggest that the burden is on you to show that they didn't sell from their own generation. [00:18:03] Speaker 04: Well, the argument regarding or the point regarding [00:18:09] Speaker 04: the change to the test period data was regarding the development of the secret rates themselves. [00:18:17] Speaker 04: That was not necessarily related to shift issue proclaims, which is where the confusion, I think, lies. [00:18:22] Speaker 04: Because again, our argument was that FERC failed to understand our argument, which was a burden-approved argument. [00:18:29] Speaker 04: So FERC was talking about development of rates. [00:18:31] Speaker 04: We were talking about burden of proof under paragraph 45. [00:18:35] Speaker 04: And that's why we think they didn't completely respond. [00:18:37] Speaker 04: Because the ALJ found that Michigan South Central Power Agency agreed with the Consolation and found that Michigan South Central Power Agency didn't provide any evidence, didn't even support economic rationale indicating that the power [00:18:51] Speaker 04: Purchase from Constellation was used to serve its load. [00:18:53] Speaker 04: Therefore, it failed to meet its burden of FERC. [00:18:56] Speaker 04: FERC reversed, and we challenged that. [00:18:58] Speaker 04: And we don't think FERC meaningfully responded to that. [00:19:04] Speaker 04: You're out of time. [00:19:05] Speaker 04: The last thing I think was Bay City, Your Honor. [00:19:08] Speaker 04: Were there any questions regarding the challenge for the Bay City claim? [00:19:15] Speaker 05: Thank you. [00:19:15] Speaker 05: Thanks. [00:19:16] Speaker 05: We'll hear from FERC. [00:19:22] Speaker 00: Good morning, Your Honors. [00:19:23] Speaker 00: Beth Pacella for FERC. [00:19:25] Speaker 05: Could you just turn to this last point about who had the burden of proof in that proceeding and what was the, what's FERC's explanation for reversal of the... 21.8%. [00:19:37] Speaker 00: Correct. [00:19:38] Speaker 00: Yeah. [00:19:38] Speaker 00: I think that that's exactly what Your Honor was saying is exactly right, is that the way that it works with the 21.8%, the burden of proof is on [00:19:48] Speaker 00: the load serving entity to propose that this happened. [00:19:53] Speaker 00: And then they propose it, and then the recipient of the proposed ship would then have to show that there was a known and measurable change to change that. [00:20:03] Speaker 00: And that's because [00:20:04] Speaker 00: As Your Honor has already recognized, a load serving entity seems to eliminate surcharges are calculated based on test period import that used through an out-service. [00:20:14] Speaker 00: That included the contract amount in the contract at issue here between Constellation and Michigan South Central. [00:20:23] Speaker 00: So Michigan South Central was assessed seams elimination surcharges based on the volumes in that contract. [00:20:31] Speaker 00: And so it comes down to who is then going to be paying that secret charge. [00:20:35] Speaker 00: Is it going to be the load-starting entity that paragraph 45 is directed to to ensure that they don't double pay? [00:20:42] Speaker 00: which is what would have occurred. [00:20:44] Speaker 00: And so because their load didn't go down, there was no basis on which to, no one disagrees that their load didn't go down. [00:20:52] Speaker 00: So no decrease in load, no decrease in SICA charge, no decrease in shift of the SICA charge. [00:21:00] Speaker 00: That was the commission's analysis. [00:21:02] Speaker 00: I think if you look at petitioners' briefs, they just ignore the commission's point about known and measurable charges. [00:21:10] Speaker 00: So I don't think they really challenge that. [00:21:12] Speaker 00: They just don't acknowledge it, but the commission did. [00:21:20] Speaker 00: If there are no further questions on that, I'll turn to the collateral attack issue. [00:21:29] Speaker 00: First, Your Honors, on benefits, if you look at paragraph 45, the fourth mitigation measure in paragraph 45, it includes simply four requirements. [00:21:43] Speaker 00: to demonstrate that your seams elimination should be shifted. [00:21:48] Speaker 03: Can I be, on the collateral attack question, is it your position that, and there are two ways that conspilation could have challenged the reading of paragraph three, but one is to file a petition for rehearing with FERC. [00:22:07] Speaker 00: That's right, Your Honor. [00:22:08] Speaker 03: And two is to