Statement of Commissioner James P. Danly
August 26, 2022

I do not write today in order to relitigate the merits of the case.  We have already done that and I append my Fair RATES Act[1] statement for the reader’s convenience.[2]  Instead, I write to make everyone aware that the brief filed by the FERC Solicitor’s Office on July 22, 2022[3] is not what it purports to be and to further explain why the brief should be accorded no greater deference or regard than any other litigant’s submission.  It should never have been filed.

I caution anyone who chances to read this brief—do not be fooled.  Its references to “FERC” and “the Commission,” are in reality references to “Chairman Glick and Commissioner Clements.”[4]  There is no question—the brief filed does not represent the position of the Commission.[5]  That this brief was filed “for Respondent Federal Energy Regulatory Commission”[6] is untrue as a matter of fact.  It does not represent the view of the Commission as a body, and it does not represent my views on the merits nor those of Commissioner Christie[7]—both of us voted to reject PJM Interconnection, L.L.C.’s (PJM) tariff filing because it is unjust and unreasonable and we each explained why in our individual Fair RATES Act statements.[8]

Since the Commission never issued an order,[9] the Commission’s lawyers should have instead filed a brief that explained the statute’s operation and appended the three Fair RATES Act statements, declining to either advance a merits argument or to advocate for particular relief.

To have done so runs afoul of the Department of Energy Organization Act (DOE Organization Act) which provides that “attorneys designated by the Chairman of the Commission may appear for, and represent the Commission in, any civil action brought in connection with any function carried out by the Commission pursuant to this chapter or as otherwise authorized by law.”[10]  Although the statute plainly designates them the Commission’s lawyers, the FERC Solicitor’s Office has nevertheless filed a brief advancing the position of only two of the four voting commissioners.  The joint statement of Chairman Glick and Commissioner Clements argues for approval of the tariff filing that went into effect by operation of law[11]—those were arguments that the Commission could have adopted but did not.  The Solicitor’s Office Brief now purports to advance those same arguments on behalf of the body that did not adopt them.

Advancing Positions in Litigation on Behalf of the Commission that the Commission Considered—but Did not Adopt—is Inconsistent with the DOE Organization Act

The DOE Organization Act declares that the Chairman acts on behalf of the Commission when serving as the agency’s executive and administrative head.[12]  It further provides that “[t]he Commission shall be composed of five members,”[13] that “[e]ach member of the Commission, including the Chairman, shall have one vote,” and that “[a]ctions of the Commission shall be determined by a majority vote of the members present.”[14]  As the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) recently explained, the requirement that “‘[a]ctions of the Commission shall be determined by a majority vote’”[15] “comport with the ‘almost universally accepted common-law rule’ that only a ‘majority of a collective body is empowered to act for the body.’”[16]  It is also axiomatic, as the D.C. Circuit has stated, “that an agency’s authority runs to it as ‘an entity apart from its members, and it is its institutional decisions—none other—that bear legal significance.’”[17]  Thus, the DOE Organization Act establishes a relationship between the Commission and the Chairman akin to that of a principal and agent since the Chairman acts “on behalf of the Commission.”[18]  And it is the Commission’s pronouncements as a body—and only its pronouncements as a body, that have legal effect.[19]  It at least runs contrary to the spirit of the DOE Organization Act, and may well violate it, for the Chairman to employ instrumentalities of the Commission, like the Solicitor’s Office, to advance litigation positions in pursuit of his own particular goals when they are not the position of the Commission, especially when done so under the guise of representing the body as a body.

