Allco Renewable Energy Ltd. v. Massachusetts Electric Co. ( 2017 )

United States Court of Appeals
For the First Circuit
No. 17-1296
ALLCO RENEWABLE ENERGY LIMITED,
Plaintiff, Appellant,
v.
MASSACHUSETTS ELECTRIC COMPANY, agent of National Grid;
ANGELA M. O'CONNOR, individually and in her official capacity as
Chairperson of the DPU; JOLETTE A. WESTBROOK, individually and
in her official capacity as Commissioner of the DPU;
ROBERT HAYDEN, individually and in his official capacity as
Commissioner of the DPU; JUDITH JUDSON, individually and in her
official capacity as Commissioner of the MDER,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Eric L. Christensen, with whom Cairncross & Hempelmann, P.S.,
Thomas Melone, and Allco Renewable Energy Limited were on brief,
for appellant.
Michael Kunselman, with whom Alston & Bird LLP, Anthony J.
Marchetta, and Day Pitney LLP were on brief, for appellee
Massachusetts Electric Company d/b/a National Grid.
Timothy J. Casey, Assistant Attorney General, Government
Bureau, with whom Maura Healey, Attorney General of Massachusetts,
was on brief, for state appellees O'Connor, Westbrook, Hayden, and
Judson.
November 13, 2017
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TORRUELLA, Circuit Judge. This case arises from the
efforts of Allco Renewable Energy Limited ("Allco") to enforce
section 210 of the Public Utility Regulatory Policies Act
("PURPA"), 16 U.S.C. § 824a-3, against Massachusetts Electric
Company d/b/a National Grid ("National Grid"). The district court
dismissed Allco's claim against National Grid because section 210
does not provide a private right of action against utility
companies (such as National Grid). The district court was
correct, so we affirm that dismissal. Allco also appeals the
district court's denial of its motion for additional relief against
various Massachusetts Department of Public Utilities (MDPU)
officials (collectively, the "state defendants") after the
district court invalidated certain MDPU regulations as
inconsistent with PURPA. The district court did not abuse its
discretion in doing so, so we affirm that decision as well.
I. BACKGROUND
A.
We begin with an overview of the statutory scheme at the
heart of this case. Congress passed PURPA in 1978 in response to
the ongoing energy crisis that plagued the nation. FERC v.
Mississippi, 456 U.S. 742, 745 (1982). Section 210 of PURPA seeks
to lessen the United States' reliance on oil and natural gas by
encouraging the development of energy-efficient cogeneration and
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small power production facilities. Id. at 750. See 16 U.S.C.
§ 824a-3. "Cogeneration facilities capture otherwise-wasted heat
and turn it into thermal energy; small power-production facilities
produce energy (fewer than 80 megawatts) primarily by using
'biomass, waste, renewable resources, geothermal resources, or any
combination thereof.'" Portland Gen. Elec. Co. v. FERC, 854 F.3d
692, 695 (D.C. Cir. 2017) (quoting 16 U.S.C. § 796(17)). Both of
these categories of facilities are known as "qualifying
facilities" ("QFs") under PURPA.
Congress found that traditional electric utilities'
reluctance to transact with these nontraditional facilities posed
an obstacle to facilitating their development. FERC, 456 U.S. at
750. It sought to address this by requiring utilities to do so.
Thus, section 210(a) of PURPA directed the Federal Energy
Regulatory Commission ("FERC") to promulgate rules mandating that
electric utilities purchase energy from QFs. 16 U.S.C. § 824a-
3(a). Those rules, section 210(b) specified, were not to "provide
for a rate which exceeds the incremental cost to the electric
utility of alternative electric energy." Id. § 824a-3(b). PURPA
defines "incremental cost" as "the cost to the electric utility of
the electric energy which, but for the purchase from such
cogenerator or small power producer, such utility would generate
or purchase from another source." Id. § 824a-3(d). In accordance
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with this directive, FERC promulgated regulations requiring
utilities to purchase electricity from QFs "at a rate equal to the
utility's full avoided cost." Am. Paper Inst. v. Am. Elec. Power
Serv. Corp., 461 U.S. 402, 405-06 (1983) (citing 18 C.F.R.
