IV. THE APPLICABLE LEGAL STANDARD

FERC's primary obligation under Sections 205 and 206 of the FPA-and the "substantially identical" provisions of the Natural Gas Act (NGA), see Permian Basin Area Rate Cases, 390 U.S. 747, 821 (1968)-is to protect consumers from excessive rates and charges. See Municipal Light Boards v. FPC, 450 F.2d 1341, 1348 (D.C. Cir. 1971), cert. denied, 405 U.S. 989 (1972). These provisions of the FPA were enacted in 1935 to curb the rampant abuse of market power by public utilities. See Gulf States Utilities Co. v. FPC, 411 U.S. 747, 758 (1973).

A public utility's rates are just and reasonable under the FPA, and therefore lawful, when they fall within a "zone of reasonableness" within which the rates are high enough to be compensatory to the utility but not excessive for the consumer. See City of Chicago v. FPC, 458 F.2d 731, 750-51 (D.C. Cir. 1971), cert. denied, 405 U.S. 1074 (1972). See also Permian Basin Area Rate Cases, 390 U.S. at 797; FPC v. Hope Natural Gas Co., 320 U.S. 591, 602-03, 610-12 (1944).

Although FERC has flexibility in selecting ratemaking methodologies, the determination of whether rates and charges meet the statute's just-and-reasonable standard has generally been based on an examination of the costs prudently incurred by the seller in providing the service. "Because the relevant costs, including the cost of capital, often offer the principal points of reference for whether the resulting rate is `less than compensatory' or `excessive,' the most useful and reliable starting point for rate regulation is an inquiry into costs." Farmers Union Central Exchange, Inc. v. FERC, 734 F.2d 1486, 1502 (D.C. Cir.), cert. denied, 469 U.S. 1034 (1984). "[W]hen the inquiry is whether a given rate is just and reasonable to the consumer, the underlying concern is whether it is low enough so that exploitation by the producer is prevented ... [N]o factors apart from producers' costs are available to guide efforts to make that determination from the standpoint of the consumer." City of Chicago v. FPC, 458 F.2d at 751 (emphasis original). While the courts have not required the Commission to use cost-based ratemaking in all cases, "[d]epartures from cost-based rates must be made, if at all, only when the non-cost factors are clearly identified and the substitute or supplemental ratemaking methods ensure that the resulting rate levels are justified by those factors." Farmers Union Central Exchange, 734 F.2d at 1530.

FERC has authority to approve a negotiated or market-based rate for the sale of electricity at wholesale only if the rate is just and reasonable under this standard. Accordingly, a market-based rate is lawful only if the Commission has clearly identified competitive market forces that operate to ensure that the selling price will not be excessive for the consumer. "[T]he prevailing price in the marketplace cannot be the final measure of `just and reasonable' rates mandated by the Act." FPC v. Texaco, 417 U.S. 380, 397 (1974).

The fundamental protection against excessive rates afforded by FERC's approval of market-based rates is the ability of the buyer to say no and buy from numerous alternative sellers at just and reasonable prices. In a competitive market, a rational buyer is free to choose the lowest-cost supplier, and a rational seller cannot expect to sell to the buyer unless its rate is the lowest rate. Absent "substantial evidence ... that market forces will keep [the seller's] prices in reasonable check," Tejas Power Co. v. FERC, 908 F.2d 998, 1005 (D.C. Cir. 1990), FERC cannot lawfully approve market-based rates.

Thus, the D.C. Circuit upheld FERC's approval of market-based rates for gas sales by a natural gas pipeline, see 15 U.S.C. § 717c (a) (requiring the rates charged by a natural gas company to be just and reasonable), where the Commission had "specifically found" that gas sales markets "were sufficiently competitive to preclude [the pipeline] from exercising significant market power in its merchant function" and it appeared that the pipeline "will not be able to raise its price without losing substantial business to rival sellers." Elizabethtown Gas Co. v. FERC, 10 F.3d 866, 871 (D.C. Cir. 1993). The court explained that "[s]uch market discipline provides strong reason to believe [the pipeline] will be able to charge only a price that is `just and reasonable' within the meaning of § 4 of the NGA." Id.