Advancing Positions in Litigation on Behalf of the Commission that the Commission Considered—but Did not Adopt—is Inconsistent with the Administrative Procedure Act

Before Congress enacted FPA section 205(g),[20] parties were unable to obtain judicial review in the event of a tariff filing going into effect by operation of law because of either a 2-2 deadlock or because of a lack of quorum.[21]  FPA section 205(g) was enacted for a specific purpose:  to ensure that the appeal rights that would otherwise be enjoyed by litigants would not be extinguished when “the Commission permits the 60-day period established”[22] in FPA section 205(d)[23] “to expire without issuing an order accepting or denying the change because the Commissioners are divided two against two as to the lawfulness of the change, as a result of vacancy, incapacity, or recusal on the Commission, or if the Commission lacks a quorum.”[24]

In such circumstances, “the failure to issue an order accepting or denying the change by the Commission shall be considered to be an order issued by the Commission accepting the change for purposes of section 825l(a) of this title.”[25]  To be clear:  the statute declares this “failure” to be “an order” for the sole and specific purpose of seeking rehearing pursuant to FPA section 313(a).[26]  Further, FPA section 205(g)(2)[27] provides that a party that seeks rehearing of a proceeding that triggered FPA section 205(g)(1)(A)[28] may appeal pursuant to FPA section 313(b)[29] if “the Commission fails to act on the merits of the rehearing request by the date that is 30 days after the date of the rehearing request because the Commissioners are divided two against two, as a result of vacancy, incapacity, or recusal on the Commission, or if the Commission lacks a quorum.”[30]  This section merely provides an avenue for rehearing and appeal.[31]  And while FPA section 205(g)(1)(B) does require that “each Commissioner shall add to the record of the Commission a written statement explaining the views of the Commissioner with respect to the change,”[32] nothing in section 205(g) provides that that those statements may be advanced on appeal in order to serve as the reasoning required to satisfy the Commission’s obligations to engage in reasoned decision making under the Administrative Procedure Act (APA). 

The Solicitor’s Office Brief asserts that “the most natural basis for that review is the Commissioner statements that support ‘accepting the [rate] change’ that has now become the filed rate, although that does not preclude the Court from also considering the statements of other Commissioners, as it would in reviewing a typical Commission order.”[33]  The Solicitor’s Office Brief sets forth this position as if a joint statement (one by fewer than a majority of voting commissioners) could be treated as the equivalent of a Commission order.  It is not and it cannot.  In the recent Midcontinent Independent System Operator, Inc. order,[34] all four of my colleagues issued a joint separate statement attached to the order.  The contents of that joint separate statement were not part of the order because my colleagues chose to issue it separately, despite having a majority that could have voted to include any or all of the separate statement’s content in the order’s text.  Would anyone suggest that that statement could be accorded the same status as a Commission order?

It is only Commission orders that matter.  And the Commission has repeatedly recognized as much, as it has in recent orders issued unanimously by all four commissioners who participated in this proceeding.  In one such order we all declared that “[t]he Commission speaks through, and only through, its orders.”[35]  The Commission underscored this very point in an order issued only six days after the Solicitor’s Office Brief was filed:

As we have stated before, “[t]he Commission speaks through its orders,” which reflect a majority vote of a quorum of the Commission.  The Chairman’s responsibilities for executive and administrative operations are undertaken “on behalf of the Commission.”[36]

And although this has been the explicit, repeated, and invariant position of the Commission[37]—the Solicitor’s Office Brief now asserts that the joint Fair RATES Act statement of Chairman Glick and Commissioner Clements may stand in the place of a Commission order by serving as the reasoned decision making required for APA review.[38]  I disagree.[39]  Since there is no order in which the Commission, acting as a body, has provided the reasoning upon which the Commission’s action (such as it was) was taken, there is no order amenable to being reviewed or upheld on appeal.