292.304(b)(2)). Crucially, given section 210's purpose, the
avoided cost rate "usually exceeds the market price for wholesale
power." Portland Gen., 854 F.3d at 695. Additionally, section
210(f) of PURPA instructs state regulatory authorities to
implement these FERC rules. 16 U.S.C. § 824a-3(f); see also
Portland Gen., 854 F.3d at 695 ("Under PURPA, state utility
commissions are responsible for calculating the avoided-cost rates
for utilities subject to their jurisdiction").
Key to this case is understanding PURPA's framework for
enforcing its requirement that states implement FERC's PURPA-
implementing rules. Sections 210(g)-(h) of PURPA create "an
overlapping scheme of federal and state judicial review of state
regulatory action taken pursuant to PURPA." Greenwood ex rel.
Estate of Greenwood v. N.H. Pub. Utils. Comm'n, 527 F.3d 8, 10 n.1
(1st Cir. 2008). First, PURPA allows a QF to petition FERC to
bring an enforcement action against a state on the grounds that
the state has failed to properly implement PURPA. 16 U.S.C.
§ 824a-3(h). With respect to private enforcement, PURPA's
enforcement scheme contemplates two types of private actions
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against a state utility regulatory agency: "implementation"
challenges and "as-applied" challenges. Exelon Wind 1, L.L.C. v.
Nelson, 766 F.3d 380, 388 (5th Cir. 2014); Power Res. Grp., Inc.,
v. Pub. Util. Comm'n of Tex., 422 F.3d 231, 234-35 (5th Cir. 2005).
Implementation challenges involve claims that a state
agency has failed to properly implement FERC's regulations
governing the purchase of energy from QFs. Power Res. Grp., 422
F.3d at 235. As-applied challenges, meanwhile, involve claims
that a utility has failed to abide by a state's regulations
implementing PURPA. See Portland Gen., 854 F.3d at 698 (citing
16 U.S.C. § 824a-3(g)(2)). While federal district courts have
exclusive jurisdiction over implementation challenges, only state
courts may hear as-applied challenges. Id. Additionally, an
individual seeking to bring an implementation challenge may only
do so after having petitioned FERC to bring an implementation
enforcement action, and only if FERC has not initiated an action
within sixty days of receiving the petition. 16 U.S.C.
§ 824a-3(h)(2)(B).
Finally, and crucially, PURPA's text does not make any
reference to the possibility of a QF bringing any sort of action
against a utility in federal court.
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B.
On March 28, 2011, Allco offered to sell National Grid
the entire generation output from eleven of its solar energy
generating QFs located in Massachusetts. These QFs all have a
production capacity between one and thirty megawatts. Consistent
with Mass. Code Regs. § 8.03(1)(b)(2), Allco offered to negotiate
a purchase agreement with National Grid. On April 18, 2011,
National Grid declined to negotiate a contract with Allco, but
offered instead to purchase Allco's energy under its standard power
purchase contract. The methodology for arriving at the price rate
in National Grid's standard contract complied with the relevant
MDPU regulations governing that calculation. See 220 Mass. Code
Regs. § 8.05(2)(a).
On August 3, 2011, Allco, pursuant to 220 Mass. Code
Regs. § 8.03(1)(c), petitioned the MDPU to investigate the
reasonableness of National Grid's response to Allco's offer.
Allco further requested a declaration that National Grid was
legally obligated to purchase energy from Allco's QFs for a term
of twenty-five years, at the rate of its avoided costs, calculated
using the rate-forecasting methodology the MDPU employed in a
specific 2010 proceeding. The MDPU denied that petition on
July 22, 2014, finding National Grid's offer to Allco both
reasonable and consistent with its regulations.
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In response, Allco petitioned the FERC to bring an
enforcement action against MDPU on the grounds that MDPU's
regulations clashed with PURPA. FERC declined to do so. Under
PURPA, that allowed Allco to sue the MDPU. See 16 U.S.C.
§ 824a-3(h)(2)(B).
C.
