Senator Feinstein Files Amicus Brief in Support of Lawsuit to Force the FERC to Regulate Wholesale Electricity Rates
June 13, 2001

San Francisco, Calif. – U.S. Senator Dianne Feinstein (D-Calif.) today filed an Amicus Curiae brief in support of a lawsuit that would force the Federal Energy Regulatory Commission (FERC) to regulate wholesale electricity rates in California.

On May 22, 2001, Senator John Burton, President Pro Tempore of the California State Senate, Assemblyman Robert M. Hertzberg, Speaker of the California Assembly, and the City of Oakland jointly filed a petition in the Ninth Circuit Court of Appeals charging that the FERC has not fulfilled its responsibility to ensure just and reasonable rates, as mandated by the Federal Power Act.

The original request was denied by the Ninth Circuit Court of Appeals on May 29, 2001. Petitioners, however, immediately filed an appeal, which is currently pending before the court, and which requested a rehearing en banc.

“Out of state power suppliers are holding Californians hostage, reaping record profits, disrupting the electricity supply and driving one of the State’s largest investor-owned utilities into bankruptcy,” Senator Feinstein wrote in the brief.

“Twenty-four years ago, Congress instituted safeguards to protect against such abuses by providing the Federal Energy Regulatory Commission with the authority to act against price gouging. Today, in the face of our energy crisis, FERC has failed in its responsibility.”

In her brief, Senator Feinstein argues that:

• FERC’s unreasonable delay in regulating rates impacts Californian’s Health, Safety and Welfare;
• FERC’s failure to act denies Californians' Due Process and Equal Protection; and
• Rehearing en banc is an appropriate in this proceeding presenting questions of exceptional importance.

Senator Feinstein continued, “FERC’s failure to ensure just and reasonable rates of electricity has astounded many of us. In cases where FERC finds that rates are unjust and unreasonable, FERC has the authority and the responsibility to regulate the market and to bring wholesale prices to reasonable levels. FERC’s failure to act has forced California into this energy crisis of unprecedented proportions. The people of California are crying out for relief and FERC has both the authority and responsibility to heed this call. The health, safety and welfare of Californians is at risk.

Despite media coverage to the contrary, nowhere in Petitioners Emergency Petition for Writ of Mandamus have Petitioners asked this court to impose rate caps. In fact, Petitioners do not seek rate caps. To the contrary, this carefully worded Emergency Petition simply alleges that FERC has a duty to act, has failed to act and asks this Court to mandate action.”

In the Ninth Circuit, a three part test applies to determine whether to grant relief. First, petitioners must show a clear and certain claim. Second, the duty to be enforced is ministerial and so plainly prescribed as to be free from doubt. Finally, no other adequate remedy is available.

“By failing to act, FERC has unlawfully delayed its responsibility to ensure just and reasonable rates. FERC’s duty is set forth in mandatory terms. Accordingly, FERC’s duty to ensure just and reasonable rates is not discretionary; rather, it is mandatory. FERC has failed to act in blatant violation of its statutory mandate.”

“Petitioners have shown that they have a clear and certain claim, FERC’s duty is mandatory, no other adequate remedy is available. Accordingly, the emergency petition for writ of mandamus should be granted and this court should issue a writ requiring FERC to fulfill its statutory obligations.”

A complete copy of Senator Feinstein’s amicus brief is available upon request.