The Fair RATES Act does not provide that individual statements by commissioners can take the place of Commission orders.[40]  The FPA is an important statute, to be sure, but narrow.  The principles governing administrative law, on the other hand, are universal.  To adopt the position advanced by the Solicitor’s Office Brief would require believing that Congress, while legislating relief to a small class of litigants harmed by the operation of a procedural provision in an idiosyncratic statute,[41] intended to eliminate the APA’s bedrock requirement that agencies engage in reasoned decision making.[42]  Would it not be surprising to discover the partial repeal of the APA when it informs the mechanics and contents of every order issued by every administrative agency in whole of government, especially when the statute that worked this repeal did not breathe a word about it?  Put simply, the Fair RATES Act did not overturn the entire canon of APA law and its attendant judicial doctrines soto voce because “Congress . . . does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.”[43]

The “order” went into effect by operation of law.  There is thus no reasoning articulated by the agency for why it took its actions.  The Commission’s “action” therefore cannot be found to satisfy the bedrock principles of Chenery—a court can only sustain agency action on grounds actually articulated by the agency.[44]  It also falls short under State Farm.[45]  The Commission had found, in an earlier order, that the then-prevailing rates in PJM were unjust and unreasonable and fixed a replacement rate under FPA section 206.[46]  The PJM filing at issue in this proceeding attempts to undo that finding.  Given the absence of a Commission order adopting reasoning that acknowledges this departure and explaining the connection between the facts found and the choice made, the Commission cannot satisfy the requirements of State Farm.  To allow the separate statement of two commissioners to satisfy these requirements would be to allow a minority to overturn the actions of the full Commission acting as a body.  It seems unlikely that the Fair RATES Act contemplated the reversal and nullification of a Commission-majority order based upon reasons provided by fewer than a majority of the Commission.


“How quick come the reasons for approving what we like!”[47]  In this case, the Chairman oversaw the submission of a brief that presents the position of two commissioners as if it were the position of the Commission.  This flouts the structure of DOE Organization Act, upsetting the norms of corporate action that govern an independent agency like FERC.  The Chairman should have directed the Solicitor’s Office to file a brief that did no more than explain the statutory operation of FPA section 205(g) with the Commissioners’ separate Fair RATES Act statements attached, as the statute contemplates, and it should have refrained from either advancing merits arguments or from seeking specific relief.  The Solicitor’s Office Brief is not a Commission order, cannot stand in for one, and is owed no greater deference or solicitude by any reader than is due to the submission of any other litigant.


[1] In October 2018, the America’s Water Infrastructure Act became law.  America’s Water Infrastructure Act of 2018, Pub. L. No. 115-270, 132 Stat. 3765 (2018).  That Act included provisions from the Fair Ratepayer Accountability, Transparency, and Efficiency Standards Act (the Fair RATES Act) amending Federal Power Act (FPA) section 205 to treat inaction by the Commission that allows a rate change to take effect as an order for purposes of rehearing and appeal.  See id. § 3006.

[2] See infra at Appendix; Statement of Commissioner Danly, Docket No. ER21-2582-000 (Oct. 27, 2021) (FERC Accession No. 20211027-4003) (Danly Fair RATES Act Statement).

[3] Brief for Respondent Federal Energy Regulatory Commission, PJM Power Providers Group v. FERC, Nos. 21-3068, et al. (3d Cir. July 22, 2022) (Solicitor’s Office Br.).  I refer to the brief as the “Solicitor’s Office Brief” because that is the office within Commission staff that submits appellate court filings, but I should note that the Solicitor’s Office acts under the supervision of FERC’s General Counsel and at the direction of the Chairman.

[4] But see Solicitor’s Office Br. xiv (providing a glossary and defining “Commission or FERC” as “Respondent Federal Energy Regulatory Commission”); id. at 1 (“In this brief, the Federal Energy Regulatory Commission (‘Commission’ or ‘FERC’) gives meaningful effect to Congress’ language and intent in enacting new Section 205(g) of the Act, 16 U.S.C. §824d(g).  As discussed infra, the Commission herein defends the electric rate that has taken effect by operation of law.”).