On October 6, 2015, Allco sued National Grid and the
state defendants in the District of Massachusetts. Allco
contended that the MDPU regulations at issue conflicted with FERC's
regulations implementing PURPA. Specifically, it maintained that
the MDPU regulations ran afoul of 18 C.F.R § 292.304(d)(2) in
denying QFs the option of calculating the utility's avoided costs
either "at the time of delivery" or "at the time the obligation is
incurred." Allco also sought a declaration that National Grid had
a "legally enforceable obligation" to buy the output of Allco's
QFs for a twenty-five-year term, at the rate of National Grid's
long-term avoided costs. Finally, Allco requested damages from
National Grid for its lost income. National Grid moved to dismiss
Allco's complaint for failure to state a claim. Allco moved for
summary judgment of its claims against National Grid and the state
defendants.
Meanwhile, at the district court's request, FERC filed
an amicus brief. In that brief, FERC "decline[d] to provide a
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definitive opinion as to the specific question of whether [MDPU's]
regulations are consistent with PURPA, or with FERC's
implementation of PURPA." In lieu of taking a definitive stance
on any of the questions before the court, the brief only generally
discussed those issues in broad terms.
The district court granted Allco's motion for summary
judgment of its challenge to the MDPU's regulations. It denied
Allco's motion for summary judgment of its claim for damages and
declaratory relief against National Grid. Finally, it granted
National Grid's motion to dismiss those claims. Specifically, the
district court concluded that Allco did not have a private cause
of action to enforce National Grid's obligation to purchase its
QFs' output. Allco Renewable Energy Ltd. v. Mass. Elec. Co., 208
F. Supp. 3d 390, 395-97 (D. Mass. 2016). The district court then
denied Allco's motions for reconsideration and additional relief
against the state defendants. Allco appeals the district court's
dismissal of its claims against National Grid and denial of further
relief against the state defendants.
Lastly, after the district court struck down its
regulations as inconsistent with PURPA, the MDPU initiated a
rulemaking to satisfactorily replace those regulations.
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II. ALLCO'S EFFORTS TO SUE NATIONAL GRID TO ENFORCE PURPA'S
"MUST-BUY" OBLIGATION
Allco contends that under PURPA, National Grid has "an
obligation to purchase all energy offered by Allco," and that it
may sue National Grid to enforce that obligation.
As an initial matter, section 210 of PURPA expressly
authorizes three types of enforcement actions: (1) implementation
challenges by FERC against states in federal court, 16 U.S.C.
§ 824a-3(h)(2)(A); (2) implementation challenges by QFs against
states in federal court, id. § 824a-3(h)(2)(B); and (3) as-applied
challenges by QFs against utilities in state court, id. § 824a-
3(g). Allco contends that section 210 also implicitly allows QFs
to sue utilities in federal court to enforce the must-buy
obligation.
Alexander v. Sandoval, 532 U.S. 275 (2001), guides our
analysis. There, the Supreme Court held that "private rights of
action to enforce federal law must be created by Congress." Id.
at 286. When a statute does not contain an express private cause
of action, courts "must interpret the statute Congress has passed
to determine whether it displays an intent to create not just a
private right but also a private remedy." Id. (emphasis added).
Statutory intent is dispositive, and "[w]ithout it, a cause of
action does not exist and courts may not create one, no matter how
desirable that might be as a policy matter, or how compatible with
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the statute." Id. at 286-87. In other words "a private right of
action under federal law is not created by mere implication, but
must be 'unambiguously conferred.'" Armstrong v. Exceptional
Child Center, Inc., 135 S. Ct. 1378, 1387-88 (2015) (plurality
opinion) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)).
Additionally, certain factors cut against finding an
implied private cause of action in a given statute, such as the
existence of other express enforcement provisions. The Court in
Sandoval explained that the "express provision of one method of
enforcing a substantive rule suggests that Congress intended to
preclude others." 532 U.S. at 290. Indeed, "[s]ometimes [that]
suggestion is so strong that it precludes a finding of
congressional intent to create a private right of action, even
though other aspects of the statute . . . suggest the contrary."
