Ohio Power Company, Petitioner, v. Federal Energy Regulatory Commission, Respondent,ohio Municipals, Intervenors, 897 F.2d 540 (D.C. Cir. 1989)

Upon consideration of the Petitions For Rehearing of Respondent Federal Energy Regulatory Commission and Intervenor Ohio Municipals, it is

ORDERED, by the Court, that the petitions are denied.

Circuit Judge MIKVA would grant the petitions for rehearing. His statement is attached.

ON PETITION FOR REHEARING

Statement of MIKVA, Circuit Judge.

I would grant the petition for rehearing by the panel. I continue to be concerned that the panel opinion creates a regulatory gap that can be mischievous in future cases. As I stated in my concurring opinion when the case was originally heard, there is no conflicting requirement imposed by the agencies involved with respect to the same subject matter. Accordingly, the Federal Energy Regulatory Commission (FERC) was not ousted of its jurisdiction over the price of coal charged to Ohio Power Company. The flaw in FERC's decision stems from a fatal conflict with its own regulations, and warrants granting the petition for review, as the panel decision ordained. The statutory interpretation engaged in by the majority, however, generates a no-man's land where neither the Securities and Exchange Commission (SEC) nor FERC will patrol holding company practices which can oppress consumers, investors and the public. Congress did not intend and our court should not construct such a result.

Because the result in the instant petition would not be affected by my interpretation of the relevant statutes, I do not call for a rehearing by our full court. I do continue to express a concern about what I perceive to be a flawed parsing of the statutes involved in this important and delicate area of interagency administration of the law.

Before WALD, Chief Judge, and MIKVA, EDWARDS, RUTH B. GINSBURG, SILBERMAN, BUCKLEY, WILLIAMS, D.H. GINSBURG and SENTELLE, Circuit Judges.

ORDER

PER CURIAM.

The Suggestions For Rehearing En Banc of Intervenor Ohio Municipals and of the Federal Energy Regulatory Commission have been circulated to the full Court. No member of the Court requested the taking of a vote thereon. Upon consideration of the foregoing it is

ORDERED, by the Court en banc, that the aforesaid suggestions are denied.