Pioneer Trail Wind Farm, LLC v. Federal Energy Regulatory Commission

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-2326, 14-3023
PIONEER TRAIL WIND FARM, LLC, et al.,
Petitioners,
AMERICAN WIND ENERGY ASSOCIATION, et al.,
Intervening Petitioners,
v.
FEDERAL ENERGY REGULATORY COMMISSION,
Respondent,
MIDCONTINENT INDEPENDENT SYSTEM OPERATOR, INC., et al.,
Intervening Respondents.
____________________
Petitions for Review of Orders of the
Federal Energy Regulatory Commission
Nos. ER11-3326-001, ER11-3326-002, ER11-3327-001,
ER11-3327-002, ER11-3330-001, and ER11-3330-002
____________________
ARGUED APRIL 20, 2015 — DECIDED AUGUST 19, 2015
____________________
2 Nos. 13-2326, 14-3023
Before WOOD, Chief Judge, HAMILTON, Circuit Judge, and
DARRAH, District Judge.*
WOOD, Chief Judge. Before deciding to build a power
plant, energy companies and the system operator of an elec-
trical grid must calculate the anticipated cost of connecting
the proposed plant to the grid. These determinations occur
in a highly regulated environment. Not surprisingly, some-
times the calculations need to be corrected. This case deals
with who should bear the costs of additional upgrades to the
grid when the initial studies of the costs of connection con-
tained an error. Two wind-farm companies argue that the
Federal Energy Regulatory Commission (FERC or the Com-
mission) issued unreasoned orders when it assigned the cor-
rected costs of connection to the wind farms that wanted to
connect to the grid rather than to the grid’s system operator,
which was the party that made the mistake. Our task is to
decide whether the Commission’s decisions to impose the
costs on the connecting parties and to require a certain
methodology were arbitrary and capricious under Section
706(2)(A) of the Administrative Procedure Act, 5 U.S.C.
§ 706(2)(A). We conclude that the Commission’s decisions
pass muster, and thus we deny the petitions for review.
I
Pioneer Trail Wind Farm, LLC (Pioneer), owns and oper-
ates a 150-megawatt wind-powered electric generation facili-
ty in Illinois. Settlers Trail Wind Farm, LLC (Settlers), owns a
similarly sized facility, also in Illinois. Both Pioneer and Set-
tlers are owned by companies that are in turn owned by a
*Hon. John W. Darrah of the Northern District of Illinois, sitting by
designation.
Nos. 13-2326, 14-3023 3
German company called E.ON SE. (The “SE” stands for “so-
cietas europaea,” which is the term given to companies that
register under the European Union’s European Company
Statute rather than under national law. See EUROPEAN
COMM’N, The European Company – Your Business Opportunity?,
http://ec.europa.eu/internal_market/company/societas-
europaea/index_en.htm, (all websites last visted Aug. 12,
2015).) According to E.ON’s website, its power companies
serve 33 million customers worldwide. See E.ON, Who We
Are. An Overview., http://www.eon.com/en/about-us/profile.
html. We often refer to Pioneer and Settlers collectively as
the Generators in this opinion.
Midcontinent Independent System Operator, Inc. (MISO),
was formed in 1998 by several independent transmission-
owning utilities. Since its creation, MISO has linked up the
transmission lines of the member utilities into a single inter-
connected grid that stretches across 11 states. The Generators
wish to be connected to the transmission system of Ameren
Illinois Company (Ameren), which is run by MISO. Ameren
oversees 4,500 miles of electric transmission lines and ap-
proximately 45,400 miles of distribution lines in downstate
Illinois; it serves roughly 1.2 million customers in Illinois.
In order to put the questions before us in context, some
background on the interconnection process is essential. In
layman’s terms, we are talking about the regulatory hoops
that a power plant must jump through in order to hook up to
a grid. The Federal Power Act grants FERC jurisdiction to
oversee “matters relating to generation … and … the trans-
mission of electric energy in interstate commerce and the
sale of such energy at wholesale in interstate commerce” be-
cause Congress has found such oversight to be “necessary in
4 Nos. 13-2326, 14-3023
the public interest.” 16 U.S.C. § 824(a). In 2003, FERC stand-
ardized the generation interconnection process, to which we
reluctantly refer as the GIP, following the industry jargon.
