Central Hudson Gas & Electric Corporation v. Federal Energy Regulatory Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2024 Decided May 27, 2025
No. 21-1256
CENTRAL HUDSON GAS & ELECTRIC CORPORATION, ET AL.,
PETITIONERS
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
ALLIANCE FOR CLEAN ENERGY - NEW YORK, ET AL.,
INTERVENORS
Consolidated with 21-1257
On Petitions for Review of Orders
of the Federal Energy Regulatory Commission
Jason B. Tompkins argued the cause for petitioners. With
him on the joint briefs were Paul A. Colbert, Andrew W.
Tunnell, Lyle D. Larson, Abigail C. Fox, and Susan J.
LoFrumento.
William M. Keyser argued the cause for intervenors for
petitioners. With him on the joint brief were Steven M. Nadel,

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Karen Bruni, and Gary E. Guy. Stacey Burbure and Johanna
S. Dennehy entered appearances.
Jason T. Perkins, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. With him on
the brief were Matthew R. Christiansen, General Counsel, and
Robert H. Solomon, Solicitor.
Scott H. Strauss argued the cause for intervenor for
respondent New York Public Service Commission. With him
on the brief were Peter J. Hopkins, Lauren L. Springett, and
John J. Sipos.
Gabriel L. Tabak argued the cause for intervenors for
respondent America Clean Power Association, et al. With him
on the brief were Bruce A. Grabow, Jennifer Brough, and
David B. Johnson.
Before: KATSAS, WALKER, and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARCIA.
GARCIA, Circuit Judge: Petitioners are the owners of New
York’s electric-transmission grid. They want—but currently
lack—the option to finance the upgrades that are sometimes
required when new power sources connect to their grid.
Investing in those upgrades would allow the transmission
owners to raise the rates they charge and earn a return on those
new investments. The owners sought to change the rules that
prohibit owner upgrade funding, but the Federal Energy
Regulatory Commission denied their requests. Because the
Commission acted reasonably, we deny the owners’ petitions
for review.

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I
The Federal Power Act “obligates FERC to oversee all
prices” for the interstate transmission of electric energy and
“all rules and practices affecting such prices.” FERC v. Elec.
Power Supply Ass’n, 577 U.S. 260, 266 (2016). Utilities must
file “tariffs” with the Commission reflecting the rates they
charge and the related rules. Hecate Energy Greene Cnty. 3
LLC v. FERC, 72 F.4th 1307, 1309–10 (D.C. Cir. 2023).
This case concerns the tariff that covers the New York
state electricity grid. That grid is operated (but not owned) by
the aptly named New York Independent System Operator
(NYISO). Id. The relevant tariff, filed by NYISO, is known
as the Open Access Transmission Tariff (OATT).
The OATT specifies the rates that transmission owners
may charge. See id. It also addresses funding for grid
upgrades. Id. at 1310–11. When new power sources come
online, they must be connected to the grid. Often, the grid
needs updates to accommodate the power influx generated by
these new connections. See Am. Clean Power Ass’n v. FERC,
54 F.4th 722, 723–24 (D.C. Cir. 2022). The OATT allows the
connecting energy generator to finance construction and
installation of the upgrade. The generator “then convey[s] the
[upgrade] to the relevant transmission owner[] to own, operate,
and maintain.” J.A. 793 ¶ 4. The transmission owners
themselves, however, cannot fund the upgrade.
The six petitioners in this case—utility companies that
each own a portion of the New York transmission grid—object
to this arrangement. If the transmission owners could finance
interconnection upgrades, then FERC’s ratemaking rules
would allow them to charge customers higher rates that permit
a return on those new investments. But because the OATT
prevents the owners from making the initial investment, the
owners cannot raise their rates to reflect the return they might