FERC therefore may depart from cost-based rates and approve market-based rates only if it has "empirical proof" that "existing competition [will] ensure that the actual price is just and reasonable." Farmers Union Central Exchange, 734 F.2d at 1503. "Ratemaking principles that permit `profits too huge to be reconcilable with the legislative command' cannot produce just and reasonable rates." Id. at 1502 (quoting Public Service Comm'n v. FERC, 589 F.2d 542, 440 (D.C. Cir. 1978)). In accordance with these principles, FERC scrutinizes a contract at market-based rates to verify that such rates are the result of competitive market forces and not the result of the seller's exercise of market power in a flawed market to charge more than a competitive market price. See Hermiston Generating Co., 72 FERC ¶ 61,071, at 61,351 (1995); Citizens Power & Light Corp., 48 FERC ¶ 61,210, at 61,777 (1989). Thus, FERC reviews a long-term power-sales contract and the circumstances of its negotiation before approving an agreement to charge market-based rates. See PacifiCorp, 78 FERC ¶ 61,081 (1997) (approving long-term agreement to sell firm capacity and energy at market-based rates); PacifiCorp, 77 FERC ¶ 61,280, at 62,222-23 (1996) (approving amendment of existing cost-based rate to allow sales at negotiated, market-based rates); Cincinnati Gas & Elec. Co., 77 FERC ¶ 61,172, at 61,641 (1996) (accepting customer-specific market-based power sales agreement, as well as generally applicable market-based power sales tariff); Entergy Services, Inc., 59 FERC ¶ 61,369, at 62,417 (1992) (rejecting market-based rates under long-term contract because customers lacked meaningful alternatives to buying the seller's product when contracts were negotiated).

Here, as set forth above, FERC has determined that the market in which the challenged contracts were negotiated was not competitive, but rather was wholly dysfunctional, and was not producing just and reasonable rates. FERC's conclusion that spot market prices have been unjust and unreasonable, along with its concession that spot prices affect forward prices, necessarily lead to the conclusion that forward prices agreed to this spring were affected by market power and thus were not just and reasonable.

The contracts between CDWR and numerous generators are subject to review by the FERC under the "just and reasonable" standard set forth in Section 206 of the FPA. The attempt in a few contracts37 to establish that any FERC review of the contracts must employ the higher, "public interest" standard of review pursuant to the "Mobile-Sierra" Doctrine38 must be rejected. FERC has determined that challenges by third party non-signatories to contracts are subject to the "just and reasonable" standard under § 206, regardless of the express wishes of the parties to the contract. In PJM Interconnection, LLC, 96 FERC ¶ 61,206 (2001), the Commission definitively stated that:

Mobile-Sierra does not speak to situations such as this, where a non-party to the RAA [Reliability Assurance Agreement] (such as PJM, which is not a signatory to the RAA) seeks changes under section 206. [n13] Under PPL's interpretation, parties to a contract who agree among themselves not to seek rate changes would be able to bind not only one another, but also other entities who are not parties to that contract (and did not receive the contractual benefits in exchange for which the parties traded away their right to seek rate changes). This result is not what the Supreme Court intended in Mobile-Sierra.

n13 See, e.g., Southern Company Services, Inc. 67 FERC ¶ 61,080 at 61,227-28 (1994); accord, Cities of Anaheim and Riverside v. Deseret Generation & Transmission Co-operative, 90 FERC ¶ 61,236 at 61,755 (2000); Carolina Power & Light Co., 67 FERC ¶ 61,074 at 61,205 (1994); see also Northeast Utilities Service Co., 66 FERC ¶61,332 at 62,081-88, reh'g denied, 68 FERC P61,041 (1994), aff'd, 55 F.3d 686, 689-93 (1st Cir. 1995) ("NU").

Most decisions involving Mobile-Sierra, unlike the case before us, involve a request by one of the signatories to the contract at issue seeking to change the terms of the contract. That is a very different situation, as the cases cited above make clear.39

Parties to a contract cannot bind third parties such as the CPUC, or FERC acting sua sponte on behalf of third parties, to a "public interest" standard of review more stringent than the § 206 "just and reasonable" requirement for all rates under FERC jurisdiction:

We do not interpret the Commission in any circumstance to be bound, absent its consent, to a public interest standard of review for future changes sought by non-parties to the contract or by the Commission sua sponte to protect non-parties to the contract.40

The CPUC is not a signatory to any of the challenged contracts and did not participate in the negotiations leading to their signing, and thus is neither a party to any contract nor bound by any of their strictures, despite contractual provisions attempting to deprive all third parties, or all state entities, from any challenge of the contracts at FERC.41