[5] Once the Solicitor’s Office Brief was filed, I wanted to directly participate in this litigation in order to eliminate the asymmetry that has arisen by the advancement of only two of the four voting commissioners’ views on the merits of PJM’s submission.  However, following consultation with the Designated Agency Ethics Official, the fact that there was no safe harbor for my attorneys meant that, while perhaps a remote possibility, my participation could expose them to liability under 18 U.S.C. § 205(a).

[6] E.g., Solicitor’s Office Br. 1.

[7] Fairness demands that I pause to note my appreciation for the accuracy of the discussion of my Fair RATES Act Statement in the Solicitor’s Office Brief.  I am grateful to have been afforded the opportunity to edit and comment on the section containing the 419 words describing my position in order to ensure its fidelity to my statement as well as the addition of a handful of other minor edits.  See Solicitor’s Office Br. 29-31.

[8] See Danly Fair RATES Act Statement at P 3 (explaining that “PJM’s proposed revisions to its [Minimum Offer Price Rule (MOPR)] are unjust and unreasonable and why the Commission should have rejected PJM’s submission in an order denying its FPA section 205 filing”); Statement of Commissioner Christie, Docket No. ER21-2582-000, at P 6 n.11 (Oct. 19, 2021) (FERC Accession No. 20211019-4002) (disagreeing with the position of Chairman Glick and Commissioner Clements and stating that he “would reject the PJM section 205 MOPR Proposal filing as unjust and unreasonable and immediately initiate a FPA section 206 proceeding to develop a just and reasonable alternative”) (emphasis in original).

[9] Actually, it did:  pursuant to FPA section 206, 16 U.S.C. § 824e, a Commission majority found that the then-prevailing rate was unjust and unreasonable and set a replacement rate which the instant PJM filing, if upheld on appeal, would reverse.  See Calpine Corp. v. PJM Interconnection, L.L.C., 163 FERC ¶ 61,236 (2018), order establishing just & reasonable rate, 169 FERC ¶ 61,239 (2019), order on reh’g & clarification, 171 FERC ¶ 61,034, order on reh’g & clarification, 171 FERC ¶ 61,035, order on reh’g & compliance, 173 FERC ¶ 61,061 (2020), order on compliance & clarification, 174 FERC ¶ 61,036, order setting aside prior order, in part, 174 FERC ¶ 61,109 (2021).

[10] 42 U.S.C. § 7171(i) (emphasis added).

[11] See Joint Statement of Chairman Glick & Commissioner Clements, Docket No. ER21-2582-000 (Oct. 19, 2021) (FERC Accession No. 20211019-4001).

[12] See 42 U.S.C. § 7171(c) (“The Chairman shall be responsible on behalf of the Commission for the executive and administrative operation of the Commission . . . .”) (emphasis added); id. § 7171(i) (“attorneys designated by the Chairman of the Commission may appear for, and represent the Commission in, any civil action brought in connection with any function carried out by the Commission pursuant to this chapter or as otherwise authorized by law”) (emphasis added).

[13] Id. § 7171(b)(1).

[14] Id. § 7171(e).

[15] Pub. Citizen, Inc. v. FERC, 839 F.3d 1165, 1169 (D.C. Cir. 2016) (quoting 42 U.S.C. § 7171(e)).

[16] Id. (quoting Fed. Trade Comm’n v. Flotill Prods., Inc., 389 U.S. 179, 183 (1967)).

[17] Id. (quoting Pub. Serv. Comm’n of N.Y. v. Fed. Power Comm’n, 543 F.2d 757, 776 (D.C. Cir. 1974)).

