Ark. Pub. Serv. Comm'n v. Fed. Energy Regulatory Comm'n ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2018 Decided June 1, 2018
No. 16-1305
ARKANSAS PUBLIC SERVICE COMMISSION,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ENTERGY SERVICES, INC., ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Dennis Lane argued the cause for petitioner. With him on
the briefs were Glen L. Ortman, John E. McCaffrey, and
Randolph Hightower. Marie Denyse Zosa entered an
appearance.
Gregory W. Camet, Mark Strain, and Marnie A. McCormick
were on the briefs for intervenor Entergy Services, Inc. in
support of petitioner. Megan E. Vetula entered an appearance.
Lona T. Perry, Deputy Solicitor, Federal Energy Regulatory
Commission, argued the cause for respondent. With her on the
brief were David L. Morenoff, General Counsel, and Robert H.
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Solomon, Solicitor. Anand Viswanathan, Attorney, entered an
appearance.
David E. Pomper argued the cause for intervenors
Louisiana Public Service Commission, et al. With him on the
brief were Stephen Charles Pearson, Michael R. Fontham, Noel
J. Darce, Dana Shelton, Justin A. Swaim, Clinton Andrew Vince,
Presley Randolph Reed Jr., Jennifer Anne Morrissey, and Chad
James Reynolds. Paul L. Zimmering entered an appearance.
Before: HENDERSON and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: The Arkansas Public
Service Commission petitions for review of a Federal Energy
Regulatory Commission (“FERC”) final order. Entergy Servs.,
Inc., 154 FERC ¶ 61,173 (Mar. 4, 2016), reh’g denied in part
and granted in part, 156 FERC ¶ 61,112 (Aug. 16, 2016). In the
order under review, FERC held that an operating company
withdrawing from a multi-state energy system must continue to
share the proceeds of a pre-departure settlement with the other
member companies. The Arkansas Public Service Commission
(the “Arkansas Commission”), acting on behalf of Arkansas
energy consumers, contends that FERC’s order to share the
settlement benefits and its method of allocating the benefits of
the settlement was unlawful, arbitrary, capricious, and
unsupported by substantial evidence. Because we conclude that
FERC had a lawful basis to order the sharing of the benefits of
the settlement and was reasoned in its allocation methodology,
we deny the petition for review.
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I. Background
A. Factual History
Beginning in 1951, six companies in Arkansas, Louisiana,
Mississippi, and Texas (collectively, the “Operating
Companies”) entered into an arrangement to share the costs and
benefits of power generation and transmission. To that end, they
formed the Entergy Corporation, a publicly held and traded
utility holding company. The Entergy Corporation is the
corporate parent of intervenor Entergy Services, Inc. (“Entergy
Services”). The Operating Companies memorialized their
arrangement in the Entergy System Agreement (“System
Agreement”), a FERC-approved rate plan that governs the
multi-state system’s generation and transmissions facilities
operated as a single system (the “Entergy System”) and
administered by Entergy Services. Over the years, Entergy
Services supplemented the System Agreement with seven
service schedules, MSS-1 through MSS-7, which updated the
cost-sharing and energy capacity plan. The System Agreement
“has been a feature of many cases before this Court.” Council
of New Orleans v. FERC, 692 F.3d 172, 174 (D.C. Cir. 2012);
see, e.g., Arkansas Pub. Serv. Comm’n v. FERC, 712 F. App’x
3, 4 (D.C. Cir. 2018); Louisiana Pub. Serv. Comm’n v. FERC,
522 F.3d 378, 383 (D.C. Cir. 2008); Louisiana Pub. Serv.
Comm’n v. FERC, 174 F.3d 218, 220 (D.C. Cir. 1999).
The System Agreement provided for the possibility of
withdrawal by an Operating Company and required an eight-
year notice of intent to withdraw by any company preparing to
do so. On December 19, 2005, Operating Company Entergy
Arkansas gave such a notice, announcing its intention to
withdraw on December 18, 2013. Two years later, another
Operating Company, Entergy Mississippi, gave a similar notice.
The current controversy over the effects of the withdrawal
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concerns a settlement entered with coal transporter Union
Pacific in state court litigation before the withdrawal of the two
Operating Companies.