Id. (citation omitted); see also Bonano v. East Caribbean Airline
Corp., 365 F.3d 81, 85 (1st Cir. 2004) (holding that Congress's
express provision of a solitary private right of action under the
Federal Aviation Act weighed against finding additional implied
rights). This is doubly so when a statute's express enforcement
scheme is complex, and when agencies play a role in enforcing the
statute. See Armstrong, 135 S. Ct. at 1385 (2015) ("The sheer
complexity associated with enforcing § 30(A), coupled with the
express provision of an administrative remedy . . . shows that the
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Medicaid Act precludes private enforcement of § 30(A) in the
courts.").
Allco, therefore, faces an uphill battle in asserting
that section 210 implicitly provides a private right of action
apart from the enforcement mechanisms it expressly contemplates.
Nonetheless, Allco makes copious arguments to the effect that
Congress must have intended to give QFs a right to enforce PURPA's
"must-buy" obligation against utility companies. We consider its
principal arguments in turn.
First, Allco points to the Supreme Court's comment in
FERC v. Mississippi that states may satisfy their obligations under
section 210 of PURPA, among other ways, "by resolving disputes on
a case-by-case basis." 456 U.S. at 751. This language, it
furthers, implicitly recognized a private right of action against
utilities.
It is difficult to see how recognizing that states may
resolve disputes on a case-by-case basis amounts to recognizing a
private right of action against a utility in federal court. As
National Grid suggests, it makes most sense to understand that
language as referring to state court adjudication of as-applied
challenges. In any event, this line cannot suffice to satisfy
Sandoval's demand for indicia of Congressional intent to create a
private right.
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Second, Allco, citing Transamerica Mortgage Advisors,
Inc. v. Lewis, 444 U.S. 11, 19 (1979), argues that when Congress
"addresses contract-like rights . . . it intends the customary
legal incidents attendant to those rights to be available[,]
including suit." Thus, because PURPA obligates National Grid to
purchase energy from Allco's QFs, Congress must have intended to
give QFs the means of enforcing that contract-like obligation.
However, Transamerica's holding only addressed Congressional
declarations that "certain contracts are void," in which case "the
customary legal incidents of voidness would follow." Id. Yet,
Allco avers that the Second and Ninth circuits have extended
Transamerica beyond the context of voidness. See First Pac.
Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1123 (9th Cir. 2000);
Oneida Indian Nation v. Cty. of Oneida, 719 F.2d 525, 535 (2d Cir.
1983).
But, this argument is unavailing because no contract
exists between Allco and National Grid. Section 210 of PURPA does
not create a contract. Rather, it merely creates an obligation
to enter into a contract at a regulation-specified cost rate.
Here, Allco and National Grid never agreed upon a cost rate, nor
has any regulation or court set that rate. Indeed, Allco does not
allege breach of contract, not could it, given that no contract
exists. Unlike in the cases Allco cites, this case does not
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involve a contract or other enforceable obligation from which any
"customary legal incidents" could follow.
Third, Allco highlights that section 210 of PURPA
contains "rights-creating language," in addition to an intent to
confer those rights on a specific class of persons. Nothing, it
furthers, indicates that Congress intended to leave those rights
unenforceable. However, Allco inverts the proper analysis. We
don't look for indicia that Congress meant to leave rights
unenforceable. Rather, a right of action only exists where
Congress has clearly intended one. Sandoval, 532 U.S. at 286.
Further, while rights-creating language is a necessary condition
to finding a private remedy, it is alone insufficient to support
an implied remedy. Bonano, 365 F.3d at 84 (citing Gonzaga, 536
U.S. at 283-84). Also relevantly, the court in Sandoval considered
the case of language of this sort. It indicated that the notion
that Congress typically provides an express remedy at the exclusion
of all others can even overcome language "making the would-be
plaintiff a member of the class for whose benefit the statute was
enacted." Sandoval, 532 U.S. at 290 (internal quotation marks
omitted).
Thus, Allco fails to show that Congress, by way of
section 210's rights-creating language, intended to create an
additional remedy to those it established expressly.
