City of Cleveland v. United States Nuclear Regulatory Commission

68 F.3d 1361, 314 U.S. App. D.C. 310
Court of Appeals for the D.C. Circuit·Decided October 27, 1995·No. Nos. 92-1532, 93-1665, 93-1672 and 93-1673·Published·Cited by 2 cases

Opinion

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioners Cleveland Electric Illuminating Company, Ohio Edison Company, and Toledo Edison Company (“Licensees”) seek review of an order by the United States Nuclear Regulatory Commission (“NRC” or “Commission”) denying their applications to suspend antitrust conditions imposed on two nuclear power plants owned by Licensees. The City of Cleveland, American Municipal Power-Ohio, and the City of Brook Park (“Cleveland”) also appeal a separate order by the Commission denying their challenge to its statutory authority to suspend antitrust conditions. We affirm the Commission’s order denying Licensees’ suspension applications. We also hold that Cleveland has not demonstrated it was aggrieved by the ruling it challenges, and therefore dismiss Cleveland’s petition without reaching the merits.

I. BACKGROUND

The Atomic Energy Act of 1964, as amended, (“AEA” or “Act”) authorizes the NRC to impose remedial conditions on a nuclear power plant if “activities under the [plant’s operating] license would create or maintain a situation inconsistent with the antitrust laws.” AEA, 42 U.S.C. § 2135(e)(5) (1988) (“§ 105(e)”). To ensure that conditions are imposed as necessary, the Act directs the NRC to seek a recommendation from the Attorney General and make a finding as to whether the plant’s activities will have an adverse antitrust impact, before issuing a license. Id.

A. Initial License Proceedings

As required by the Act, the NRC considered potential antitrust problems during the initial license proceedings for the two plants owned by Licensees, the Perry Nuclear Power Plant and the Davis-Besse Nuclear Power Station. Toledo Edison Co., 10 N.R.C. 265 (1979), ajfg as modified 5 N.R.C. 133 (1977). Because the Commission’s findings are relevant to the question of whether the license conditions can be retained even though the power produced by these stations turned out to be higher in cost than power from alternative sources, we discuss those proceedings in some detail.

In its order imposing antitrust conditions on the plants, the Commission first made extensive findings of fact about ongoing anti-competitive acts by the Licensees that were directed against smaller electric utilities in the region competing with Licensees for sale of wholesale and retail power. The three Licensees who are petitioners in this proceeding, along with two other neighboring electric utilities who did not join petitioners’ suspension request, formed a regional power pool called the Central Area Power Coordination group (“CAPCO”). The purpose of CAPCO was to “coordinate installation of generation and transmission in order to further reliability and to take advantage of scale economies.” 5 N.R.C. at 152. Each CAPCO member dominated generation, transmission, and sale of electric energy within its particular service area, controlling between 94% and 100% of all generating capacity and transmission facilities, and accounting for between 94% and 100% of retail and wholesale sales. 5 N.R.C. at 153-54. This dominance was maintained, in part, by the companies’ decision to operate as a unified system. CAPCO members coordinated their operation through connections among all of the utilities (“interconnection”); sharing of power reserves during times of shortage, maintenance outages, and construction; and exchange and sale of various types of power at low rates. 5 N.R.C. at 154-55. CAPCO companies also engaged in coordinated development, constructing shared generating units and transmission facilities according to a joint plan. 5 N.R.C. at 153.

Not only did CAPCO members realize the legitimate benefits of economies of scale and coordinated operation, but more importantly, they used this arrangement to forestall competition from other smaller utilities in the region. CAPCO members avoided competition among themselves, through either explicit agreements or failure to solicit customers of fellow CAPCO utilities. 5 N.R.C. at 143, 190-95, 214-17. They denied competing utilities membership in the power pool and refused to make available to competitors any of the benefits of interconnection, including sharing of reserves and exchanges of emergency or economy rate power. 5 N.R.C. at [1364]*1364144 n. 9, 224-25, 227-31. CAPCO utilities also refused to “wheel” power, or transport it from outside utilities across their transmission lines, to competing utilities inside CAPCO territory. 5 N.R.C. at 144 n. 9. Due to economic and regulatory constraints, competitors could not construct their own duplicative transmission lines and, without CAPCO’s cooperation, could not obtain access to outside power sources. 5 N.R.C. at 156-58. These competitors were often left with only one option — buying power from CAPCO utilities for resale — but CAPCO companies would sell their power only if competitors agreed to rate-fixing and other unfair and anti-competitive terms. 5 N.R.C. at 167-68, 177-78, 180-82, 200-03.

After examining these facts, the Commission concluded that the market structure created by CAPCO members through their formation of an exclusive power pool gave them the ability to prevent competing utilities from gaining access to the benefits of coordinated operation and economy of scale which they themselves enjoyed, and that this ability had, in fact, been used to create and maintain a situation inconsistent with the antitrust laws. 5 N.R.C. at 238^41, 255; 10 N.R.C. at 281. The cooperative arrangement made this situation possible even though the power offered by CAPCO companies was higher in price than the power of competing smaller utilities. 5 N.R.C. at 166 (“Rates and quality of service were and are the principal elements of competition between these utilities, with Cleveland traditionally offering lower rates and CEI greater reliability.” (citations omitted)).

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City of Cleveland v. United States Nuclear Regulatory Commission, 68 F.3d 1361, 314 U.S. App. D.C. 310 (D.C. Cir. 1995).

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