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

13contracts at issue in the case. 2 The Nevada BCPnonetheless has argued on remand that the D.C.Circuit’s opinion below “precludes application of theMobile-Sierra presumption of justness and reasonablenessin evaluating the Nevada BCP’s challenge”to the very same contracts. Nevada Attorney General,Bureau of Consumer Protection Answer to Snohomish’sCross-Motion for Procedures on Remand ofMorgan Stanley at 3-4 (Dec. 9, 2008) (Nevada BCPAnswer). The BCP accordingly asserted that theCommission could, “based on its findings to date,conclude that the rates included in the . . . Nevadacontracts [before the Commission] are unjust andunreasonable” and “order refunds” based on “the differencebetween the contract rates and just and reasonablerates.” Id. at 4.The Commission rejected Nevada’s argument as“premature,” and “strongly encourage[d] all partiesin th[e] matter to settle their disputes.” FERC Orderon Remand at 15 n.63 & 18, No. EL02-28-006, et al.(Dec. 18, 2008). The BCP, however, filed a petitionfor rehearing, arguing that the paper hearing orderedby FERC “was unnecessary and inappropriate”in that the “Commission erred in failing to specifythat, pursuant to Maine PUC, the Mobile-Sierra presumptionof justness and reasonableness does notapply to the Nevada BCP’s challenge to the NV Energycontracts at issue in [Morgan Stanley].” Re-2 See, e.g., Morgan Stanley, 128 S. Ct. at 2750 (Commissionon remand to consider whether increase in rates during thecrisis was “so great that, even taking into account the desirabilityof fostering market-stabilizing long-term contracts, therates impose an excessive burden on consumers or otherwiseseriously harm the public interest”).