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Fourth, Allco argues that the district court's failure
to find a private federal cause of action against utilities places
QFs with a capacity of over 30MW (which Allco's are not) in a "no
man's land" where they have no remedy. Congress, it argues, could
not have intended this result. Allco bases this argument on
subsection 210(h)(1)'s provision that subsection 210(g)'s state
court adjudication process does not apply to the "operations" of
QFs that are subject to FERC jurisdiction under part II of the
Federal Power Act (FPA). This includes QFs with a production
capacity of greater than 30MW. 18 C.F.R. § 292.601(b).
But, as National Grid correctly highlights, subsection
210(h)(1) specifically provides that in cases of regulatory
overlap between PURPA and the FPA, the challenged PURPA regulation
"shall be treated as a rule under the [FPA]." As a result, the
FPA's enforcement scheme would be available to QFs with a
production capacity of greater than 30MW. Under the FPA, any
person may file a complaint with FERC, 18 C.F.R. § 385.206(a), and
FERC's decision is subject to judicial review in the D.C. Circuit,
16 U.S.C. § 825l(b). This is far from the remedy-less "no man's
land" that Allco alleges. In fact, the very case that Allco relies
on in making this argument describes the process by which QFs with
a production capacity of greater than 30MW may obtain judicial
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review of PURPA regulations that overlap with FPA regulations.
See Portland Gen., 854 F.3d at 697-700.
Fifth, Allco maintains that failing to find a private
remedy against National Grid leaves it stranded in another "no
man's land," where it must "wait and hope that the MDPU takes some
action that would be compliant with PURPA."
Allco overstates the irregularity and gravity of this
situation. The district court entered its order invalidating the
MDPU's regulations on September 23, 2016. In response, the MDPU
commenced a rulemaking on March 21, 2017 to promulgate PURPA-
compliant regulations. The MDPU sought public comment until
April 28, 2017. Allco's eagerness for the MDPU to conclude this
process so that it may enter into a contract with National Grid
under the resulting PURPA-compliant regulations is understandable.
Yet, waiting for the MDPU to promulgate those regulations does not
quite amount to a "no man's land." Allco's rhetorical flourish
ignores the mundane and commonplace nature of waiting for an agency
to conclude a rulemaking process. Indeed, at any given moment,
countless men (among others) can be found in this land of awaiting
finalized agency rules. Allco's temporary visit there does not
show that Congress meant to give it a private right under PURPA.
As the MDPU points out, as soon as it finishes
promulgating the regulations in question, Allco is free to submit
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an offer to National Grid to purchase its generation output. If
the parties fail to reach an agreement within ninety days, and
Allco believes that National Grid has acted unreasonably, then it
may file a petition with the MDPU under 220 Mass. Code Regs.
§ 8.03(1)(c). Allco could then challenge any resulting adverse
MDPU decision in state court. Mass. Gen. Laws ch. 25, § 5.
Moreover, if Allco comes to believe that the MDPU's new rule
violates PURPA, it will be able to petition FERC to bring an
implementation challenge. See 16 U.S.C. § 824a-3(h)(2)(B).
Should FERC decline that invitation, Allco could itself bring an
implementation challenge. Id. If Allco believes that the MDPU's
regulations violate PURPA as applied to its dealings with National
Grid, it will be able to bring an as-applied challenge in state
court.1 Id. at § 824a-3(g).
In other words, the "no man's land" in which Allco
purports to find itself is illusory. And again, even were it not,
that would still fall well short of showing that Congress
unequivocally conferred upon QFs a private right of action against
utilities to enforce PURPA's must-buy provision.
1 Additionally, to the extent that Allco accuses the MDPU of
sitting on its hands or otherwise not acting with sufficient
diligence in promulgating the regulations in question, the proper
remedy would still not be to sue National Grid.
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Allco's last set of arguments all involve the FPA. In
brief, Allco maintains that it enjoys a private right of action
both under section 210(h)(1) of PURPA -- which, it says, makes the
must-buy obligation privately enforceable as a rule under the FPA
-- and independently under sections 205-06 of the FPA, 16 U.S.C.
§§ 824d, 824e.