[18] 42 U.S.C § 7171(c) (describing the duties and responsibilities of the Chairman as follows:  “The Chairman shall be responsible on behalf of the Commission for the executive and administrative operation of the Commission, including functions of the Commission with respect to (1) the appointment and employment of hearing examiners in accordance with the provisions of Title 5, (2) the selection, appointment, and fixing of the compensation of such personnel as he deems necessary, including an executive director, (3) the supervision of personnel employed by or assigned to the Commission, except that each member of the Commission may select and supervise personnel for his personal staff, (4) the distribution of business among personnel and among administrative units of the Commission, and (5) the procurement of services of experts and consultants in accordance with section 3109 of Title 5.”) (emphasis added).  Cf. Div. of Power & Responsibilities Between the Chairperson of the Chem. Safety & Hazard Investigation Bd. & the Bd. As A Whole, 24 U.S. Op. Off. Legal Counsel 102 (2000) (“We believe that, under the Act and general principles governing the operation of boards, the day-to-day administration of Board matters and execution of Board policies are the responsibilities of the chairperson, subject to Board oversight, while substantive policymaking and regulatory authority is vested in the Board as a whole.  In disputes over the allocation of authority in specific instances, the Board’s decision controls, as long as it is not arbitrary or unreasonable.”); This Decision to the Equal Emp. Opportunity Comm’n (EEOC) is in Response to a Request by Three Commissioners of EEOC for Our Interpretation of That Portion of Section 705(a) of the Civil Rights Act of 1964, As Amended, 42 U.S.C. 2000a-4(a), Which in Establishing EEOC Provides, Quoting from the Code[], B-167015, Comp. Gen., at P 1 (Sept. 19, 1974) (“Section 705(A) of [the] Civil Rights Act, which vests responsibility for administrative operations of Equal Employment Opportunity Commission (EEOC), in the Commission Chairman, is analogous to provisions in several [reorganization] plans which assign administrative responsibilities to Chairmen of independent Commissions.  Since background of these reorganization plans, which seems applicable under section 705(A), indicates generally that such provisions are not intended to supersede or diminish substantive powers of full commissions, EEOC Chairman’s exercise of administrative functions is subject to general policies and directives of [the] full Commission and cannot derogate from substantive responsibilities of [the] full Commission”) (emphasis added).

[19] See Pub. Serv. Comm’n of State of N.Y. v. Fed. Power Comm’n, 543 F.2d at 776 (“Only as an entity can the Commission formulate valid original decisions; by the same token, only in that character can it fashion new decisions remaking those which it has already promulgated.  Collective action is prerequisite to any alteration of a preexisting order, whether a grant or denial of rehearing, or a total abrogation or partial modification of that order.”).  Cf. W. Deptford Energy, LLC v. FERC, 766 F.3d 10, 25 (D.C. Cir. 2014) (recognizing that a court “need not—and indeed cannot—consider ‘appellate counsel’s post hoc rationalizations’ for Commission action”) (quoting Me. Pub. Utils. Comm’n v. FERC, 625 F.3d 754, 759 (D.C. Cir. 2010)); N.C. Utils. Comm’n v. FERC, 42 F.3d 659, 663 (D.C. Cir. 1994) (explaining that a “court cannot accept appellate counsel’s post hoc rationalization of an agency decision” and  “[t]he Commission’s decision ‘must be upheld, if at all, on the basis articulated by the agency itself’”) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (State Farm)).

[20] 16 U.S.C. § 824d(g).

[21] See Pub. Citizen, Inc. v. FERC, 839 F.3d at 1172 (holding that “FERC’s deadlock does not constitute agency action, and the Notices describing the effects of the deadlock are not reviewable orders under the FPA.”) (footnotes omitted).

[22] 16 U.S.C. § 824d(g)(1).

[23] Id. § 824d(d).

[24] Id. § 824d(g)(1).

[25] Id. § 824d(g)(1)(A).

[26] Id. § 825l(a).

[27] Id. § 824d(g)(2).

[28] Id. § 824d(g)(1)(A).

[29] Id. § 825l(b).

[30] Id. § 824d(g)(2).