Under the GIP, the interconnection customers, such as Pio-
neer and Settlers, submit requests to the grid operator—in
this case, MISO. MISO then produces studies to assess the
impact of the projects on the grid. These studies identify
what additional upgrades are needed to ensure that those
additional connections do not adversely affect the grid.
These studies also inform interconnection customers what
the cost of the upgrades will be. This step is supposed to en-
able the customers to decide if, in fact, they want to be con-
nected to the grid or perhaps even build the plants at all. The
interconnection customers cover the cost of MISO’s studies.
Each case involves three separate studies. First, the grid
operator prepares and sends to the interconnection custom-
ers the “base case,” which gives them an overview of the
system conditions. Second, the grid operator prepares a
“system impact study,” which includes a preliminary list
(with non-binding cost estimates) of network upgrades re-
quired by the proposed project. At this point, the customers
may choose whether to proceed. If they go forward, MISO
performs the third study, called an “interconnection facilities
study.” This sets out the nature and cost of the necessary
network upgrades, as well as any information about pending
upgrades that are entered into MISO’s interconnection
queue. If another project is entered before the customer’s
project, then the second customer could end up bearing the
costs of the earlier project. That is because projects higher in
the queue are included in the baseline against which the
lower-queued project is assessed.
Nos. 13-2326, 14-3023 5
If the interconnection customer chooses to proceed in
light of these studies, the grid operator provides the custom-
er and the interconnecting transmission system owner with a
Generator Interconnection Agreement (Agreement), which
the parties must execute. The Agreement contains the specif-
ic upgrades and estimated costs identified in the studies.
Once the parties execute the Agreement, it is effective under
Section 205 of the Federal Power Act. See 16 U.S.C. § 824d.
With that background, we detail the specific process that
took place here between the interconnection customers—the
Generators—and the grid’s system operator, MISO. In Feb-
ruary 2009, MISO and Ameren entered a “study services
agreement” in which Ameren agreed to perform the studies
of the impact of the Generators’ interconnection requests.
Pioneer and Settlers signed their Agreements on February 5,
2010, with projects scheduled to begin in June and Septem-
ber of 2011. The Settlers Agreement included roughly $6 mil-
lion in network upgrades, while Pioneer’s Agreement re-
quired no network upgrades.
Everything was apparently proceeding smoothly until
April 29, 2010, when MISO notified the Generators that the
studies included a “significant error” that failed to include
upgrades to a higher-queued project in the vicinity of the
two companies’ proposed wind farms. The inadvertently
omitted project was a 30-megawatt upgrade to another wind
farm in Benton County. MISO told the Generators that some-
thing had to give: they would either have to agree to fewer
megawatts (120 megawatts each) or pay for additional net-
work upgrades estimated to cost $11.5 million. On May 11,
2010, the Generators informed MISO that they rejected both
options: the additional network upgrades, they asserted,
6 Nos. 13-2326, 14-3023
were not their responsibility, and so they claimed they were
entitled to proceed with their 150-megawatt wind farms.
MISO did not acquiesce in their position. Instead, in No-
vember 2010, it informed both companies that they would
need to pay for $10 million in additional network upgrades
and $1.5 million in common use upgrades before they could
interconnect. MISO presented superseding Agreements to
both Pioneer and Settlers. The revised Agreements required
the companies to pay for both the original and the additional
network upgrades; they also provided for a Multi-Party Fa-
cilities Construction Agreement to address the common use
upgrades. The two companies refused to sign. They asked
MISO instead to file the superseding Agreements with
FERC, so that it could resolve the dispute about who had to
pay for the upgrades. MISO did so on April 8, 2011, and
April 11, 2011. Before the Commission, the Generators pro-
tested that they should not be responsible for the cost of the
additional network upgrades, and Ameren filed an answer,
claiming it was not the source of the study error. The Com-
mission found that the Generators should pay for the addi-
tional network upgrades and denied the companies’ requests
for rehearing.