Section 210(h)(1) of PURPA provides that:
For purposes of enforcement of any rule prescribed by
the Commission under subsection (a) of this section
with respect to any operations of an electric utility
[or a QF] which are subject to the jurisdiction of
the Commission under part II of the Federal Power Act,
such rule shall be treated as a rule under the Federal
Power Act. Nothing in subsection (g) of this section
shall apply to so much of the operations of an
electric utility, a qualifying cogeneration facility
or a qualifying small power production facility as
are subject to the jurisdiction of the Commission
under part II of the Federal Power Act.
16 U.S.C. § 824a-3(h)(1) (citations omitted). Subsection (h)(1)
therefore accomplishes two things. First, it channels FERC's
enforcement of a certain subset of rules that it has promulgated
pursuant to PURPA -- specifically, those pertaining to QF
operations subject to FERC's jurisdiction under part II of the
Federal Power Act -- into the FPA's enforcement scheme. See
Portland Gen., 854 F.3d at 699. Second, subsection (h)(1) also
prevents QFs from bringing as-applied challenges involving FERC
rules of that sort.
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Part II of the FPA pertains only to "the transmission of
electric energy in interstate commerce and to the sale of electric
energy at wholesale in interstate commerce." 16 U.S.C.
§ 824(b)(1); see also Portland Gen., 854 F.3d at 697. Even if we
assume that FERC's rules regarding the must-buy obligation are
rules regarding the operations of QFs subject to part II of the
FPA, that would only make those rules enforceable as rules under
the FPA. The question would then become whether the FPA gives
Allco a private right of action to enforce those rules against
National Grid. Accordingly, this argument collapses into Allco's
separate contention that the FPA independently gives it a right to
enforce PURPA's must-buy obligation against National Grid. We
thus need not reach Allco's argument that its potential sales to
National Grid would be subject to regulatory overlap with the FPA
because, even assuming that were correct, its contention that the
FPA would provide it with a private right of action against
National Grid fails.
Turning to that argument that the FPA allows Allco to
sue National Grid, we first note that the FPA's text does not
explicitly confer a private right of action. See 16 U.S.C.
§§ 824d, 824e. Furthermore, we see nothing in that text
indicating that Congress meant to confer such a right, much less
unambiguously. We also note that Allco does not cite any cases
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holding that the FPA contains a private right against a utility.
The same is true of the FPA's sister statute, the Natural Gas Act
(NGA), 15 U.S.C. § 717 et seq., which courts interpret in parallel
to the FPA, Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 n.7 (1981)
(noting that because the FPA and the NGA "are in all material
respects substantially identical," the Supreme Court has developed
an "established practice of citing interchangeably decisions
interpreting the pertinent sections of the two statutes" (quoting
FPC v. Sierra Pac. Power Co., 350 U.S. 348, 353 (1956))).
Moreover, a number of courts have concluded that the NGA
does not contain such a right. See Great Lakes Gas Transmission
Ltd. P'ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329-30 (8th
Cir. 2016); Columbia Gas Transmission, LLC v. Singh, 707 F.3d 583,
587 (6th Cir. 2013); Clark v. Gulf Oil Corp., 570 F.2d 1138, 1150
(3d Cir. 1977). We agree with them, and thus conclude that the
FPA does not provide a private right either. We are especially
comfortable with this conclusion given the elaborate framework for
FERC enforcement that section 206 of the FPA does expressly set
out. See 16 U.S.C. §§ 824m-p. Therefore, because the FPA
resoundingly does not confer a private right, it is of no help to
Allco in its search for a private right to enforce PURPA's must-
buy obligation against National Grid.
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To wrap up, none of Allco's arguments about PURPA
overcome two fundamental truths about that statute: (1) its text
does not expressly provide for private enforcement of that sort;
and (2) its text does expressly provide for an intricate
enforcement framework, involving both FERC and private litigants,
in state and federal court. Allco's assertion that the FPA gives
it a private right against National Grid is similarly unavailing.
The district court therefore correctly granted National Grid's
motion to dismiss because PURPA does not give Allco a private right
of action against National Grid.
III. ALLCO'S EFFORTS TO OBTAIN ADDITIONAL RELIEF AGAINST THE
STATE DEFENDANTS
We now consider Allco's contention that the district
court should have gone beyond simply invalidating the MDPU's
regulations, and calculated National Grid's avoided costs.