This is especially true when FERC reviews contracts for the very first time under the FPA, as it is doing in the present instance:

Likewise, we do not interpret the Commission in any circumstance to be bound, absent its consent, to a public interest standard of review when the Commission reviews an agreement initially.42

Because the courts developed the Mobile-Sierra Doctrine in response to requests for modifications to contracts already reviewed and approved by the FERC, its utilization of a high "public interest" standard to modify such contracts is not directly applicable to the first FERC review of a contract.43

Moreover, the FERC has already determined that the standard of review of any complaints about long-term contracts between CDWR and electric suppliers is the "just and reasonable" standard under § 206 of the Federal Power Act. As noted above, § 206 requires that the FERC shall guarantee that all rates for electricity sold in interstate commerce under the jurisdiction of the FERC be "just and reasonable." In the December 15 Order, the FERC stated that to "address concerns about any potentially unjust and unreasonable rates in the long-term markets, we will monitor prices in those markets and also adopt a benchmark that we will use as a reference point in addressing any complaints regarding the pricing of long- term contracts negotiated over the next year."44 In its July 25 Order, FERC again noted that "[i]f DWR (or any other party) believes any of its contracts are unjust and unreasonable, it may file a complaint under FPA section 206 to seek modification of such contracts."45 More recently, in an order conditionally accepting a filed long-term agreement between GWF Energy LLC and CDWR and rejecting the CPUC's protest of such agreement, the FERC noted that its acceptance of a long-term agreement entered into pursuant to previously-granted market-based rate authority is not a finding that such contracts are just and reasonable, that such filings are not vehicles for challenges of the "justness and reasonableness" of such agreements, and that "the appropriate forum for the California Commission to raise its concerns is in a complaint filed under FPA section 206."46

This admonition to parties in December 2000 put them on notice that FERC would utilize the "just and reasonable" standard for their review of any arrangements, even for complaints by DWR, a party to the contract, let alone third parties such as the CPUC. Subsequently negotiated contract language cannot ignore these guidelines, and the FERC must find that rates provided for by the contracts are "just and reasonable." Nor can the parties simply deem the contracts as "just and reasonable" by fiat.47

Even if it were the case that the higher, "public interest" standard of review called for by the Mobile-Sierra Doctrine were applicable, the Calpine and Mirant contracts (and any other contracts with similar language) should nonetheless be abrogated pursuant to that standard. The public interest standard can be met when a non-signatory establishes that a contract never subject to prior FERC review violates the "public interest" of non-parties to the contract - for example, through the unduly preferential or discriminatory effect of such rates under the contract against third party customers, or through an "excessive burden" passed on to customers.48

The FERC and Court of Appeals for the First Circuit have held that the "public interest" standard can be met in § 206 complaints by third parties who "are threatened by possible `undue discrimination' or the imposition of an excessive burden."49 As the FERC noted, in contrast to the "classic" Mobile-Sierra situation, where a seller utility seeks a unilateral increase from a fixed-rate contract already on file, when FERC "is presented with an agreement for the first time and concludes that certain modifications to material rate provisions are necessary to protect the interest of non-parties - the public interest is served by making the modifications [to the contract], and a more flexible [Mobile-Sierra] standard is therefore appropriate."50

The contracts at issue in this complaint are both unduly discriminatory against and excessively burdensome upon California customers. The contracts are excessively burdensome not just because the costs are "catastrophically uneconomical"51 - although this in itself should suffice as rendering the contracts unjust and unreasonable - but also because of the highly asymmetrical distribution of burdens and benefits in the contract terms and conditions. For instance, the contracts generally do not guarantee that suppliers will make supplies available when needed, thus failing to satisfy the apparent reliability problem that signing the contracts was intended to resolve.52 Instead, under most contracts a non-performing supplier simply must pay the difference between any substitute power CDWR is able to obtain - if indeed such power can be bought - and the cost of the power under the contracts, thus undercutting any guarantee that the power will be available to California consumers when needed. The pro forma contracts used as templates for the bulk of the deals - the Edison Electric Institute (EEI)53 and Western Systems Power Pool (WSPP)54 contracts - are not standard for service providers seeking to cover their "net short" positions or utilities serving native load, the responsibilities which DWR was assuming.