come in court. [00:22:10] Speaker 00: They couldn't have come into court at that point, and we certainly don't make a standing argument that they had standing at the time, because the first time the commission created this [00:22:21] Speaker 00: Paragraph 45, shift to shipper mechanism, was in the November 17, 2003 order. [00:22:28] Speaker 03: So while that was... So they'd be having to file a petition for rehearing of an order on rehearing. [00:22:35] Speaker 00: Sure, absolutely, because it was a brand new, this was a new ruling on rehearing of 104 for... Yeah, I have a vague memory that there's law about that when you have to... [00:22:47] Speaker 03: There is none. [00:22:52] Speaker 00: This is the exact circumstance where you would have to seek re-hearing because it's a brand new holding. [00:22:57] Speaker 00: In response to re-hearing requests from 104 FERC 61105, which is at JA 1116, that's the order underlying the November 17, 2003 order. [00:23:09] Speaker 00: And in that proceeding, the commission [00:23:12] Speaker 00: did find that threw-in-out rates, pancake rates, are unjust and unreasonable and ordered that the seams elimination surcharge be imposed instead. [00:23:23] Speaker 00: And parties started hearing. [00:23:24] Speaker 00: And one of the things people brought up was, wow, you're not realizing if you do that, we load serving entities are going to be double charged. [00:23:32] Speaker 00: And the commission in paragraph 45 of the November 17, 2003 order remedied that for the first time, came in and set up this new shift to shipper mechanism. [00:23:41] Speaker 00: So the first time it came about was in the November 17, 2003 order. [00:23:45] Speaker 00: Therefore, as the commission found, if there were any concerns about that, causation concerns, [00:23:51] Speaker 00: whether the ambiguity about whether there was a benefit test that was plainly not listed in the four criteria set out in that test, that's the exact kind of thing that this court has said, for example, in Dominion at 286 F3rd at 589, ambiguity is not enough to excuse Constellation's failure to seek for hearing. [00:24:14] Speaker 00: At best, it's ambiguous that there's a benefits test in the shift-to-shift mechanism of paragraph 45. [00:24:24] Speaker 00: At best. [00:24:25] Speaker 00: And I think what Judge Rogers was intimating before was there's not even, at best, the intimation of possibility of a ripple claim. [00:24:33] Speaker 00: So that's not even really an ambiguity issue. [00:24:37] Speaker 00: But if it's a cost causation issue, they did need to come to the commission and say, just like the parties did on rehearing, [00:24:44] Speaker 00: 104 FERC, you are not recognizing that there's a cost causation problem. [00:24:49] Speaker 00: We're going to be double charged. [00:24:50] Speaker 00: And that would have been the simple thing to do, and this proceeding might not be here. [00:24:55] Speaker 00: The whole thing. [00:24:55] Speaker 00: The commission may well have resolved that concern in their favor if it had been presented to them. [00:25:08] Speaker 00: No further questions? [00:25:10] Speaker 00: Thank you very much. [00:25:13] Speaker 05: Does she have any time? [00:25:15] Speaker 05: We'll give you another minute if you'd like. [00:25:17] Speaker 05: If you'd like. [00:25:34] Speaker 04: Just briefly, Your Honor, you know, again, for the MSCPA and the 21.8 percent reduction, no decrease in load, so therefore no decrease in secret charges, you know, wasn't the issue that was already for the ALJ, and the ALJ decided and reversed on, which was the burden of proof issue, which is, again, why we think they didn't mean it for the response. [00:25:53] Speaker 04: And I don't know how a decrease in load answers that question. [00:25:56] Speaker 04: No decrease in load answered that question. [00:25:58] Speaker 04: We certainly never argued that there was a decrease in load. [00:26:01] Speaker 04: As for collateral attack, I would just say that the FERC would have you believe that this was a non-conditional order. [00:26:07] Speaker 04: It was, you know, as they acknowledged, they had created shipper claims for the first time. [00:26:12] Speaker 04: And no claims had yet been filed. [00:26:14] Speaker 04: It was clearly contingent on future events, the filing of such claims. [00:26:18] Speaker 04: So that's all I have to say. [00:26:21] Speaker 05: We'll take the matter under submission then. [00:26:23] Speaker 05: Thank you very much.