[31] See S. Rep. 115-278, at 2 (2018) (“The purpose of S. 186 is to amend the [FPA] to provide that any inaction by the Federal Energy Regulatory Commission . . . that allows a rate change to go into effect shall be treated as an order by the Commission for purposes of rehearing and court review.”) (emphasis added); see also 16 U.S.C. § 824d(g)(1)(A) (providing that the failure to issue an order due to a deadlock vote is “considered to be an order issued by the Commission accepting the change for purposes of section 825l(a) of this title”) (emphasis added); id. § 824d(g)(2) (“If, pursuant to this subsection, a person seeks a rehearing under section 825l(a) of this title, and the Commission fails to act on the merits of the rehearing request by the date that is 30 days after the date of the rehearing request because the Commissioners are divided two against two, as a result of vacancy, incapacity, or recusal on the Commission, or if the Commission lacks a quorum, such person may appeal under section 825l(b) of this title.”); id. § 825l(b) (“Any party to a proceeding under this chapter aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia, by filing in such court, within sixty days after the order of the Commission upon the application for rehearing, a written petition praying that the order of the Commission be modified or set aside in whole or in part.”).

[32] 16 U.S.C.  § 824d(g)(1)(B).

[33] Solicitor’s Office Br. 51-52.

[34] See Midcontinent Indep. Sys. Operator, Inc., 180 FERC ¶ 61,040 (2022) (attaching a joint statement by Chairman Glick, Commissioner Clements, Commissioner Christie and Commissioner Phillips in a proceeding where the fifth Commissioner, Commissioner Danly, voted to approve the order without a separate statement).

[35] Californians for Renewable Energy v. Cal. Indep. Sys. Operator Corp., 175 FERC ¶ 61,213, at P 13 (2021) (citations omitted) (emphasis added) (voting commissioners consist of Chairman Glick, Commissioner Chatterjee, Commissioner Danly, Commissioner Clements and Commissioner Christie).

[36] PJM Interconnection, L.L.C., 180 FERC ¶ 61,051, at P 106 (2022) (citing
42 U.S.C. § 7171(e); see Entergy Servs., Inc., 119 FERC ¶ 61,187, at P 52 n.44 (2007), order on reh’g, 122 FERC ¶ 61,216 (2008) (collecting cases for the proposition that the Commission speaks through its orders, which are issued following a majority vote); but see 16 U.S.C. § 824d(g) (providing procedures for lack of quorum in matters under FPA section 205(d), 16 U.S.C. § 824d(d)) (citations and footnotes omitted).  I pause to note that I dissented from the cited proceeding because I objected to the process by which the proceeding had come before the Commission and also disagreed on the merits.  Id. (Danly, Comm’r, dissenting at P 2).  In that proceeding, the FERC Solicitor’s Office was directed by the Chairman to seek a voluntary remand of orders that were approved by the Commission without the knowledge or acquiescence of the other Commissioners, which at least violated longstanding Commission practice and may have been unlawful.  Id. (Danly, Comm’r, dissenting at P 2).

[37] See, e.g., Rockies Express Pipeline LLC, 172 FERC ¶ 61,279, at P 32 (2020) (“However, as the Commission recently explained to the bankruptcy court in the Ultra bankruptcy proceeding, the Commission is a deliberative body that speaks through its orders: the Commission cannot take a position on the merits of a public interest inquiry in a bankruptcy proceeding without first examining the relevant evidence and issuing an order based on that evidence.”) (citation omitted); Jordan Cove Energy Project L.P., 171 FERC ¶ 61,136, at P 9 (2020) (“The Commission, an independent agency that consists of up to five members, acts through its written orders, which are issued following a favorable vote of the majority.”) (citations omitted); MidAmerican Energy Holdings Co., 118 FERC ¶ 61,003, at P 18 n.45 (2007) (“The Commission, a five-member agency . . . , acts through its written orders . . . , which are ‘issued’ following a favorable vote of the majority. . . .  Phrased differently, in the absence of such orders, including before it has issued such orders, the Commission cannot be said to have acted.”) (internal citations omitted); Fraser Papers, Inc., 83 FERC ¶ 61,129, at 61,575 n.12 (1998) (“The Commission speaks through its issued orders, which must stand or fall on the evidence, application of pertinent statutes and regulations, and reasoning contained therein.”); Wis. Valley Improvement Co., 80 FERC ¶ 61,054, at 61,164 n.19 (1997) (same); Indianapolis Power & Light Co., 48 FERC ¶ 61,040, at 61,203 (1989) (“The Commission speaks through its orders.”) (citations omitted); N. Nat. Gas Co.., 31 FERC ¶ 61,011, at 61,022 (1985) (“Without question, the Commission speaks through its decisions and orders.”).