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have earned. See J.A. 793 ¶ 5. The owners contend that the
current rules force them to bear uncompensated regulatory,
cybersecurity, environmental, and operational risks associated
with owning, operating, and maintaining the upgrades that
others fund.
The Federal Power Act provides public utilities two means
to revise FERC-approved rates and rules. First, Section 205
allows utilities to unilaterally file for changes to their rates.
FERC must approve the proposed rates so long as they are “just
and reasonable.” 16 U.S.C. § 824d(a). Second, Section 206
allows any entity (not just a utility) to challenge existing rates
by claiming they are “unjust, unreasonable, unduly
discriminatory or preferential.” 16 U.S.C. § 824e(a).
On April 9, 2021, the transmission owners filed two
petitions with FERC. They invoked Sections 205 and 206 and
requested that FERC amend the OATT to give them the option
to fund interconnection upgrades and earn a return on those
capital investments. On September 3, 2021, FERC rejected the
Section 205 filing. FERC found that the owners’ agreement
with NYISO limited their Section 205 rights. In FERC’s view,
the agreement prevented the owners from filing for a rule
change that would allow them to make new investments.
FERC dismissed the Section 206 complaint on the same day.
FERC concluded “that the [owners] failed to satisfy their
burden” of “demonstrat[ing] that the existing [funding
mechanism] is unjust, unreasonable, unduly discriminatory, or
preferential.” J.A. 677 ¶ 21.
The owners filed requests for rehearing on October 4,
2021. Because FERC did not respond to the rehearing requests
within thirty days, they were deemed denied by operation of
law on November 4, 2021. On March 24, 2022—after the
owners had filed for review with this court—FERC issued a
new order, which modified its original orders and responded to
the issues raised in the owners’ requests for rehearing. Per

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Evergy Kansas Central, Inc. v. FERC, 77 F.4th 1050, 1055–56
(D.C. Cir. 2023), we have jurisdiction over both the original
orders and the rehearing order, and we will consider arguments
raised by FERC in both sets of orders.
II
FERC’s orders are subject to “arbitrary and capricious”
review. Elec. Power Supply Ass’n, 577 U.S. at 292 (quotation
omitted). We ask if FERC “has examined the relevant
considerations and articulated a satisfactory explanation for its
action, including a rational connection between the facts found
and the choice made.” Id. (cleaned up).1
A
FERC properly dismissed the transmission owners’
Section 205 filing.
Section 205 would ordinarily empower the owners to
adjust the OATT’s rules by filing directly with FERC. The
owners, however, are members of NYISO and signed a
contract that governs their relationship with NYISO. When the
owners freely entered that contract, they also agreed to
relinquish their baseline Section 205 filing rights. See NYISO-
TO Agreement § 3.03. Under the agreement, the NYISO
Board and Management Committee must first review and
approve most Section 205–type filings seeking to change the
NYISO tariff. Id. The owners retained only those Section 205
filing rights spelled out in a narrow set of exceptions. The sole
1 With respect to our review of FERC’s Section 205 orders, the
parties filed letters under Federal Rule of Appellate Procedure 28(j)
debating whether FERC’s interpretation of the contract between the
owners and NYISO ought to receive deference. We need not address
that dispute, as we find that FERC’s interpretation was correct
irrespective of any additional deference that might be afforded to its
interpretation of contracts.

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exception that could justify the owners’ filing here appears in
Section 3.10(a) of the contract. That provision reserves an
owner’s right “unilaterally to file pursuant to Section 205 . . .
to recover” (1) “all of [their] reasonably incurred costs, plus”
(2) “a reasonable return on investment related to services under
the [tariff].” Id. § 3.10(a).
The language of Section 3.10(a) mirrors the basic equation
that FERC uses to set rates: FERC generally adds (1) “all
expenses incurred,” plus (2) “a reasonable return on capital
invested.” Pub. Serv. Co. of N.M. v. FERC, 653 F.2d 681, 683
(D.C. Cir. 1981); see also Jersey Cent. Power & Light Co. v.
FERC, 810 F.2d 1168, 1172 (D.C. Cir. 1987) (en banc). That
mirroring makes sense, given the purpose Section 3.10(a) was
evidently designed to serve: Within a contract that generally
relinquished Section 205 rights, the transmission owners kept
their ability to challenge basic inaccuracies in the calculation
of their rate. Thus, if an owner believes its FERC-approved
rate does not accurately capture its “incurred costs” or is not
supplying an appropriate “return on investment,” an owner
need not secure the NYISO Board’s and Management
Committee’s approval before pursuing relief.
The filing before us, however, did not seek to correct these
two basic sorts of inaccuracies, and therefore does not fall
within either of Section 3.10(a)’s prongs.
First, the owners’ filing did not aim to recover “reasonably
incurred costs.” As FERC explained, the “costs” prong of
Section 3.10(a) allows the owners only to “file to recover their
incurred costs recoverable in transmission rates.” J.A. 805–06
¶ 28; see also J.A. 714 ¶ 22. The owners concede that they
already recover all operating expenses associated with running
the transmission upgrades, and they do not identify any
expense they have actually incurred that is uncompensated.
Instead, the owners argue that the rules governing upgrade
funding should be changed to compensate them for “risks”

