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PUBLIC SYSTEMS v. FED. ENERGY REG. COM'N

Nos. 76-1609, 76-1830.

606 F.2d 973 (1979)

PUBLIC SYSTEMS et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Commonwealth Edison Co., New England Power Co. et al., Southern California Edison Company, Consumers Power Company, Tennessee Gas Pipeline Co., Intervenors. PUBLIC SYSTEMS et al., Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Investor-owned Utility Companies, Consumers Power Company, Tennessee Gas Pipeline Co., Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided February 16, 1979.

Rehearing Denied March 30, 1979.

Attorney(s) appearing for the Case

James N. Horwood, Washington, D. C., for petitioners. Robert C. McDiarmid, Robert A. Jablon, Daniel I. Davidson, and Bonnie S. Blair, Washington, D. C., were on the brief, for petitioners.

Dennis Lane, Atty., Federal Energy Regulatory Commission, for respondent. Drexel D. Journey, Gen. Counsel, Robert W. Perdue, Deputy Gen. Counsel, Allan Abbot Tuttle, Sol., Washington, D. C. and Danny J. Boggs, Bowling Green, Ky., Atty., Federal Energy Regulatory Commission, were on the brief, for respondent.

James B. Liberman, Washington, D. C., with whom Frederick T. Searls and Leonard W. Belter, Washington, D. C., were on the brief, for intervenor New England Power Co., et al. Mr. Liberman argued for all intervenors.

Joseph C. Swidler, Washington, D. C., was on the brief, for intervenor Commonwealth Edison Co. in No. 76-1609.

George A. Avery and Keith S. Watson, Washington, D. C., were on the brief, for intervenor Consumers Power Co.

Melvin Richter and Terence J. Collins, Washington, D. C., entered appearances for intervenor Tennessee Gas Pipeline Co.

Before WRIGHT, Chief Judge, BAZELON and ROBB, Circuit Judges.

Opinion for the Court filed by BAZELON, Circuit Judge.

Dissenting opinion filed by ROBB, Circuit Judge.

BAZELON, Circuit Judge:

Petitioners, municipally-owned utilities, challenge a rule promulgated by the Federal Power Commission (FPC) permitting "comprehensive interperiod tax allocation" (CITA) for interstate suppliers of gas and electricity. The rule allows suppliers to "normalize" an unspecified number of tax benefits,1

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