NRG POWER MARKETING, LLC, ET AL., Petitioners, v ... - ISDA

7seek to set aside a contract rate free from the presumptionof validity demanded by Mobile-Sierra.Indeed, the court of appeals’ decision below affectsthe sanctity of the very contracts at issue inMorgan Stanley itself. One of the respondents in theMorgan Stanley case, the Nevada Bureau of ConsumerProtection, has argued before FERC on remandfrom this Court’s decision that, under the D.C.Circuit’s decision below, it can freely challenge therates in the Morgan Stanley contracts unencumberedby the Mobile-Sierra presumption. TheCourt’s opinion in Morgan Stanley, however, nowheresuggests that the public interest standard itordered the Commission to apply was applicable onlyto the contracting respondents. On the contrary, theCourt emphasized that “[t]here is only one statutorystandard for assessing wholesale electricity rates”—the just-and-reasonable standard—and when thatstandard is applied to contracted-for rates, it permitsthe Commission to overturn only rates that would“seriously harm the public interest.” MorganStanley, 128 S. Ct. at 2745, 2747. The D.C. Circuit’sdecision varies the application of the statutory standard,to the very same rate, based on who asksFERC to apply it. There is no justification for applyinga varied interpretation to the fixed terms of thestatute in that manner.Such an approach is particularly problematic inthe context of the FPA. Contracts play an integralrole in that statutory scheme, and contract stabilityis essential to the wholesale energy markets towhich the statute applies. The uncertainty createdby the court of appeals’ approach would thoroughlyundermine contractual integrity, with substantial