The Generators also contest another aspect of FERC’s de-
cision. The original Agreements (the ones that failed to ac-
count for the higher-queued wind farm) included a pricing
scheme (Option 1), under which the Generators were to fund
the cost of the network upgrades before construction, MISO
would refund 100% of the upgrade costs after construction,
and the Generators would then pay for the upgrades month-
ly through a “network upgrade charge.” In the course of a
different FERC proceeding, however, the Commission
Nos. 13-2326, 14-3023 7
granted MISO’s request to do away with Option 1 pricing
and replace it with Option 2. Under Option 2 pricing, the
customer pays for only the unreimbursable cost of the up-
grades before construction, and the transmission owner re-
tains the funds. Despite doing away with Option 1 for future
Agreements, the Commission grandfathered Option 1 pric-
ing for the original network upgrades and applied Option 2
pricing only to the upgrades added in light of MISO’s error.
Pioneer and Settlers filed petitions seeking review of the
Commission’s decisions to impose the costs of the additional
upgrades on them and to apply Option 1 pricing to the orig-
inal upgrades (they would prefer Option 2 pricing across the
board, for reasons we need not explore). We granted mo-
tions to intervene as petitioners from the American Wind
Energy Association (AWEA), a national trade association
that represents wind power project developers and other
companies involved in the wind power industry, and Wind
on the Wires (WOW), a non-profit that collaborates with
AWEA on wind farm work in the Midwest. Ameren and
MISO have intervened as respondents.
II
The Generators are seeking review of FERC’s decisions
under Section 313(b) of the Federal Power Act, 16 U.S.C.
§ 824l(b). That statute provides that the Commission’s find-
ings of fact “if supported by substantial evidence, shall be
conclusive.” It does not otherwise specify the standard of
review, and so the applicable standard is found in Section
706(2)(A) of the Administrative Procedure Act (APA),
5 U.S.C. § 706(2)(A), which instructs a reviewing court to
uphold an agency action unless it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
8 Nos. 13-2326, 14-3023
law.” While deferential, these standards are not toothless.
We must inquire whether FERC “examined the relevant data
and articulated a rational connection between the facts
found and the choice made.” Eastern Ky. Power Co-op, Inc. v.
FERC, 489 F.3d 1299, 1306 (D.C. Cir. 2007) (citing Motor Vehi-
cle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)). The petitioners have the burden of showing “that the
Commission’s choices are unreasonable and … not within a
‘zone of reasonableness.’” ExxonMobil Gas Mktg. Co. v. FERC,
297 F.3d 1071, 1084 (D.C. Cir. 2002) (citation omitted).
A
We begin with the Generators’ primary challenge, which
is to the Commission’s decision to allocate to them the cost
of system upgrades that are necessary to accommodate their
new 150-megawatt facilities. In so doing, FERC was follow-
ing FERC Order No. 2003, in which it takes the position that
when an interconnection customer (typically a generator
such as Pioneer or Settlers) is the “but-for cause” of network
upgrades, it is appropriate to have that customer assume the
costs of the necessary upgrades. Consistently with that poli-
cy, the order allows regional system operators to implement
participant funding, under which the costs of network up-
grades fall on the interconnecting customer. MISO did this
in 2006.
Not surprisingly, modifications to the grid are often
made to accommodate the change in power transmission
brought about by new plants. “To the extent that a utility
benefits from the costs of new facilities, it may be said to
have ‘caused’ a part of those costs to be incurred, as without
the expectation of its contributions the facilities might not
have been built, or might have been delayed.” Ill. Commerce
Nos. 13-2326, 14-3023 9
Comm’n v. FERC, 576 F.3d 470, 476 (7th Cir. 2009). While the
Commission is “not authorized to approve a pricing scheme
that requires a group of utilities to pay for facilities from
which its members derive no benefits,” id., here the Genera-
tors are the primary utilities that stand to benefit from being
connected to the grid. See Old Dominion Elec. Co-op., Inc. v.
FERC, 518 F.3d 43, 51 (D.C. Cir. 2008) (upholding FERC’s cost
allocations of interconnection facilities to the interconnection
customers “when facilities would not have been built but for
the interconnection request”). The parties acknowledge that
the additional upgrades, first neglected and later noticed by
MISO, are required.
In administering the regulatory process of updating an
electrical grid, FERC needs a way to handle inevitable mis-
takes of fact. The question is how to think about this prob-
lem. The Generators argue that the legal framework within
which we should answer the question is that of contract:
they each had one Agreement; it was premised on a mistake
of fact; and now a new Agreement is needed. FERC rejects
the contract model and contends that the proper model is
regulatory. We think that FERC has the better of this debate.