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associated with owning and operating the upgrades. That
framing illuminates the owners’ true goal: They hope not to
recoup costs already “incurred,” but to anticipatorily recover
potential costs that have not yet materialized.
As FERC explained, its approach to the “costs” prong of
Section 3.10(a) “gives effect to” the “return on investment”
prong. J.A. 805–06 ¶ 28. The “regulatory, reliability,
cybersecurity, environmental, and operational risks that the
[owners] state they face . . . are not costs under [the] provision,”
but instead are “the types of risks that . . . traditionally are”
accounted for in calculating a utility’s appropriate return on
capital invested. J.A. 805 ¶ 27. In short, prospective risks are
not “incurred costs” for purposes of either FERC’s ratemaking
calculations or Section 3.10(a).
On appeal, the owners attempt to rebrand their “risks”
argument by suggesting that these risks increase their “cost of
capital,” and that the cost of capital should be treated as an
“incurred cost” under Section 3.10(a). Petitioners’ Brief 37.
The owners, however, identify no authority referring to the cost
of capital as an “incurred cost.” Nor, likely, could they. The
cost of capital is not an expense that the owners shoulder by
virtue of operating the transmission grid. Instead, the “cost of
capital” refers to the rate of return required to attract capital
investments for a project. See Tenn. Gas Pipeline Co. v. FERC,
926 F.2d 1206, 1208 (D.C. Cir. 1991) (“The cost of capital is
the minimum rate of return necessary to attract capital to an
investment.” (quoting A. Lawrence Kolbe et al., The Cost of
Capital: Estimating the Rate of Return for Public Utilities 13
(1984)). Thus, as FERC noted, appropriately compensating for
the cost of capital is exactly what the “return on investment”
calculation aims to do. Neither “risks,” nor the “cost of capital”
that reflects those risks, are relevant to identifying a utility’s
incurred costs. See, e.g., id. (“[T]he Commission endeavors to
set a utility’s rate of return on equity at its cost of equity

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capital.”); see also El Paso Nat. Gas Co., 145 FERC ¶ 61,040,
at P 693 (2013); United Airlines, Inc. v. FERC, 827 F.3d 122,
130 (D.C. Cir. 2016).
That leaves the second prong of Section 3.10(a), which
permits filings seeking to recover a “reasonable return on
investment.” As discussed, FERC acknowledges that “risks”
are “traditionally” considered in its ratemaking process when
calculating a utility’s appropriate return on capital invested.
Specifically, “risks” are considered when calculating “the
appropriate base [return on equity].” J.A. 805 ¶ 27. As the
Commission describes elsewhere in its rehearing order, the rate
of return is set in part by looking at the risks owners face in
operating their enterprise. J.A. 834–35 ¶ 67. The more risks a
utility bears—including risks from system upgrades—the
higher the rate of return. See id. Once the “appropriate” rate
of return is set, it is multiplied by “the rate base,” J.A. 805 ¶ 27,
which represents the amount of “capital” that the utility has
“invested,” Pub. Serv. Co. of N.M., 653 F.2d at 683.
FERC accepts that, under the second prong of Section
3.10(a), the owners could challenge a rate of return that
inadequately compensated investments already made. See J.A.
836 ¶ 69. But the filing before us does not attempt either to
change the rate of return applied to existing investments or to
ensure that capital already invested is properly counted in the
rate base. Instead, the owners filed to change the rules so that
they could make new investments in interconnection upgrades
and add those new capital investments to their rate base. As
the owners’ filing stated, they sought “to amend the [tariff’s]
Existing Funding Approach,” so they could gain “the
opportunity to fund the costs of [system upgrades] and thereby
earn [the associated] return.” J.A. 3. But as FERC points out,
the owners retained only their “right to file” to recover an
appropriate “return on investment,” not a right to change the