"Judgment calls, including the lower court's choice of equitable
remedies, are afforded substantial deference and will be disturbed
only if the court has made a significantly mistaken judgment."
Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Municipality of
San Juan, 773 F.3d 1, 7 (1st Cir. 2014) (citing Rosario-Torres v.
Hernández-Colón, 889 F.2d 314, 323 (1st Cir. 1989) (en banc)).
The state defendants argue that we lack jurisdiction to
decide this issue because Allco seeks to challenge a judgment that
was in its favorable. However, Allco is not merely trying to
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procure appellate review of statements or findings contained in a
judgment in its favor, as was true in the case on which the state
defendants rely. See Elkin v. Metro. Prop. & Cas. Ins. Co. (In
re Shkolnikov), 470 F.3d 22, 24 (1st Cir. 2006). Rather, Allco
seeks review of what it alleges was an adverse judgment with
respect to the relief granted, and it specifically appeals not
only from the final judgment below, but also from the district
court's order denying further relief.
Allco argues that the district court, in addition to
invalidating the MDPU's regulations, should have itself undertaken
calculating National Grid's avoided cost rate. It highlights that
PURPA authorizes district courts hearing implementation challenges
to "issue such injunctive or other relief as may be appropriate."
16 U.S.C. § 824a-3(h)(2)(B). Arriving at that calculation, Allco
contends, is no different than calculating damages that require
forecasts, something courts regularly do. Were the district court
nonetheless reluctant to do so itself, says Allco, it should have
appointed a special master for the task, or passed the question to
FERC pursuant to primary jurisdiction doctrine.
The district court, in declining to "engage in fact-
finding to determine the proper avoided cost rate," observed that
"[n]othing in the statutory scheme provides this Court with rate-
making authority, and it lacks the expertise to do so." Allco
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Renewable Energy Ltd., 208 F. Supp. 3d at 401 (D. Mass. 2016).
"Rather," it added, "the MDPU has the statutory authority to
revisit its implementation of FERC's rules, either through a new
rulemaking, a case-by-case adjudication, or other reasonable
method." Id. The district court is correct. Because section
210 of PURPA generally contemplates state agencies implementing
FERC's rules for determining avoided cost rates, 16 U.S.C.
§ 824a-3(b), (f), the district court certainly did not abuse its
discretion in leaving that calculation to the MDPU.
Nor does the primary jurisdiction doctrine provide any
indication that the district court abused its discretion. "The
doctrine of primary jurisdiction is a prudential doctrine
developed by the federal courts to promote accurate decisionmaking
and regulatory consistency in areas of agency expertise." Ass'n
of Int'l Auto. Mfrs., Inc. v. Mass. Dep't of Envtl. Prot., 196
F.3d 302, 304 (1st Cir. 1999). Under that doctrine, if a court
determines that an issue falls within the primary jurisdiction of
an agency, the court may refer the issue to that agency and defer
any decision until the agency has come to a conclusion. Id. We
have also remarked that when it would otherwise be appropriate to
stay proceedings and submit a question to an agency, requesting an
amicus brief from that agency may represent a "more efficient and
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expeditious alternative." Distrigas of Mass. Corp. v. Bos. Gas
Co., 693 F.2d 1113, 1119 (1st Cir. 1982).
Here, given that state agencies, not FERC, are
responsible for implementing FERC's rules with respect to
determining specific avoided cost rates, it is far from clear that
this question falls within FERC's "primary jurisdiction" to begin
with. Even setting that aside, it is significant that the district
court solicited an amicus brief from FERC, and that in that amicus
brief, FERC declined to provide a specific contract rate. This
further cements our conclusion that the district court did not
abuse its discretion in limiting itself to invalidating the MDPU
regulations at issue.
IV. CONCLUSION
Allco fails to show that the district court erred in
dismissing its claims against National Grid, because it lacks a
private right against National Grid. So too does Allco fail to
show that the district court abused its discretion in limiting the
relief it granted against the state defendants. Accordingly, we
affirm.
Affirmed.
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