[00:00:00] Speaker 00: Case number 16-1342, ESI Energy LLC Petitioner versus Federal Energy Regulatory [00:00:24] Speaker 05: Good morning. [00:00:26] Speaker 05: My name is Larry Eisenstadt from Crollin Moring on behalf of petitioner ESI Energy. [00:00:33] Speaker 05: May it please the Court, I'd like to reserve two minutes of my time for rebuttal. [00:00:41] Speaker 05: When this dispute first [00:00:44] Speaker 05: appeared before the court, you instructed FERC to address the many shortcomings of the Commission's initial orders. [00:00:53] Speaker 05: You did not prescribe an outcome. [00:00:56] Speaker 05: On remand, the Commission simply did not do its job. [00:00:59] Speaker 05: In fact, to a very great extent, the Commission thought that the Court had already done its job for the Commission. [00:01:06] Speaker 05: The court asked the Commission to explain the significance of the PJM filing, the AMP Ohio Motion for Request for Clarification, PJM's acceptance, how it all related to the letter order. [00:01:21] Speaker 05: Marcus Hook provided that explanation. [00:01:24] Speaker 05: On remand, we showed that PJM clearly [00:01:28] Speaker 05: proposed to grandfather interconnection customers and queues that closed prior to the U2 queue that is undisputed. [00:01:38] Speaker 05: We showed that PJM clearly reiterated that proposal when it responded to a specific request by AMP Ohio. [00:01:48] Speaker 05: No objections at the time were made to the, to PJM's response, not even from LS Power Associates. [00:01:59] Speaker 05: That was a, not only a party in the Dominion case, but a signatory, a signatory to the agreement that resulted in the settlement agreement that resulted in the Dominion proceeding, that resulted in the tariff filings, tariff sheet filings in this case. [00:02:17] Speaker 05: We showed that FERC accepted the tariff, tariff sheets. [00:02:23] Speaker 05: That's the letter order. [00:02:24] Speaker 05: They accepted the tariff sheets as proposed. [00:02:28] Speaker 05: There were no objections from anybody, any market participant, as to what FERC meant in its order. [00:02:35] Speaker 05: Everybody in the industry understood exactly what FERC meant in its order. [00:02:41] Speaker 05: Certainly PJM understood it and certainly PJM continually reiterated that to West Deptford every time they talked about cost allocation, every time there was a study, and indeed there was in fact a facility study agreement. [00:03:00] Speaker 05: That agreement was not simply about the cost of the study. [00:03:04] Speaker 05: That agreement specifically said that the cost responsibility [00:03:10] Speaker 05: would be determined pursuant to Section 37.7. [00:03:15] Speaker 03: Now... I think it said estimates. [00:03:21] Speaker 03: Estimates shall be consistent with Section 37 or Section 42. [00:03:26] Speaker 05: That's correct, Judge. [00:03:30] Speaker 03: What was Section 42? [00:03:31] Speaker 05: I'm sorry? [00:03:32] Speaker 03: What was Section 42? [00:03:34] Speaker 05: I really don't know the answer to that question. [00:03:36] Speaker 03: It says consistent with Section 37 or 42, so I'm trying to understand, read all the language to understand your argument. [00:03:45] Speaker 05: I'd have to look up what 42 is, but I'm sure at one point in time I knew, and it's irrelevant to this issue, but perhaps if it is relevant, it'll be brought up. [00:03:55] Speaker 03: It does say Section 37. [00:03:56] Speaker 05: Pardon me? [00:03:56] Speaker 03: Right, it doesn't say 37.7. [00:03:58] Speaker 03: Well, 37. [00:03:59] Speaker 03: It's consistent with Section 37. [00:04:01] Speaker 05: And 37 is, in fact, what we are talking about here. [00:04:05] Speaker 05: We're talking about its applicability to West Deptford. [00:04:11] Speaker 02: Whether or not you folks... The important thing is there's nothing it says that would be binding on West Deptford. [00:04:16] Speaker 05: That's correct, Your Honor. [00:04:17] Speaker 02: So I mean, so if it's there and it says the estimates have to be consistent with, that's very different from saying it's binding on West Deptford. [00:04:24] Speaker 05: That's absolutely true. [00:04:26] Speaker 05: But what was binding on West Deptford was its agreement that the estimates would be prepared [00:04:33] Speaker 05: pursuant to 37. [00:04:35] Speaker 05: So whether West-Depthford agreed to pay those costs is quite