In April 2008, Entergy Arkansas, Entergy Services, and
other parties settled Arkansas state court litigation against Union
Pacific (the “Union Pacific Settlement”). The settlement, as
relevant to the present petition for review, locked in a below-
market rate for the rail delivery of coal by extending an Entergy
Arkansas contract with Union Pacific to the period between July
1, 2012 and June 30, 2015. Entergy Arkansas remained in the
System Agreement until partway through this period.
Under the System Agreement, the Operating Companies
purchase excess energy from other Operating Companies at-
cost. The service schedules set out the price for energy
purchases. That price incorporates the cost of coal
transportation as one component. Entergy Arkansas was still
participating in the System Agreement when Union Pacific
failed to make the coal deliveries in the conduct underlying the
settlement. Therefore, Entergy Arkansas passed a portion of the
increased coal costs to the other Operating Companies under
service schedule MSS-3. Likewise, prior to Entergy Arkansas’s
departure from the System Agreement, Entergy Arkansas also
shared its beneficial coal transportation costs under the Union
Pacific Settlement with the other Operating Companies.
Additionally, some of the Operating Companies had other
mechanisms outside of the System Agreement to realize some
of the benefits of Entergy Arkansas’s reduced coal
transportation costs, such as shared ownership of the two
affected plants and separate power purchasing agreements.
However, the Union Pacific Settlement did not address Entergy
Arkansas’s impending withdrawal from the System Agreement.
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B. Procedural History
On November 19, 2009, FERC accepted Entergy Arkansas
and Entergy Mississippi’s notices of withdrawal from the
Entergy System. Entergy Servs., Inc., 129 FERC ¶ 61,143 (Nov.
19, 2009) (“Withdrawal Order”), reh’g denied, 134 FERC
¶ 61,075 (Feb. 1, 2011) (“Withdrawal Rehearing Order”)
(collectively, “Withdrawal Proceedings”). In the Withdrawal
Proceedings, FERC found that the System Agreement
“contain[ed] no provisions requiring withdrawing Operating
Companies to pay a fee or otherwise compensate other
remaining Operating Companies prior to withdrawing.”
Withdrawal Order P. 60. Accordingly, FERC held that Entergy
Arkansas and Entergy Mississippi should not have to pay any
exit fees to the other Operating Companies upon their departure
from the Entergy System.
Intervenor Louisiana Public Service Commission (the
“Louisiana Commission”), which represents the interests of
Louisiana’s energy consumers, filed exceptions to the
Withdrawal Order, arguing that FERC should allocate the Union
Pacific Settlement benefits as part of the Withdrawal
Proceedings. FERC responded that the Louisiana Commission’s
concerns regarding the allocation of the Union Pacific
Settlement Benefits were “beyond the scope of this proceeding
and are more appropriately raised” in a future proceeding
regarding the structure of the post-withdrawal Entergy System.
Withdrawal Rehearing Order at n.54. FERC went on to
reinforce that it would still review “future operating
arrangements” to ensure they were “just and reasonable” in
accordance with FERC’s statutory obligations under 16 U.S.C.
§ 824d.
On September 14, 2011, still concerned about the
allocation of the Union Pacific Settlement benefits, the
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Louisiana Commission filed a complaint under section 206 of
the Federal Power Act. Louisiana Pub. Serv. Comm’n, 138
FERC ¶ 61,029 (Jan. 19, 2012). Again, FERC reiterated that it
was “premature” to consider the allocation of the Union Pacific
Settlement benefits and opined that the Louisiana Commission’s
concerns would be resolved “in the future proceeding regarding
the structure of the post-withdrawal Entergy system.” Id. at
P. 53. Prior to the start of the Withdrawal Proceedings, the
Louisiana Commission had also raised the allocation of the
Union Pacific Settlement benefits during a 2008 bandwidth
proceeding, but it withdrew the issue without prejudice based on
the expectation it would be resolved in later proceedings.
On August 14, 2012, this Court affirmed the Withdrawal
Proceedings, including FERC’s conclusion that the System
Agreement does not impose an exit fee or continuing obligation
on withdrawing Operating Companies. Council of New Orleans,
692 F.3d at 174-77. We also recognized that FERC “must still
review the post-withdrawal arrangements to ensure that they are
just, reasonable and not unduly discriminatory.” Id. at 177.