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rules of the road to allow them to make a new category of
“future investment.” J.A. 806 ¶ 28 n.73.
In their opening brief, the owners’ argument on this prong
of Section 3.10(a) consists entirely of a conclusory statement
that their filing should be construed “as an attempt to earn a
‘reasonable return’ (by being allowed to fund the investment in
System Upgrades).” Petitioners’ Brief 37. That statement is
nonresponsive to FERC’s conclusion—with which we agree—
that Section 3.10(a) encompasses filings that seek to recover a
reasonable return on existing investments and not the owners’
very different request to change the rules to allow for wholly
new investments.
In essence, the owners’ filing attempts to enact a major
policy shift—altering the rules relevant to every NYISO grid
upgrade required by a new interconnection, with the intent of
affecting region-wide rates and incentives. A filing demanding
such a substantial policy change is a poor fit for Section
3.10(a), which carved a narrow exception into a contract that
otherwise requires the transmission owners to receive
permission from NYISO before seeking alterations to the
OATT. Under the terms of the owners’ agreement with
NYISO, NYISO itself must first endorse the owners’ proposal
to fundamentally revise the tariff. See J.A. 806 ¶ 29.
The owners’ remaining arguments are unavailing. The
owners argue that FERC ignored relevant evidence verifying
that current rates do not properly compensate them for risks
they face. See Petitioners’ Brief 40. But absent a showing that
the risks are “incurred costs” or otherwise within the terms of
Section 3.10(a), that sort of evidence is irrelevant to the
question whether this Section 205 filing was procedurally
proper. The owners further argue that FERC, through its
reading of Section 3.10(a), has effectively prohibited them
from filing under Section 205, which FERC cannot lawfully
do. See Petitioners’ Brief 38–39. Here, however, it was the

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owners who chose to cede their rights by contract, as our
precedent permits. See Atl. City Elec. Co. v. FERC, 295 F.3d
1, 10–11 (D.C. Cir. 2002); Me. Pub. Utils. Comm’n v. FERC,
454 F.3d 278, 283 (D.C. Cir. 2006). In evaluating the NYISO-
TO Agreement, FERC did not “abrogat[e] or modif[y]” an
“existing contract rate” to artificially limit the owners’ rights.
Wisc. Pub. Power, Inc. v. FERC, 493 F.3d 239, 271 (D.C. Cir.
2007). Instead, FERC simply interpreted the contract, and it
did so appropriately.
Finally, the owners argue that FERC’s conclusion here is
inconsistent with its finding in a later-issued order, PPL Elec.
Utils. Corp., 177 FERC ¶ 61,123 (2021), which held that other
transmission owners, governed by a different contract, had not
waived their Section 205 rights and so could submit a similar
filing. But the rights-reservation provision at issue in PPL was
materially different from the one here. That provision allowed
transmission owners to file to “establish” a “transmission
revenue requirement for services provided . . . with respect to
[their] Transmission Facilities.” Id. at P 34. FERC found that,
because the contract defined network upgrades as
“transmission facilities,” the contract permitted requests for
rule changes to “establish” a new source of revenue stemming
from network upgrades. Id. at P 35. That FERC reached a
different conclusion under that differently worded provision
does not suggest any arbitrary decision making.
B
The transmission owners are no more successful in
challenging FERC’s dismissal of their Section 206 complaint.
Section 206 of the Federal Power Act permits an entity to
request a rate alteration because the existing rate is “unjust,
unreasonable, unduly discriminatory or preferential.” 16
U.S.C. § 824e(a). In evaluating the “unjust[ness]” of the
challenged rate, we focus on the “total effect” of the rate