immaterial. [00:04:44] Speaker 05: At a minimum, it shows that West-Depthford was on actual notice, as indeed it's already acknowledged in this proceeding, that it was on actual notice as to the intent to allocate costs to it. [00:05:03] Speaker 03: You just said, doesn't, your view is it doesn't matter what they viewed the proper charge to be. [00:05:09] Speaker 03: You said it was someone, it was one-sides PJM's intent that was reflected in that agreement. [00:05:15] Speaker 03: But at least our prior decision was clear that one-sided statements of intent aren't going to comply with the [00:05:23] Speaker 03: statutory obligation to have tariff terms? [00:05:28] Speaker 03: Open, public, available notice. [00:05:31] Speaker 03: Agreed upon tariff terms. [00:05:33] Speaker 05: We're not suggesting that the facility study agreement in itself proves up the tariff. [00:05:40] Speaker 05: We're just suggesting that that agreement proves up the fact that at all pertinent times that Wes Deptford knew that PJM intended [00:05:53] Speaker 05: to charge it pursuant to 37. [00:05:57] Speaker 05: Whether it was bound at that time, that's what I'm saying is immaterial. [00:06:01] Speaker 03: So you say as a matter of law the only notice they need to have to have an exception to the [00:06:09] Speaker 03: backdrop rule of governing tariff applying, the only notice they need to have is that one party intends to charge them. [00:06:17] Speaker 05: No, I'm sorry. [00:06:18] Speaker 05: That's the way it's coming across, which makes no sense. [00:06:20] Speaker 05: Okay. [00:06:21] Speaker 05: First, let's talk about the notice. [00:06:23] Speaker 05: First of all, they had notice by the order itself. [00:06:31] Speaker 05: The letter order wraps everything together. [00:06:33] Speaker 05: The court asks for an explanation. [00:06:35] Speaker 05: Well, how does this all work together? [00:06:37] Speaker 05: Clear it up for us. [00:06:38] Speaker 05: All right, well, the fact of the matter is that what the letter order, and I might add that the letter order really wasn't discussed. [00:06:46] Speaker 03: Tell me what you mean by the letter order. [00:06:47] Speaker 05: The letter order is, I'm sorry, the letter order is the order that accepts the tariff, the tariff sheets as proposed. [00:06:55] Speaker 05: That's what I'm referring to as the letter order. [00:06:58] Speaker 05: The letter order, if I may call it that, really doesn't come up in Ferg's brief in West Deptford. [00:07:07] Speaker 05: It didn't come up below that much either. [00:07:09] Speaker 05: And it's curious because that's a statement, an order from the commission. [00:07:16] Speaker 05: that it's approving the tariff sheets. [00:07:19] Speaker 05: Now, what it says in that order, it's important to look at that order in context. [00:07:23] Speaker 05: What it says in that order is, okay, here's all the stuff that's been proposed. [00:07:29] Speaker 05: And it cites the AMP Ohio clarification in the first paragraph, if you will, of that letter order. [00:07:39] Speaker 03: Where is this letter order in the record? [00:07:41] Speaker 05: Sure, it's Joint Appendix 399. [00:07:49] Speaker 05: So if you look at the first page of 399, you'll see that the first paragraph says, the revisions include, in other words, in the first sentence it says, you made a filing of these revised tariff sheets in compliance with the commission's order, which required you to develop new procedures. [00:08:09] Speaker 05: These revisions include [00:08:11] Speaker 05: modifications to the procedures for cluster, et cetera, et cetera, procedures for studies of primary and secondary points of interconnection, and the cost allocation between queues. [00:08:25] Speaker 05: In response to AMP Ohio's request for clarification, PJM clarified that the modification [00:08:32] Speaker 05: The modification regarding cost allocation will occur only for those upgrades, et cetera, et cetera, and will be applied to the U2Q effective August 1, 2008. [00:08:46] Speaker 05: So that's the first paragraph. [00:08:48] Speaker 05: Now, when you look at the next paragraph, all right, so they talked about this is what the filing is. [00:08:53] Speaker 05: Here are the revisions. [00:08:55] Speaker 05: And the next paragraph says the filing was noticed, various comments, they refer to AMP Ohio again, they filed a request for clarification, and PJM filed its