In contrast, most of the challenged contracts do not require suppliers to fully mitigate their damages if CDWR breaches. Sellers do not have to find a substitute purchaser of energy, but only have to obtain a valid quotation of a market price from a broker - who does not have to actually purchase the energy - in order to receive damages equal to the difference between the contract price and the broker's quoted price.55 Thus, if CDWR defaults on the contracts, sellers can receive payments based on the difference between the contract price and an estimate of what the "Per Unit Market Price" for such power is, but such sellers do not have to sell (or even generate) such power to receive the payment, or they can subsequently contract to sell such power at a higher level than the "Per Unit Market Price" and pocket the difference. In contrast, if sellers default and CDWR is compelled to replace such power, CDWR as a practical matter must enter into a "Replacement Contract" in order to ensure delivery of such replacement power, even if DWR is not compelled to enter into such replacement contracts in order to ascertain damages. A generator default thus does not guarantee to CDWR that power will be delivered to the state. When "disputed contractual terms may harm third parties to a contract,"56 FERC can modify them to serve the public interest.

Moreover, such factors as seller's market power and lack of arms-length bargaining can also warrant the intervention of the FERC.57 The CPUC has consistently noted the market power possessed by each and every seller at the time the contracts were negotiated in January-February 2001.58 The lack of arms-length bargaining between sellers and certain individuals negotiating on behalf of or advising CDWR has also been widely reported. Indeed, the market power of the generators, and the energy crisis sparked by that market during which the contracts were negotiated, are the main causes behind the enormously high cost of electric power under the contracts.

Finally, the attempt of some sellers to limit the application of the public interest standard "as expressed" in Potomac Elec. Power Co. v. FERC, 210 F.3d 403, 409-10 (D.C. Cir. 2000), cannot be countenanced.59 As the above explanation demonstrates, if the "public interest" standard is applicable at all, FERC determines what standard to apply. Indeed, Potomac Elec. Power upholds the FERC's finding in Northeast Utilities Service Company, 66 F.E.R.C. ¶ 61,332 at 62,086 (1994), aff'd 55 F.3d 686 (1995), that the "court's characterization of the [public interest] standard in Papago60 did not `preclude[ ] the Commission from concluding in other circumstances that the interests of third parties sufficiently outweigh the contracting parties' interests in contract stability to justify the Commission's ordering contract modifications.'"61

Language in Potomac Elec. Power Co. that "FERC precedent makes clear that the fact that a contract has become uneconomic to one of the parties does not necessarily render the contract contrary to the public interest"62 is distinguishable. First, FERC had already reviewed the contract in dispute in that case about which the complaint was filed. Second, the complaint in that case was filed by one of the signatories to the contract, whereas here it is a non-party raising the concerns about unjust and unreasonable prices and non-price terms of the contracts. Third, the "public interest" of third-parties to the contract - i.e., the customers - to be free from undue discrimination or an excessive burden was never raised by the party challenging the contract in that case.63 In contrast, the FERC has never reviewed the challenged contracts prior to this complaint and found such contracts to result in "just and reasonable" rates pursuant to § 206; the challenge to the contracts is brought by the CPUC, a non-signatory and non-party to the agreements; and, as detailed below, the complaint does not just establish that the rates under the contracts are a little bit above market rates or merely "unjust and unreasonable," but that such oppressively high contractual rates, negotiated under duress by parties of unequal experience and bargaining power, will excessively burden California consumers for years to come and unduly discriminate against such consumers as compared to other FERC-jurisdictional wholesale customers outside of California.64

FERC has ordered refunds for unjust and unreasonable sales despite not making a finding that any particular seller in fact had or exercised market power. See Transmission Access Policy Study Group v. FERC, 225 F.3d 667, 687-88 (D.C. Cir. 2000) (remedial action is reasonably justified based on "general findings of systemic monopoly conditions and the resulting potential for anticompetitive behavior, rather than evidence of monopoly and undue discrimination on the part of individual utilities"). The CPUC thus need not provide specific factual evidence of any particular seller's efforts to exert market power (although such evidence will certainly be pursued in discovery). Rather, it is enough that "systemic conditions" at the time provided the opportunity for sellers to engage in anticompetitive behavior. As noted above, FERC has already held that this condition was met here.