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selected, not on isolated “infirmities.” See Fed. Power
Comm’n v. Hope Nat. Gas Co., 320 U.S. 591, 602 (1944). We
presume the existing rate is valid and place a “heavy burden”
on the challenger to demonstrate it is not. Id.; see also 16
U.S.C. § 824e(b). Here, FERC reasonably determined that the
owners failed to meet that burden.
The owners argue that it is “unjust” and “unreasonable” to
prevent them from funding grid upgrades. The owners claim
that, as a result, they must bear uncompensated risks associated
with owning the upgrades. See Petitioners’ Brief 17–18. They
claim they may face difficulty attracting capital because they
cannot earn returns on this growing portion of their assets. Id.
at 43–45. And they claim that the current rate is
“discriminatory” because transmission owners in other regions
can fund system upgrades, and so are more attractive to
investors. Id. at 46–47.
The Commission fully and reasonably addressed these
arguments. The Commission acknowledged that some risks
accompany ownership and operation of the upgrades. But it
concluded that the owners mustered no evidence showing those
risks go uncompensated. See J.A. 694 ¶ 58; J.A. 831–32 ¶¶ 63–
65. FERC consistently explained that its ratemaking approach
includes an “enterprise-wide” risk calculation that
compensates the owners for any such risks they face. J.A. 696
¶ 60; J.A. 821–22 ¶ 49; J.A. 834–36 ¶¶ 67–69; see also Hope,
320 U.S. at 603 (mandating that “the return to the equity owner
should be commensurate with returns on investments in other
enterprises having corresponding risks”).
The types of risks the owners described are not unique;
these are “general risks faced by utilities” in operating their
grids. J.A. 831 ¶ 63. The Commission already calculates each
utility’s return on equity “based on the risk profile of the
enterprise as a whole,” and that return is “subject to potential
adjustment if those enterprise-wide risks change.” J.A. 834–

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35 ¶ 67. The owners cited purportedly contrary expert
testimony, but that expert “provide[d] evidence” only that
enterprise-wide risks existed, “not that the current rates
charged . . . are not sufficient.” J.A. 831 ¶ 63. FERC therefore
concluded that the owners “failed to demonstrate that their
currently approved rates of return, calculated for each
enterprise as a whole, do not consider enterprise-wide risks of
investing in the entire transmission system, including owning,
operating, and maintaining System Upgrades funded by
interconnection customers.” J.A. 835 ¶ 68; see also J.A. 837–
38 ¶ 71 (similar).
Similarly, FERC adequately explained that the owners
offered no proof of difficulty or disadvantage they faced in
attracting capital. J.A. 831–32 ¶¶ 63–65; J.A. 695–97 ¶ 60. For
example, they provided no “economic evidence of a systemic
problem,” such as a “report[] to investors” on the additional
risks they faced or “evidence that rating agencies have assigned
transmission owners to higher risk categories based on
concerns about the amount of System Upgrades on the
transmission system.” J.A. 831–32 ¶¶ 63–64; J.A. 697 ¶ 61.
The owners instead relied on “speculati[on]” that these impacts
could occur, which the Commission deemed “insufficient to
satisfy” their Section 206 burden. J.A. 832 ¶ 64.
FERC also reasonably rejected the owners’ argument that
the funding rules are “discriminatory” under Section 206.
Although other regional operators’ tariffs permit grid owners
to fund upgrades, FERC explained that it has long allowed
different regional transmission organizations to follow
different rules, in recognition of regional variations including
potential differences in “geographic size and location.” J.A.
833 ¶ 66. FERC’s orders conclude that the mere “existence”
of a rate in one region “does not on its face make it unduly
discriminatory for that same rate to not be available in another
. . . region.” Id. Additional evidence would be required to

