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

15existence. Without that guarantee, the market (i)will not be able to attract sufficient capital to buildand maintain the extensive and expensive infrastructurerequired for the production, transportation,and delivery of energy; (ii) will not be able tosecure the participation of power marketers, whomake the market more competitive; and (iii) will notbe able to ensure that energy is provided to the publicwhen the need for such power is at its greatest. Amarket operating under these constraints will fail toprovide the service required by consumers who relyon it for their daily energy needs.1. The contractual stability secured by Mobile-Sierra is critical to the wholesale power market, firstand foremost, because the massive investmentsneeded to build and maintain the infrastructure forthe production, transportation, and delivery of powerrequire that market participants have confidencethat their agreements will remain binding in the future,even if one of the parties comes to conclude inhindsight that the original deal was improvident. Asthis Court recognized in United Gas Pipe Line Co. v.Memphis Light, Gas & Water Division, 358 U.S. 103(1958), without reliable legal protection of energyproducers’ contract rights, “the maintenance and expansionof their systems through equity and debt financingwould become most difficult, if not impossible.”Id. at 113. Since the enactment of the FPA,“[e]conomies of scale have justified the constructionof large . . . generation facilities” that produce powermore efficiently and cheaply than ever before—butthat also require ever-more significant amounts ofcapital to create. Transmission Access Policy StudyGroup v. FERC, 225 F.3d 667, 681 (D.C. Cir. 2000).