37 E.g., Calpine 1 (Ex. 11) and Calpine 2 (Ex. 12), § 10.14: "The terms and conditions and the rates or service specified herein shall remain in effect for the term of this Agreement and the related Transaction and shall not be subject to change through application to the Federal Energy Regulatory Commission by either Party, including the State of California and any of its agencies, pursuant to the provisions of Section 205 or 206 of the Federal Power Act. Each Party expressly agrees that it will not make any filings under either Section 205 or Section 206 of the Federal Power Act to revise the rate schedule. If, however, a third party should make such a filing, the proponent will be required to meet the public interest standard as expressed in the Mobile-Sierra doctrine under Section 206 of the Federal Power Act and Potomac Elec. Power Co. v. FERC, 210 F.3d 403, 409-10 (D.C. Cir. 2000). Each Party expressly retains its rights to protest or otherwise challenge any such revisions or filings"; see also Mirant (Ex. 24) § 6; Allegheny 1 (Ex. 1), §10.13(c). 38 The Mobile-Sierra doctrine derives from the Supreme Court's decisions in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) (Mobile), and FPC v. Sierra Pacific Power Co., 350 U.S. 348 (1956) (Sierra). 39 PJM Interconnection, LLC, 96 FERC ¶ 61,206 (2001). 40 Southern Company Services, Inc., 67 FERC ¶ 61,080 at p. 61,228 (1994). 41 See infra part. VI.B. 42 Southern Company Services, Inc., 67 FERC ¶ 61,080 at p. 61,228 (1994). 43 Although the CPUC has previously protested certain contracts challenged herein, FERC has declined to provide any substantive review of any of the protested contracts. See Pacificorp Power Marketing, 97 FERC ¶ 61,105 (2001); GWF Energy, 97 FERC ¶ 61,297 (2001). 44 December 15 Order at 61,994. 45 San Diego Gas & Electric Co. et al., 96 FERC ¶ 61,120 at 61,515 (2001). 46 GWF Energy, 97 FERC ¶ 61,297 (2001) (December 19, 2001), slip op. at pp. 3-4. 47 See infra part VI.B.1. 48 See, e.g., PJM Interconnection, LLC, 96 FERC ¶ 61,206 (2001). 49 Northeast Utilities Service Co. v. FERC, 55 F.3d 686, 691 (1st Cir. 1995) ("Northeast II"), citing Northeast Utilities Service v. FERC, 993 F.2d 937, 961 (1st Cir. 1993) ("Northeast I"). 50 Northeast Utilities Service Co., 66 FERC ¶ 61,332 at 62,076 (1994), cited by Northeast II, 55 F.3d at 692. 51 Mississippi Industries v. FERC, 808 F.2d 1525, 1528 (D.C. Cir.), cert. denied 484 U.S. 985 (1987) (rejecting jurisdictional challenge based, inter alia, on the Mobile-Sierra doctrine, because of undue burden of cost allocation of the costs of construction of a nuclear plant between customers of different states). 52 See California State Auditor, "California Energy Markets: Pressures Have Eased, But Cost Risks Remain," at iii & Chapter 2 , ("The terms and conditions of the long-term contracts are also problematic because the majority of the contracts may not ensure a reliable source of power in times of tight supply and high prices"). The report is available at http://www.bsa.ca.gov/bsa/pdfs/2001009.pdf, and is attached hereto as Exhibit 39. 53 Exhibit 18. 54 Exhibit 33. 55 Section 5.3 of numerous contracts, including High Desert (Ex. 22), Constellation (Ex. 15) and Williams (Ex. 34), contain the following definition of how to calculate the Termination Payment (with CDWR as "Party B"), and virtually all other contracts, including Wellhead-Gates (Ex. 31)and Wellhead-Panoche (Ex. 32), GWF (Ex. 21), Fresno (Ex. 20), Sunrise (Ex. 30), PacifiCorp (Ex. 26, § 11.6.1), Morgan Stanley (Ex. 25), Alliance (Ex. 3), Coral (Ex. 16), Calpine 2 (Ex. 12), El Paso (Ex. 19), Calpeak (all seven contracts, Exs. 10-16,§ 7.03), Sempra (Ex. 28, § 6.04), Imperial Valley (Ex. 23, § 6.3), Clearwood (Ex. 14, § 6.03), PGET (Ex. 27), and Soledad (Ex. 29, § 6.03)contain the emphasized clause below not requiring defaulting parties to mitigate damages by entering into a replacement contract: "(a) Market Value shall be (i) in the case Party B is the Non-Defaulting Party, the present value of the positive difference, if any, of (A) payments under a Replacement Contract based on the Per Unit Market Price, and (B) payments under this Agreement, or (ii) in the case Party A is the Non-Defaulting Party, the present value of the positive