answer, and there were notices, nothing was opposed, and [00:09:10] Speaker 05: then ultimately they accept the tariff sheets as proposed. [00:09:16] Speaker 05: In other words, as proposed in conjunction with the PJM answer. [00:09:27] Speaker 05: That's why they talk about AMP Ohio. [00:09:29] Speaker 05: And I might add that to the extent [00:09:35] Speaker 05: It's also important to know that nothing was changed with respect to the how you did the cluster studies with respect to facilities, excuse me, nothing was changed with respect to how you did the studies with respect to facilities over $5 million. [00:09:59] Speaker 05: That's why it wasn't a revision. [00:10:01] Speaker 05: They changed the number. [00:10:02] Speaker 05: But it wasn't a revision when you look at the transmitter letter, for example. [00:10:07] Speaker 05: And PJM clearly says that in the transmitter letter. [00:10:10] Speaker 05: The only revision was to how they did it for facilities under $5 million. [00:10:18] Speaker 05: They did what's called a clustering. [00:10:20] Speaker 05: And the specifics aren't important. [00:10:22] Speaker 05: I'm happy to do the difference. [00:10:24] Speaker 05: So the only revision had to do with the smaller facilities [00:10:28] Speaker 05: And the larger facilities, the procedures, were left unchanged. [00:10:34] Speaker 05: So what the letter of order ultimately does, it takes the answer. [00:10:39] Speaker 05: It takes the fact that no objections were raised. [00:10:43] Speaker 05: It takes the fact that all the parties in the settlement agreement were there. [00:10:47] Speaker 05: That was the case that resolved the settlement agreement, if you will. [00:10:50] Speaker 05: It takes all that information, and it says on the basis of all that information, we approve. [00:10:56] Speaker 05: And no one had a problem with it at the time. [00:10:58] Speaker 02: You've already said that that language was not clear. [00:11:02] Speaker 02: And then went back to the agency, you're arguing as if it's just absolutely clear that West Dept. [00:11:10] Speaker 02: was bound, despite the fact that their filing was still pending when the tariff was changed in 2011. [00:11:20] Speaker 05: You mean the interconnection service agreement, Judge? [00:11:23] Speaker 05: Right. [00:11:25] Speaker 05: The court absolutely, and we're not questioning the courts, the challenges at all with respect to the ambiguities in the material that was presented to it. [00:11:36] Speaker 05: The fact is though that the letter of order wasn't clearly presented at all. [00:11:40] Speaker 05: And when we presented it in context, then it becomes quite clear what was meant and what was said, not just what was meant, what was said. [00:11:50] Speaker 05: That's where we're not challenging the ambiguity in any one particular document, although personally, we are of the view that participants in the industry clearly knew what was going on. [00:12:06] Speaker 05: There was a reason why LS Power was in that proceeding. [00:12:10] Speaker 05: The reason was because it was protecting its facilities, like its generating plants, like West Deptford. [00:12:16] Speaker 05: That's what it was doing there. [00:12:18] Speaker 05: And indeed, if you look at the settlement agreement, we're happy to provide it to the court. [00:12:23] Speaker 05: If you look at the settlement agreement, it specifically mentions Q90. [00:12:25] Speaker 05: Q90 was West Bedford. [00:12:28] Speaker 05: It was in the settlement agreement. [00:12:29] Speaker 03: Are there any FERC decisions or cases of this court saying that letters like this are legally binding interpretations of the tariff? [00:12:40] Speaker 03: Yeah, they're, well, the answer is... This has independent, legal consequence, independence of the tariff itself, independent of the tariff itself. [00:12:50] Speaker 05: Two points, if I may. [00:12:52] Speaker 05: First of all, in your, when you first heard the case, [00:12:57] Speaker 05: There was a statement that, for purposes of this case, it was agreed by the Commission and West Deptford, and you accepted that in terms of this particular case, that the transmittal letter itself could be incorporated into the tariff, and it satisfied all but the plain statement requirements of the filed-rate doctor. [00:13:22] Speaker 05: So that was the law of this case. [00:13:25] Speaker 05: That was the finding of this