[38] See, e.g., Solicitor’s Office Br. 51-52 (“[T]he Court’s review should evaluate whether the statements provide a rationale for accepting the rate sufficient to meet the APA’s standards of review, which are embedded in [FPA] [s]ections 205(g) and 313(b). . . . [T]he most natural basis for that review is the Commissioner statements that support ‘accepting the [rate] change’ that has now become the filed rate, although that does not preclude the Court from also considering the statements of other Commissioners, as it would in reviewing a typical Commission order.”).

[39] See Testimony of James Danly, General Counsel of the Federal Energy Regulatory Commission Before the United States Senate Committee on Energy & Natural Resources Subcommittee on Energy (Oct. 3, 2017), S. Rep. 115-278 at 7-8 (“[E]ven if a Court of Appeals accepted the petition, the Court would almost certainly remand the case back to the Commission for further adjudication.  When sitting in review of agency action, Courts of Appeals review the evidentiary record compiled below and the reasoning the agency employed–as reflected in its orders–to support its decision based on that record.  In the case of a serial 2–2 split, no orders would issue and such a review would be impossible.  Remand would appear to be the Court’s only option.”).

[40] Nothing in the Fair RATES Act or its legislative history suggests that the individual statements by commissioners were intended to be used for anything other than to further transparency and encourage an attempt to reach common ground among commissioners.  See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (recognizing that Congress “‘says in a statute what it means and means in a statute what it says there’”) (citations omitted); S. Rep. 115-278 at 3 (“Having the benefit of these statements may discourage ties by highlighting more precisely the reasoning that leads each Commissioner to his or her views and, consequently, to enable the fashioning of an order that could attract a majority vote.”).

[41] Cf. ASARCO, Inc. v. FERC, 777 F.2d 764, 774 (D.C. Cir. 1985) (“In light of the clear text of the statute, we feel no compulsion to assign a purpose to the rule Congress prescribed, but one comes readily to mind.  A mandatory petition-for-rehearing requirement, with or without the additional requirement of raising the very objection urged on appeal, is virtually unheard-of, but both requirements happen to exist in all three of the major statutes administered by FERC.  See, in addition to § 19 of the NGA, 15 U.S.C. § 717r, § 506 of the NGPA, 15 U.S.C. § 3416, and § 313 of the Federal Power Act, 16 U.S.C. § 825l.”).

[42] See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (“[T]he requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position.  An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books.”) (emphasis in original) (citation omitted); State Farm, 463 U.S. at 43 (requiring agencies to “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made”’) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 

[43] Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 468 (2001) (citations omitted).

[44] See SEC v. Chenery Corp., 318 U.S. 80, 95 (1943) (Chenery) (“We merely hold that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”); id. at 88 (explaining that the Court would “confin[e] [its] review to a judgment upon the validity of the grounds upon which the Commission itself based its action . . . .) (citation omitted); id. (“If an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.”); id. (“For purposes of affirming no less than reversing its orders, an appellate court cannot intrude upon the domain which Congress has exclusively entrusted to an administrative agency.”).

[45] See State Farm, 463 U.S. at 43.

[46] See supra note 9.

[47] Jane Austen, Persuasion 16 (Gillian Beer ed., Penguin Classics 1998).

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