In November 2012, under section 205 of the Federal
Power Act, Entergy Services filed its proposal for its post-
withdrawal successor plan. The successor plan included the
necessary revisions to the System Agreement and the formation
of a new integrated utility system (the Midcontinent Independent
System) comprised of the remaining Operating Companies. The
Louisiana Commission again protested the filing. For the fourth
time, the Louisiana Commission raised the issue of the Union
Pacific Settlement benefits. In response, the Arkansas
Commission and Entergy Services challenged FERC’s authority
to order Entergy Arkansas to share the Union Pacific Settlement
benefits because Entergy Arkansas was no longer participating
in the System Agreement. FERC established a hearing to
address these issues. Entergy Servs., Inc., 145 FERC ¶ 61,247
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(Dec. 18, 2013), reh’g denied, 153 FERC ¶ 61,154 (Nov. 9,
2015).
Following settlement discussions and a hearing, the
Administrative Law Judge determined that the Union Pacific
Settlement benefits should be allocated among the Operating
Companies and adopted an allocation methodology. Entergy
Servs., Inc., 149 FERC ¶ 63,022 (Dec. 12, 2014). On review
and rehearing, FERC affirmed the findings of the Administrative
Law Judge and rejected the challenge to its authority. Entergy
Servs., Inc., 154 FERC ¶ 61,173 (Mar. 4, 2016), reh’g denied in
part and granted in part, 156 FERC ¶ 61,112 (Aug. 16, 2016).
FERC ordered Entergy Arkansas to make a compliance filing
that would refund benefits of the Union Pacific Settlement to the
other Operating Companies in accordance with the prescribed
allocation method. Id.
The Arkansas Commission timely filed a petition for
review. The Court granted leave for the Louisiana Commission,
the Mississippi Public Service Commission, and the Council of
the City of New Orleans to intervene on behalf of FERC and for
Entergy Services to intervene on behalf of the Arkansas
Commission.
II. Analysis
We review FERC’s final orders under the Administrative
Procedure Act. We will vacate FERC decisions that are
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). Further, we will
uphold FERC’s factual findings if they are supported by
substantial evidence. 16 U.S.C. § 825l(b); Town of Norwood v.
FERC, 80 F.3d 526, 529 (D.C. Cir. 1996).
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Under the Federal Power Act, FERC is required to
ensure that electric rates are “just and reasonable.” 16 U.S.C.
§ 824d. We afford “great deference” to FERC’s decisions on
this subject because “[t]he statutory requirement that rates be
‘just and reasonable’ is obviously incapable of precise judicial
definition.” Morgan Stanley Capital Grp. Inc. v. Pub. Util. Dist.
No. 1 of Snohomish Cty., 554 U.S. 527, 532 (2008); see Maine
v. FERC, 854 F.3d 9, 22 (D.C. Cir. 2017). We do not ask
whether FERC’s “decision is the best one possible or even
whether it is better than the alternatives.” FERC v. Elec. Power
Supply Ass’n, 136 S. Ct. 760, 782 (2016), as revised (Jan. 28,
2016). Our review in ratemaking cases is therefore “‘limited to
ensuring that the Commission has made a principled and
reasoned decision supported by the evidentiary record.’”
Southern Cal. Edison Co. v. FERC, 717 F.3d 177, 181 (D.C. Cir.
2013) (quoting Complex Consol. Edison Co. of N.Y., Inc. v.
FERC, 165 F.3d 992, 1000-01 (D.C. Cir. 1999)).
The Arkansas Commission argues that FERC acted
unlawfully, arbitrarily, and capriciously by ordering Entergy
Arkansas to share the Union Pacific Settlement benefits with the
Operating Companies and by the method that it adopted to
allocate the settlement benefits. We will consider FERC’s order
for Entergy Arkansas to share the Union Pacific Settlement
benefits before reviewing the allocation method.
A. Order to Share the Union Pacific Settlement
Benefits
The Arkansas Commission petitions for review of
FERC’s order for Entergy Arkansas to share the Union Pacific
Settlement benefits after its withdrawal from the Entergy System
by arguing that the order is an unlawful exit fee and that it
violated the filed rate doctrine. We will address each argument
in turn.
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Is sharing the settlement benefits an exit fee?