difference, if any, of (A) payments under this Agreement, and (B) payments under a Replacement Contract based on the Per Unit Market Price, in each case using the Present Value Rate as of the time of termination (to take account of the period between the time notice of termination was effective and when such amount would have otherwise been due pursuant to the relevant transaction). The "Present Value Rate" shall mean the sum of 0.50% plus the yield reported on page "USD" of the Bloomberg Financial Markets Services Screen (or, if not available, any other nationally recognized trading screen reporting on-line intraday trading in United States government securities) at 11:00 a.m. (New York City, New York time) for the United States government securities having a maturity that matches the average remaining term of this Agreement. It is expressly agreed that the Non-Defaulting Party shall not be required to enter into Replacement Contract in order to determine the Termination Payment. "(b) To ascertain the Per Unit Market Price of a Replacement Contract with a term of less than one year, the Non-Defaulting Party may consider, among other valuations, quotations from leading dealers in energy contracts, the settlement prices on established, actively traded power exchanges, other bona fide third party offer and other commercially reasonable market information. "(c) To ascertain the Per Unit Market Price of a Replacement Contract with a term of one year of more, the Non-Defaulting party shall use the Market Quotation Average Price; provided, however, that if there is an actively traded market for such Replacement Contract or if the Non-Defaulting Party is unable to obtain reliable quotations from at least three (3) Reference Market-makers, the Non-Defaulting Party shall use the methodology set forth in paragraph (b). "(d) In no event, however, shall a party's Market Value or Costs include any penalties, ratcheted demand charges or similar charges imposed by the Non-Defaulting Party." (emphasis added). 56 Northeast II, 55 F.3d. at 692. 57 Northeast II, 55. F.3d at 691. 58 See CPUC protests and related filings in Docket Nos. ER01-2644 (Colton Power); ER01-3068 (Colton Power); ER01-2685 (Pacificorp Power Marketing); ER02-42 (GWF Energy); ER02-146 et al (CalPeak); ER02-189 (Fresno). 59 See infra note 81 for contracts containing this specified standard of review for FERC. 60 Papago Tribal Util. Auth. v. FERC, 232 U.S. App. D.C. 424, 723 F.2d 950 (D.C. Cir. 1983), cert. denied 467 U.S. 1241 (1984). 61 Potomac Elec. Power Co. v. FERC, 210 F.3d 403, 408 (D.C. Cir. 2000). 62 Id., 210 F.3d at 409 (emphasis added). 63 Id. at 409-410. 64 The recent filing by Nevada utilities of ten separate § 206 complaints against generators with whom they had negotiated long-term contracts under similar, if less drastic, circumstances than California, does not detract from the uniqueness of the plight of California wholesale customers, nor the validity of the claims in the Nevada complaints, by virtue of the fact that other customers suffered similarly unjust and unreasonable rates, or rates not in the public interest. Nevada Power Company and Sierra Pacific Power Company v. Duke Energy Trading and Marketing, Inc., FERC Docket No. EL-02-26-000 (Nov. 30, 2001); Nevada Power Company and Sierra Pacific Power Company v. Enron Power Marketing, Inc., FERC Docket No. EL-02-28-000 (Nov. 30, 2001); Nevada Power Company v. Morgan Stanley Capital Group, Inc., FERC Docket No. EL-02-29-000 (Dec. 4, 2001); Nevada Power Company and Sierra Pacific Power Company v. Calpine Energy Services, L.P., FERC Docket No. EL-02-30-000 (Dec.. 4, 2001); Nevada Power Company v. Mirant Americas Energy Marketing, L.P., FERC Docket No. EL-02-31-000 (Dec. 5, 2001); Nevada Power Company v Reliant Energy Services, Inc., FERC Docket No. EL-02-32-000 (Dec. 5, 2001); Nevada Power Company and Sierra Pacific Power Company v. El Paso Merchant Energy, L.P., FERC Docket No. EL-02-33-000 (Dec. 5, 2001); Nevada Power Company v. BP Energy Company, FERC Docket No. EL-02-34-000 (Dec. 5, 2001); Nevada Power Company and Sierra Pacific Power Company v. American Electric Power Services Corp., FERC Docket No. EL-02-38-000 (Dec. 6, 2001).

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