It is true that the Generator Interconnection Agreements run
between the interconnection customer (a generator), a
transmission owner, and a transmission provider (MISO),
but that is not the end of the matter. The parties are not free
to contract as they wish; instead, they must structure their
relationship within the elaborate regulatory regime that
FERC has created. This case illustrates the point well: Pio-
neer and Settlers refused to sign the revised Agreements.
They asked MISO instead to refer the matter to FERC, which
MISO did. After proceedings in which everyone was heard,
FERC decided that the cost should fall on the Generators.
10 Nos. 13-2326, 14-3023
This was a regulatory decision. Indeed, every step leading to
an Agreement is dictated by regulations: MISO must connect
new power plants to the grid in accordance with the Federal
Power Act and its implementing regulations; it must conduct
(or contract for) the three types of studies described above;
and it must accept the interconnection terms FERC dictates,
when FERC has to become involved.
Even if we were to focus on the contract-like aspects of
the relationship, the Generators have problems. The record
fails to show that they relied on the original, mistaken stud-
ies. There is no evidence that the added cost of the corrected
upgrades was a dealbreaker for either Pioneer or Settlers’s
project. MISO gave them the opportunity to avoid the extra
cost for the additional upgrades and instead reduce the out-
put (to 120 megawatts) of the wind farms so as to not over-
load the system. They did not show why this would have
made their farms economically unsustainable. They also had
an exit option. The results of the system impact and inter-
connection facilities studies are designed to give companies
the opportunity to withdraw from a proposal; the Genera-
tors could have opted to do so once they learned of the addi-
tional upgrades that were necessary to avoid overloading the
existing electrical grid. Finally, they always understood (or
should have understood) that upgrades required by another
project in the queue could cause exactly the kind of problem
that occurred here. (We note that the Generators apparently
went ahead and built their wind farms despite this dispute.
That fact has no effect on our analysis.)
We do not deny that the amount of money at issue, $11.5
million, is significant. It is also possible, in another case, that
a more developed record might demand a different ap-
Nos. 13-2326, 14-3023 11
proach. For instance, had there been evidence in the record
about the cost of a proposed wind farm, the Commission ini-
tially, and now our court, would have had a better sense of
how much the additional upgrades drove up the cost of con-
struction. Our case is devoid of such evidence, and so we
lack a benchmark against which to measure the cost of the
mistake. If the record before FERC had demonstrated that
the difference in the interconnection costs turned a profitable
enterprise into a losing one for both companies, it is possible
that FERC would have entered a different order. If it had en-
tered the same order, there might have been a stronger ar-
gument for the proposition that the order was arbitrary. This
is all speculation, however. We see nothing in evidence sug-
gesting that the facts FERC found are not supported by sub-
stantial evidence, nor do we see the kind of legal error that
requires us to set aside its order.
We find further support for this conclusion in another
point the Commission makes. It observes that there is noth-
ing in the regulations that suggests it cannot modify agree-
ments even if one party does not consent and the parties had
not contemplated who would bear the cost of an error in the
studies. That puts the Generators in a difficult spot, because
they cannot point to something in the Agreements or FERC
precedent that suggests they cannot be held liable for those
costs. Article 11.3.1 of the Agreement lists aspects of the sys-
tem configuration for which the system operator (MISO) is
entitled to change the tariff without FERC’s approval. Article
30.11, “the reservation of rights” section of the Agreement,
allows MISO or Ameren “to make a unilateral filing with
FERC to modify this [Agreement] with respect to any rates,
terms, and conditions, classifications of service, rule or regu-
lation under Section 205 of the Federal Power Act”; it also
12 Nos. 13-2326, 14-3023
allows Pioneer and Settlers “to make a unilateral filing with
FERC to modify this [Agreement] pursuant to Section 206 or
any other applicable provision of the Federal Power Act and
FERC’s rules and regulations thereunder.” The phrase “a
unilateral filing with FERC” appears to be a clumsy way of
saying that MISO or Ameren can go back to FERC and seek
the agency’s modification of the Agreement. If they do so,
the end result is still a regulatory order, not an arms-length
agreement.