The Arkansas Commission argues that FERC’s order
essentially amounts to the imposition of an unlawful exit fee or
post-withdrawal continuing obligation contrary to the
Withdrawal Proceedings. It is undisputed that the Withdrawal
Proceedings confirmed that Entergy Arkansas has no obligation
to pay an exit fee and it has no continuing obligation to the
remaining member companies of the Entergy Corporation as a
result of its withdrawal from the System Agreement. This Court
affirmed that conclusion. Council of New Orleans, 692 F.3d at
174-77. However, that is not the question before us. A
determination that a withdrawing company cannot be compelled
to pay an exit fee is separate from the question of whether a
sharing of a settlement of pre-split recovery constitutes such a
forbidden exit fee. It doesn’t. By any logic, an exit fee must
have been generated because of the exit. Had Entergy Arkansas
remained in the cooperative group, there is little, if any, question
that the settlement would have been shared among it and the
other companies.
The Withdrawal Proceedings did not settle this issue as
the Arkansas Commission maintains. In the Withdrawal
Proceedings, FERC put Entergy Arkansas on notice that
allocating the Union Pacific Settlement was “beyond the scope
of this proceeding and more appropriately raised in a future
proceeding regarding the structure of the post-withdrawal
Entergy system.” Withdrawal Rehearing Order n.54. Further,
we expressly limited our decision affirming the Withdrawal
Proceedings to FERC’s conclusions regarding “the obligation of
withdrawing Companies under the [System] Agreement.”
Council of New Orleans, 692 F.3d at 174-77. We acknowledged
that FERC would still be reviewing “post-withdrawal
arrangements” to ensure that they are just and reasonable.
10
Given this history, we must consider whether FERC
allocated the Union Pacific Settlement benefits based on its
obligation to ensure just and reasonable rates in the post-
withdrawal successor arrangements or as an “exit fee” from the
System Agreement.
All the Operating Companies were injured by Union
Pacific’s breach of contract. FERC relied on undisputed
evidence that the settlement was entered into for the benefits of
the entire Entergy System. The Operating Companies’ claims
to the settlement benefits arose from the nature of the collective
harm from Union Pacific’s contract breach. Prior to Entergy
Arkansas’s withdrawal from the Entergy System, the Operating
Companies received the benefits they were due by way of the
System Agreement’s cost-sharing mechanisms. FERC properly
reasoned that the Operating Companies’ claims to the Union
Pacific Settlement benefits did not arise from the System
Agreement just because the settlement sharing was effectuated
by the System Agreement.
Further, the Arkansas Commission’s argument that the
allocation method is evidence that FERC’s order is an exit fee
is similarly unconvincing. It is true that FERC’s allocation
method was based on a calculation that assumed that Entergy
Arkansas remained part of the System Agreement. The use of
that method does not require us to draw the conclusion that the
obligation to share the benefits arises from the System
Agreement. Rather, FERC reached a reasoned conclusion that
using the System Agreement as a model would ensure the
benefits would continue to flow in a “just and reasonable”
manner.
FERC defines an exit fee as one “imposed upon a party
because of its exit from [the System Agreement] . . . as
compensation for or a penalty for its departure.” This is not a
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case of FERC ordering Entergy Arkansas to compensate the
other Operating Companies as a penalty for its departure.
Entergy Services’ original proposed successor arrangement
would have deprived the Operating Companies of the
compensation they were due for their injuries, while Entergy
Arkansas would receive benefits greater than its injury. FERC
found that this would be an unjust and unreasonable cost
allocation.
Because FERC was reasoned in concluding that sharing
the Union Pacific Settlement benefits was necessary under the
principles of equity, and was not a penalty or recompense for the
Company’s exit from the system, we reject the Arkansas
Commission’s argument that FERC’s order creates an unlawful
exit fee.
Did FERC violate the filed rate doctrine?
We next turn to the Arkansas Commission’s assertion that
FERC violated the filed rate doctrine by ordering Entergy
Arkansas to share the Union Pacific Settlement benefits. Under
that doctrine, public utilities may only charge rates filed with
FERC. Arkansas La. Gas Co. v. Hall, 453 U.S. 571, 578 (1981).