case, that for that purpose, the transmittal letter was pertinent merely to whether there was a plain statement. [00:13:33] Speaker 05: And with respect to whether there was a plain statement, there are cases that [00:13:47] Speaker 05: One is Old Dominion, 518 F.3.43 at 4849, indicating that FERC may look at extrinsic evidence and interpreting an ambiguous tariff provision. [00:14:05] Speaker 05: Another one, Enter G Services at 568, F3, 978, says FERC may look at extrinsic evidence, including subsequent course of performance in interpreting ambiguities. [00:14:22] Speaker 05: So there are cases I could be happy to provide you with a number of other citations. [00:14:29] Speaker 03: I think we'll hear from the other side now, but we'll give you some time for rebuttal. [00:14:32] Speaker 03: Thank you. [00:14:56] Speaker 01: Good morning. [00:14:57] Speaker 01: May it please the court, Nicholas Glad for the Commission. [00:15:00] Speaker 01: There's been a lot said about the letter order. [00:15:01] Speaker 01: I think I'd like to start there, if I might. [00:15:04] Speaker 01: I think Judge Edwards hit the nail on the head in noting that this court clearly found the Transmittal Letter to be ambiguous. [00:15:12] Speaker 01: the first time around, and even if you assume or argue under the petitioner's argument here is right that this acceptance as proposed incorporated these other documents and the language in them, that assumes that those other documents were clear and the court the first time around found each of those documents unclear. [00:15:31] Speaker 01: the Commission agreed this time around, so I don't think you can say that that as proposed language does the work that petitioners claim it does here. [00:15:39] Speaker 01: I think it's more accurate to say that it just indicates that August 1st, 2008 was the effective date and that that's the one that was in the filing and it's not some other date that the Commission was setting. [00:15:51] Speaker 01: It came from the filing itself. [00:15:53] Speaker 03: Does the Commission have a position on the legal consequence of letters like this? [00:16:00] Speaker 01: the legal consequence of a letter order like this? [00:16:04] Speaker 01: It has the same legal consequence as a commission order. [00:16:07] Speaker 01: Are you referring to specifically the as proposed language of the letter order? [00:16:13] Speaker 03: The next page of the letter talks about this acceptance for filing shall not be construed as constituting approval of the reference filing, da da da da da. [00:16:21] Speaker 03: So I'm trying to figure out how you understand this apart from [00:16:27] Speaker 03: the prior case in this case, just as a matter of law, how do you understand a letter like this? [00:16:31] Speaker 01: That paragraph in the letter of order is boilerplate in all of these letter orders, and it just indicates that because there was limited litigation in the proceeding, there were no protests filed, there were no comments going to certain issues, that the commission wasn't necessarily endorsing all of the positions that may flow from the order. [00:16:51] Speaker 01: It's just saying the filing was given to us with this effective date, the issues weren't raised, so we're accepting it with that effective date. [00:17:02] Speaker 01: And as to the paragraph lower down on that first page that my friend on the other side highlighted, that language that he pointed to, the reference to the August 1st, 2008, Q2Q, [00:17:17] Speaker 01: merely highlights the problem with the letter order as the court found it the first time around. [00:17:21] Speaker 01: It doesn't say anything about earlier cues. [00:17:24] Speaker 01: And just saying that it's effective August 1st, 2008 coinciding with that cue doesn't say anything by its own terms about the earlier cue that West Edward was in. [00:17:41] Speaker 01: I would like to [00:17:45] Speaker 03: Do you know that facility studies agreement and all those things, are they, sorry I can't, was that one of the listed things, was that filed with the, are all these studies and studies agreements always filed with the commission as part of the tariff itself or they tend to be just between the parties? [00:17:59] Speaker 01: They're just between the parties until the interconnection agreement is filed. [00:18:03] Speaker 01: My understanding is that they are attached to the interconnection