Finally, the Generators contend that FERC’s decision to
impose the costs of the mistake on them violates the filed
rate doctrine. The filed rate doctrine, as the name suggests,
requires utilities to charge the rate that is on file with the rel-
evant regulatory agency. See Arkansas Louisiana Gas Co. v.
Hall, 453 U.S. 571, 577 (1981) (defining the doctrine as one
that “forbids a regulated entity to charge rates for its services
other than those properly filed with the appropriate federal
regulatory authority”). In order to evaluate the Generators’
argument, it is helpful to recall why the doctrine exists: “[to]
preserv[e] the agency’s primary jurisdiction over reasona-
bleness of rates,” “to insure that regulated companies charge
only those rates of which the agency has been made cogni-
zant,” and to “prevent[] the Commission itself from impos-
ing a rate increase for [electricity] already sold.” Id. at 577–
78. The filed rate doctrine is intended to bind both the par-
ties and the agency (here, FERC) to the rate on file.
Nothing that happened in this case imperiled FERC’s
primary jurisdiction, hid information from FERC, or im-
posed a retroactive fee on electricity already sold. Instead,
what happened was an ex ante decision about cost allocation,
untainted by fraud or discrimination. In a different line of
Nos. 13-2326, 14-3023 13
cases involving preemption of state regulation, the Supreme
Court repeatedly has protected FERC’s discretion to modify
cost allocations in this way. See, e.g., Entergy Louisiana, Inc. v.
Louisiana Pub. Serv. Comm’n, 539 U.S. 39, 50 (2003) (“We see
no reason to create an exception to the filed rate doctrine for
tariffs of this type that would substantially limit FERC’s flex-
ibility in approving cost allocation arrangements.”); Missis-
sippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S.
354, 372 (1988). In fact, “[i]gnorance or misquotation of rates
is not an excuse for paying or charging either less or more
than the rate filed.” Louisville & Nashville R.R. Co. v. Maxwell,
237 U.S. 94, 97 (1915). The filed rate doctrine protects parties
not from misquoted rates, but from discriminatory or fraud-
ulent ones. It is of no help to the Generators here.
The Generators also complain that to allow FERC to allo-
cate the costs as it has would create a bad precedent. The
Commission responds, without data to back it up, that its
decision was highly fact-specific and that, in any event, these
cases are rare. That is unsatisfying, particularly if we accept
for the sake of argument intervenor AWEA’s contention that
such a decision makes investments less predictable. From
our perspective, however, cases must be decided on the basis
of their record. We do not know what FERC would have
done if a utility had sunk significant money based on rea-
sonable expectations about the costs of a regulated project
and then was told that it had to bear additional, unforeseen
costs. Much less do we know how we would evaluate an
agency decision that was adverse to the utility in such a case.
Federal courts do not decide hypothetical cases for a good
reason; we leave these questions for another day, when they
are properly before us.
14 Nos. 13-2326, 14-3023
To sum up, the interconnection process at issue here in-
cludes three studies that give the affected parties multiple
opportunities to choose to pursue or to abandon an inter-
connection agreement. There was an error in the original cal-
culation of the costs that the new capacity proposed by the
Generators would entail, and at the Generators’ request,
FERC resolved the question who should bear those addi-
tional costs. The Generators had the option of connecting to
the grid at the 120-megawatt level, paying, or walking away.
They did not like those options, but FERC’s conclusion was
based on substantial evidence and was not arbitrary.
“[W]hen entities before FERC present intensely practical dif-
ficulties that demand a solution, FERC must be given the lat-
itude to balance the competing considerations and decide on
the best resolution.” NRG Power Mktg., LLC v. FERC, 718 F.3d
947, 955–56 (D.C. Cir. 2013) (quotations and citation omit-
ted).
B
We now turn to the Generators’ second challenge to the
Commission’s orders. This one relates to FERC’s decision to
apply Option 1 pricing for reimbursing the system operator
the cost of the original network upgrades and Option 2 pric-
ing for the additional upgrades that were deemed necessary
after the mistake was discovered. They argue that Option 2
pricing should apply to the entire package. Recall that under
Option 1 pricing, the interconnection customer funds the en-
tire cost of the network upgrades before construction, the
transmission owner then refunds 100% of the upgrade costs
after construction, and the customer then pays for the up-
grades monthly, through a “network upgrade charge.” Un-
der Option 2 pricing, the customer pays for the unreimburs-
Nos. 13-2326, 14-3023 15
able costs of the upgrades before construction, and the
transmission owner retains the funds.