This assures that customers receive adequate notice of their
utility costs. Transmission Access Policy Study Grp. v. FERC,
225 F.3d 667, 709 (D.C. Cir. 2000) (per curiam), aff’d sub nom.
New York v. FERC, 535 U.S. 1 (2002). The Arkansas
Commission argues that FERC’s order increases the cost to
Arkansas consumers without notice, creating a new public utility
rate contrary to the filed rate doctrine. We disagree.
The filed rate doctrine has never been construed as
requiring FERC to close its eyes to changes in circumstances
that render a rate that was once just and reasonable but no longer
comports with the new reality. FERC has “broad authority to
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fashion equitable remedies in a variety of settings.” Columbia
Gas Transmission Corp. v. FERC, 750 F.2d 105, 109 (D.C. Cir.
1984).
In this case, FERC reasons that it is not overriding a filed
rate but merely effectuating the purpose of a non-jurisdictional
contract, the Union Pacific Settlement. Entergy Services was a
party to the Union Pacific Settlement, and FERC found it
entered into the settlement on behalf of all the Operating
Companies while they were under FERC’s jurisdiction through
the System Agreement, a filed rate. Even though FERC, in at
least one case, has relied on an existing filed rate provision in
deciding not to impose post-withdrawal obligations on a party,
that is not sufficient to limit FERC’s authority in this case.
Midwest Indep. Transmission Sys. Operator, Inc., 124 FERC
¶ 61,219 at P. 173 (Sept. 3, 2008). In that decision, FERC noted
that it was reserving its authority to impose equitable relief “in
the future” in different circumstances, and it is not reasonable to
extend this one-time decision to bar equitable relief in all post-
withdrawal successor arrangements. Id. We agree, FERC has
the authority to fashion a remedial rate.
Next, the Arkansas Commission points out that when the
Union Pacific Settlement was negotiated and executed, all the
parties knew that Entergy Arkansas would be exiting the System
Agreement and yet the Union Pacific Settlement does not
contain any terms about post-withdrawal obligations. Further,
the Arkansas Commission argues that FERC cannot have
authority over the Union Pacific Settlement unless it was
actually filed as a rate or other amendment to the System
Agreement. Therefore, the Arkansas Commission urges, FERC
erred by inferring that the parties intended the settlement to be
shared after Entergy Arkansas’s withdrawal.
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However, FERC considered evidence that the whole
Entergy System was harmed by Union Pacific’s breach.
Accordingly, FERC inferred that the benefits of the settlement
were meant to be shared by the entire system. In other contexts,
FERC has exercised its authority to interpret an unfiled contract,
even when that interpretation has implications on a filed rate, as
part of ensuring a just and reasonable rate. See e.g., Public
Utils. Comm’n of State of Cal. v. FERC, 254 F.3d 250, 255
(D.C. Cir. 2001); City of Osceola v. Entergy Ark., Inc., 791 F.3d
904, 908 (8th Cir. 2015) (citing Portland Gen. Elec. Co., 72
FERC ¶ 61,009, 61,021 n.14 (1995)). FERC’s authority extends
to remedial jurisdiction over cost allocation even when it is not
a filed rate, in order to prevent an unjust and unreasonable rate.
See Louisiana Pub. Serv. Comm’n, 522 F.3d at 390. Given the
absence of any evidence that the parties did not intend that the
Union Pacific Settlement benefits would continue to be shared
between the Operating Companies, FERC was not arbitrary and
capricious by making a decision recognizing the change in
circumstances.
Persuasively, even here, the Arkansas Commission and
Entergy Services are not protesting FERC’s decision to order the
Operating Companies to continue to share the cost of the
Ouachita Plant transmission network upgrade as part of the
successor arrangements. Though the Arkansas Commission and
Entergy Services attempt to distinguish the post-withdrawal
requirement to share the cost of the Ouachita upgrade from the
Union Pacific Settlement benefits, both arose during Entergy
Arkansas’s operation as a member of the System Agreement. It
is true that System Agreement does not directly address the
Union Pacific Settlement benefits, nor the Ouachita Plant
upgrade cost sharing, post-withdrawal. But, FERC’s authority
regarding the Union Pacific Settlement stems from its authority
over the filed rate in force at the time the Operating Companies
were injured and the Union Pacific Settlement was executed.