agreement in most cases. [00:18:08] Speaker 03: But to... They're not filed as part of the tariff. [00:18:12] Speaker 03: That was part of a tariff filing. [00:18:13] Speaker 01: My understanding is that it's not incorporated into the tariff. [00:18:16] Speaker 01: But to petitioner's point about the facility study agreement, I'd note first that I think that argument was waived. [00:18:23] Speaker 01: It wasn't raised on rehearing to the commission. [00:18:25] Speaker 01: And even if it's not considered waived, I think the court [00:18:30] Speaker 01: clearly had it before it the first time around and found it unpersuasive and rejected essentially the same argument that petitioners are now making with regard to that facility study agreement. [00:18:43] Speaker 01: They've tried to make additional arguments about certain facts [00:18:47] Speaker 01: pertaining to that study's agreement. [00:18:51] Speaker 01: Like the person who signed it was involved in the other tariff proceeding that adopted the new tariff. [00:18:59] Speaker 01: I would note that that wasn't raised in the commission. [00:19:01] Speaker 01: It was raised, that particular point about the signatory was raised for the first time in the reply brief. [00:19:08] Speaker 01: So to the extent that may be material, the commission hasn't had a chance to opine on it. [00:19:15] Speaker 03: You have a view on their argument about the meeting of section 219? [00:19:20] Speaker 01: In the new tier. [00:19:21] Speaker 01: Yeah, I think our position is that it's improperly before the court. [00:19:26] Speaker 01: Everyone, in the first iteration of this case, everyone assumed that the commission's interpretation was pretty clear. [00:19:35] Speaker 01: It would have made no sense for West Defer, now intervener in this case, to [00:19:41] Speaker 01: push the arguments that it was making if the commission's interpretation was otherwise because it would have... Well, let's just say it was an open question and there was no need to deal with it until... [00:19:52] Speaker 03: the decision of West Dip for vacating the initial commission decision and remanding. [00:19:57] Speaker 03: Their argument is there was no point to deal with it then. [00:19:59] Speaker 03: There may have been more to be litigated, more litigation risk for both sides to confront, but it just didn't make sense to address that issue until it looked like there was at least a reasonable prospect of being governed by the new tariff. [00:20:13] Speaker 03: And so isn't that a fair understanding of how remands work in that you get to raise new issues that are implicated by the scope of the remand? [00:20:22] Speaker 01: I think in this case, no, Your Honor, because had this potential interpretation been contemplated the first time around, West Deptford would have needed to defend itself against that, because otherwise it would have been on the hook for these costs, regardless of which version of the tariff applied. [00:20:40] Speaker 03: Well, I don't know if we can determine the scope of a waiver by just the argument that someone else would have argued something differently. [00:20:47] Speaker 03: I'm asking you structurally about the nature of a remand. [00:20:50] Speaker 03: Isn't it true that when there's a remand, parties are free to raise issues that weren't raised before because new things are now in play in light of the remand? [00:20:59] Speaker 01: I think that's fair, Your Honor, and I think that's consistent with the radio television opinion, saying the Commission has discretion to open the hole of its proceeding on remand. [00:21:10] Speaker 01: And I think the more important point here is that despite the fact that this may have been improperly waived or improperly raised on remand, the Commission went to great length to try and clarify its interpretation and explain why it was interpreting the tariff in the way that it was. [00:21:29] Speaker 03: They say the whole system won't work. [00:21:31] Speaker 03: If you interpret the new terror this way, that it won't work because people won't be able to plan properly, there won't be stability. [00:21:37] Speaker 03: What is your response to that? [00:21:39] Speaker 03: Or the Commission's response to that? [00:21:41] Speaker 03: There wasn't a whole lot of that in their actual opinion. [00:21:45] Speaker 01: The Commission's response to that is that it hasn't been shown to be