It is not hard to imagine why the Generators prefer Op-
tion 2. Under Option 1, the transmission owner (MISO) re-
pays the full amount of the cost of the network upgrades to
the interconnection customer, but the customer (i.e., Pioneer
and Settlers) must then charge a monthly amount to recover
the costs of the upgrades. Under Option 2, Pioneer and Set-
tlers pay the nonrefundable amount for the interconnection
and then do not have to pay monthly charges to MISO. Once
again, the standard of review is deferential. As the D.C. Cir-
cuit put it, “we defer to FERC’s decisions in remedial mat-
ters, respecting that the difficult problem of balancing com-
peting equities and interests has been given by Congress to
the Commission with full knowledge that this judgment re-
quires a great deal of discretion.” Koch Gateway Pipeline Co. v.
FERC, 136 F.3d 810, 816 (D.C. Cir. 1998) (quotations and cita-
tion omitted).
The Generators contend that the Commission’s finding
that Option 1 may be used on the original network upgrades
is contrary to its prior decisions. They rely heavily on West
Deptford Energy, LLC v. FERC, 766 F.3d 10 (D.C. Cir. 2014), in
which the D.C. Circuit granted an energy company’s petition
for review and vacated FERC’s order on the ground that the
Commission needed to provide a better explanation for why
certain tariff rates governed that company’s interconnection
request. In our view, however, West Deptford strengthens the
Commission’s position here. The Commission did not apply
Option 1 pricing to the additional upgrades required to con-
nect Pioneer and Settlers’s windfarms. It chose to stay the
course for the original upgrades, preserving the same pric-
16 Nos. 13-2326, 14-3023
ing scheme that it originally had approved. It provided rea-
sons for its decision to do so, explaining that grandfathering
the existing pricing scheme provided regulatory certainty
and was easier to administer. The Commission also dis-
cussed how its decision serves the Federal Power Act’s pur-
pose of preserving the expectations of parties.
The Generators object that the Commission is being in-
consistent, insofar as it rejects a reliance argument for pur-
poses of cost allocation for the mistake and it embraces a re-
liance argument for this purpose. But we have explained
why the reliance argument is at best weak for purposes of
cost allocation. And it is hard to complain on the basis of re-
liance that the Commission did not change the pricing
scheme for the original parts of the Agreement. We have no
reason to think that the Commission misinterpreted its own
orders when it decided to bifurcate the pricing options. See
NRG Power Mktg., 718 F.3d at 957 (“[W]e afford FERC sub-
stantial deference in its interpretation of its own orders.”).
As with their first challenge, the Generators also argue
that the Commission’s decision to apply Option 2 pricing on-
ly for the additional upgrades violated the filed rate doc-
trine. But this argument founders on the fact that “[t]he filed
rate doctrine simply does not extend to cases in which buy-
ers are on adequate notice that resolution of some specific
issue may cause a later adjustment to the rate being collected
at the time of service.” Natural Gas Clearinghouse v. FERC, 965
F.2d 1066, 1075 (D.C. Cir. 1992). Once MISO and Ameren
filed the amended Agreements with the Commission, both
Pioneer and Settlers were on notice. Compare Shetek Wind
Inc. v. MISO, 138 FERC ¶ 61,250 (2012) (requiring that
changes to terms and conditions of service laid out in the tar-
Nos. 13-2326, 14-3023 17
iff be filed with FERC). After FERC handed down its No-
vember 2011 decision, both companies knew that the addi-
tional network upgrades could be priced under Option 1 or 2.
Pioneer and Settlers would have to pay for the upgrades un-
der either pricing scheme, and the agency has the discretion
to apply the 2011 order accordingly.
Given the standard of review, the choice to grandfather
Option 1 was FERC’s to make. FERC has the authority to de-
cide to apply one reimbursement scheme for the original
upgrades, and a different reimbursement scheme consistent
with the regulatory scheme for the additional upgrades. The
Commission reasonably interpreted its original order for the
approximately $6 million worth of work and the later order
for $11.5 million as two different instruments. It did not act
arbitrarily in deciding to do so.
III
We DENY Pioneer and Settlers’s petitions for review of the
Commission’s orders.