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FERC has the obligation to review the successor
arrangements following the withdrawal of an Operating
Company under Federal Power Act because the conditions of the
withdrawal can impact other market participants. See Maine
Pub. Utilities Comm’n v. FERC, 454 F.3d 278, 285-87 (D.C.
Cir. 2006). In this case, FERC ordered the sharing of the Union
Pacific Settlement benefits precisely because failing to do so
would be unjust and unreasonable to the other market
participants who were injured by Union Pacific’s breach.
FERC’s decision to enter a remedial order to prevent an unjust
and unreasonable rate is not the same as overriding a filed rate.
Therefore, because FERC did not impose an exit fee or
override a filed rate, but effectuated a just and reasonable cost-
benefits allocation, we deny the Arkansas Commission’s petition
to review FERC’s order that Arkansas Entergy must share the
Union Pacific Settlement benefits.
B. Allocation Method
The Arkansas Commission next petitions for review of
FERC’s method of allocation of the Union Pacific Settlement
benefits. We will review the method FERC adopted to allocate
the settlement benefits and the Arkansas Commission’s
proposed alternative before turning to FERC’s reasoning.
FERC considered expert testimony regarding three
valuation analyses prepared by an Entergy Services witness,
Thomas D. Crowley. In 2008, Crowley performed an initial
study to estimate the value of the Union Pacific Settlement as
part of Entergy Arkansas’s prudence review to make sure the
terms of the settlement fairly compensated it for its damages. In
2010, Crowley updated the study with more current information
(the “2010 Crowley Study”).
15
The 2010 Crowley Study quantified the hypothetical coal
transportation costs if Entergy Arkansas did not enter into the
Union Pacific Settlement. Without the settlement, Entergy
Arkansas’s coal transportation contract would have expired in
June 2011. The study assumed that Entergy Arkansas would
have procured replacement transportation through its usual
business practice of entering multi-year transportation contracts.
Crowley used the rate another railroad offered Entergy Arkansas
for coal transportation in November 2009 as the proxy for the
contract rate that Entergy Arkansas would have likely paid had
it entered into a replacement contract in 2011. The difference
between that hypothetical transportation contract and the more
advantageous contract afforded by the Union Pacific Settlement
was used to define the benefits of the settlement. FERC adopted
the results of the 2010 Crowley Study in order to quantify the
benefits of the Union Pacific Settlement.
In the alternative, the Arkansas Commission advances a
2014 study also performed by Crowley (the “2014 Crowley
Study”) as a better estimate of the benefits of the bargain. As it
turns out, coal transportation prices were lower in 2012 than the
2010 Crowley Study predicted. Therefore, the 2014 Crowley
Study incorporates that price difference in its result, reducing the
valuation of the Union Pacific Settlement benefits compared to
the 2010 Crowley Study’s prediction.
FERC reasoned that the 2014 Crowley Study was not a
good estimate of the benefits of the bargain. Specifically, the
2014 Crowley Study assumes that Entergy Arkansas knew that
the transportation prices would drop in 2012. To perform the
valuation, Crowley combined a hypothetical transportation
contract for 2011-2012 and a follow-on contract from 2012-
2015, which would take advantage of the reduced rates available
in 2012. FERC dismissed this study as suffering from
“hindsight bias” that does not reflect the reality of what Entergy
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Arkansas would have paid for coal transportation in the absence
of the settlement. Without the Union Pacific Settlement, FERC
found it likely that Entergy Arkansas would have entered into a
multi-year transportation contract in 2011 and not benefited
from the price dip in 2012. To reach its findings, FERC
considered evidence of actual contracting practices and the
testimony of an economics expert. Further, there was no
evidence that Entergy Arkansas could have anticipated the 2012
drop in coal transportation prices and made different contracting
decisions.
FERC’s adoption of the 2010 Crowley Study to allocate the
Union Pacific Settlement benefits was the product of a reasoned
decision and based on substantial evidence. Therefore, we
affirm FERC’s use of this allocation method.
III. Conclusion
For the reasons set forth above, we hold that FERC’s order
for Entergy Arkansas to share the Union Pacific Settlement
benefits and its method for allocating the settlement was not
arbitrary, capricious, or contrary to law. Accordingly, the
Arkansas Commission’s petition for review is denied.