true. [00:21:52] Speaker 01: It's at best speculative. [00:21:54] Speaker 01: Their concern about delay is counteracted by strict timelines that PJM has for these types of agreements and requiring signings by certain dates. [00:22:05] Speaker 01: also bolstered by the fact that PGM rarely changes these types of cost allocation provisions in its tariff. [00:22:13] Speaker 01: And the Commission also noted in a footnote, I believe it was [00:22:23] Speaker 01: JA021, note 36. [00:22:25] Speaker 01: The commission noted that delay is equally possible under the petitioner's interpretation of the tariff because there's nothing stopping an interconnection customer from delaying its entering the queue or signing these agreements. [00:22:43] Speaker 01: That delay is equally possible in that context. [00:22:46] Speaker 01: And there's no strict timeline governing that, so no protection that the commission identified that exists with regard to the actual filing of the agreement. [00:22:56] Speaker 03: Thank you very much. [00:23:06] Speaker 04: your honors may please the court ashley perish for west stepford what i'd like to do judgment letters answer one of your questions and then just briefly discussed three threshold problems with each of the three arguments uh... judgment you'd asked whether uh... the transmittal letter or the order accepting it could be binding or not there is a case of louisiana gas at one three seven for paragraph sixty one one ninety five at paragraph fifty four that says [00:23:34] Speaker 04: applicants' OATT provisions rather than the statements in the Transmittal Letter are binding on the applicants. [00:23:42] Speaker 04: And so the Commission has always said in the context of the file rate doctrine that although these other documents may have meaning, they're not binding the tariff controls. [00:23:51] Speaker 04: That takes me to really the three what I think are legal threshold problems with their arguments. [00:23:55] Speaker 04: First, they have no legal theory as to when you're allowed to consider extrinsic evidence outside the tariff itself. [00:24:01] Speaker 04: They just assume on the idea that if there is extrinsic evidence, they can point to it and then create ambiguity in the document, but they point to nothing in the tariff itself that is ambiguous. [00:24:13] Speaker 04: Second, they have no legal theory in response to the Court's questions in its first opinion as to what type of notice would be legally adequate. [00:24:21] Speaker 04: The whole point of the filed-rate doctrine, if you think of the old common carriers, is that you could go to a railroad and say, [00:24:27] Speaker 04: I don't care what you're telling me right now, the price is, the filed rate said it's $5 to take me from New York to Seattle and I want that $5 rate and the filed rate doctrine would apply regardless of what the common carrier wants to do in terms of discriminating in any particular case. [00:24:42] Speaker 04: And third, I don't think they have an answer to the waiver. [00:24:45] Speaker 04: Judge Millett, to your question, I think that the rule of sort of judicial procedure is a little bit more narrow than you described it in the sense that you're allowed to raise new arguments on remand, but they have to be implicated by the court's decision. [00:24:58] Speaker 04: This particular case was always litigated on the premise that if 37, the superseded tariff controlled, then West Upford would lose, and that if the Section 219 tariff controlled, we would win. [00:25:10] Speaker 04: And that premise could have been challenged as an argument in the alternative in the proceedings before FERC or in this appeal and it wasn't, therefore it's waived. [00:25:18] Speaker 03: Was it determined by FERC previously that that's what it meant or was it just assumed by the parties for purposes of prior proceedings? [00:25:25] Speaker 04: The way I would say is it was not determined by FERC, but it was presented by the parties that that was the dispute to be resolved. [00:25:33] Speaker 04: They could have easily raised an alternative grounds for basically affirmance, and they did not raise that. [00:25:39] Speaker 04: In fact, the whole litigation proceeded on this. [00:25:41] Speaker 03: That sounds more like an estoppel argument than a waiver argument. [00:25:44] Speaker 04: Your Honor, I think Judge Starr's opinion in this Court's Northwest Indiana case sort of treats it like that, which is to say, for purposes of judicial procedure, we can't let someone keep an argument and wait. [00:25:53] Speaker 04: And then it's true, if the Court's decision opens it up, then you can re-raise it. [00:25:57] Speaker 04: You can't just raise something that you've forfeited before. [00:26:00] Speaker 04: We'd urge the Court to go ahead and further the commission. [00:26:03] Speaker 04: Thank you for your time. [00:26:08] Speaker 03: Mr. Eisenstadt, we'll give you two more minutes. [00:26:17] Speaker 05: First, with respect to what the court has done with respect to these types of cases, I refer you to Public Utilities Commission 988, F2nd 154 at 163. [00:26:34] Speaker 03: With respect to... Sorry, what is that with respect to? [00:26:37] Speaker 03: What point? [00:26:38] Speaker 05: with respect to the court inquires as a practical matter, as a practical matter what's being said. [00:26:45] Speaker 05: The court's looking for context. [00:26:48] Speaker 05: You have to look at these kinds of filings in the context of what's being said, how they are understood, the totality of the circumstances. [00:26:58] Speaker 05: That's what the courts have routinely done. [00:27:01] Speaker 05: That's what FERC has done. [00:27:02] Speaker 03: Is that case in your brief? [00:27:03] Speaker 03: I'm sorry? [00:27:03] Speaker 03: Is that case in your brief? [00:27:04] Speaker 05: Yes, the totality of the circumstances, ma'am, is in the brief. [00:27:08] Speaker 05: Totality of evidence, totality of circumstances. [00:27:11] Speaker 05: Is that case in your brief? [00:27:11] Speaker 05: I believe Public Utilities Commission is in the brief. [00:27:16] Speaker 01: Okay. [00:27:16] Speaker 05: I should also mention that there is a FERC order, as Louisiana [00:27:24] Speaker 05: The FERC order is 122 FERC 61069 where the commission on [00:27:42] Speaker 05: Paragraphs 13 and 14, actually it's paragraphs 50, 51, where the commission says, however, although we are not finding that Iceland-Lingon violated a particular section, and they're referring to in this case about whether it's retroactive rate-making, [00:28:01] Speaker 05: Do not violate the section in order to prevent future similar misunderstandings. [00:28:06] Speaker 05: We expect ICE in New England to amend the language at issue so that the tariff on file is consistent with ICE in New England's earlier actions. [00:28:14] Speaker 05: They talk about the transmittal letter in that same paragraph, and in the next paragraph they say, this language clearly signals that, notwithstanding the omission of words to that effect in the version of section [00:28:29] Speaker 05: It's a long section, which ICE in New England actually submitted to the Commission. [00:28:34] Speaker 05: ICE in New England intended to include existing units in its overlapping impact tests, et cetera. [00:28:41] Speaker 05: With respect to the letter order, the Commission did not address the letter order. [00:28:47] Speaker 05: FERC did not present the letter order. [00:28:49] Speaker 05: In fact, on oral argument before this Court, it was observed that the letter order was basically nowhere to appear, that FERC relied on the Transmittal Letter and on PJM's answer. [00:29:01] Speaker 05: That's what it relied on. [00:29:02] Speaker 05: And it never put everything together. [00:29:07] Speaker 05: with respect to that letter order and not saying anything about earlier cues. [00:29:13] Speaker 05: The whole point was how this was to work. [00:29:16] Speaker 05: The reason why it said starting with the U2 cue, [00:29:21] Speaker 05: The reason it said that is because the U2Q closed August 31. [00:29:29] Speaker 05: That means it was going to be studied pursuant to the new procedures as of August 1. [00:29:35] Speaker 05: That's what it means. [00:29:36] Speaker 05: And that's why FERC said, excuse me, that's why the PJM said at page 2 of the transmittal letter, [00:29:42] Speaker 05: that that date, this effective date, is necessary to allow the proposed changes to become effective with the date of the next open queue. [00:29:52] Speaker 05: So the studies, the studies that are going to be done are going to be done post-August 1. [00:29:59] Speaker 05: That's the idea. [00:30:01] Speaker 05: And that's what FERC said in its answer. [00:30:04] Speaker 03: Thank you very much for your time. [00:30:08] Speaker 03: Thank you.