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show discrimination. And because, as FERC’s orders
illustrated, the owners offered no further support for their
claims—and on review identify no relevant evidence
overlooked by FERC—they also failed to carry their burden on
this point. See id.
On review, the owners argue in two ways that they did not
need to tangibly demonstrate the claimed unjustness and
discrimination.2 First, they rely on cases explaining that FERC
is not always required to provide “empirical evidence” to
support the policy choices it makes in Section 206 proceedings.
See S.C. Pub. Serv. Auth. v. FERC, 762 F.3d 41, 64–68 (D.C.
Cir. 2014). But nothing in those cases, nor any others we can
identify, suggests that it is arbitrary or capricious for the agency
to ask a party filing a Section 206 complaint to produce actual
evidence supporting its claims that an existing rate is unjust or
unreasonable. Instead, we have previously affirmed the
Commission’s orders denying Section 206 petitions where the
complaining party “failed to support it[s arguments] with
sufficient real-world evidence,” La. Pub. Serv. Comm’n v.
FERC, 860 F.3d 691, 695 (D.C. Cir. 2017), or did not “offer
any evidence (beyond speculation)” to demonstrate the harms
it asserted, Potomac Elec. Power Co. v. FERC, 210 F.3d 403,
409 (D.C. Cir. 2000). In these proceedings, the transmission
2 The owners also cursorily argue that FERC overlooked
evidence in the record supporting their view. They contend that
FERC ignored evidence and point to expert testimony claiming—
without support—that FERC’s enterprise-wide risk calculation
accounts only for risks faced by those pieces of the enterprise
included in the rate base. See Petitioners’ Brief 19 & n.42; J.A. 649–
52. But FERC’s order answered those claims. It described that “the
Commission calculates a utility’s [return on equity] based on the risk
profile of the enterprise as a whole.” J.A. 834 ¶ 67. And it dismissed
the testimony as failing to offer evidence demonstrating that the
enterprise-wide risk calculation did not compensate for the described
risks. See J.A. 831 ¶ 63.

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owners did not show it was unreasonable for the Commission
to require that the owners support their claims with evidence.
See also Pub. Serv. Elec. & Gas Co. v. FERC, 989 F.3d 10, 13
(D.C. Cir. 2021) (“The proponent of the rate change bears the
burden of proof . . . . Section 206 therefore mandates a two-
step procedure whereby the Commission must make an explicit
finding that the existing rate is unlawful before setting a new
rate . . . . [W]ithout a showing that the existing rate is unlawful,
the Commission has no authority to impose a new
rate.” (internal quotations omitted)).
Second, the owners rely heavily on this court’s decision in
Ameren Services Co. v. FERC, 880 F.3d 571 (D.C. Cir. 2018).
That litigation also revolved around the choice between
generator or owner funding of interconnection upgrades. See
id. at 573; 579–81. Those FERC orders twice reached our
court—once in Ameren and again in a follow-on case. But in
both cases we did not address the merits of the upgrade-funding
dispute; we merely remanded for FERC to adequately address
objections in the record. See id. at 582; Am. Clean Power Plan
Ass’n, 54 F.4th at 723.
The owners overread Ameren, asserting that it “rejected”
the “argument that risks/costs associated with System
Upgrades are somehow already incorporated in” transmission
owners’ returns. Petitioners’ Brief 51. But Ameren held only
that FERC could not assume that conclusion without
explanation. See 880 F.3d at 580. Ameren did not require any
particular outcome, nor does it relieve the New York
transmission owners of their burden to produce relevant
evidence in this proceeding. Here, unlike in the Ameren orders,
FERC addressed the transmission owners’ argument that they
are forced to bear uncompensated risks, explained that those
risks were in fact compensated through FERC’s existing
approach, and concluded the owners did not offer evidence to

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sustain their contrary assertions. See J.A. 819–20 ¶ 46
(distinguishing Ameren on this basis).
FERC properly concluded that these owners, on this
record, did not carry their burden under Section 206. The
validity of the Commission’s orders necessarily turns on the
specific evidence (or lack thereof) presented in these
proceedings. Nothing in FERC’s orders appears to foreclose a
different outcome on a different record, nor does this opinion
foreclose that possibility.3
C
Finally, the transmission owners have not shown that
FERC’s order accomplished an unconstitutional taking.
Though a rate may enact a taking where it is sufficiently unjust
and therefore confiscatory, see Hope, 320 U.S. at 601; Jersey
Cent. Power, 810 F.2d at 1175, as we have explained, the
owners could not make a threshold showing of unjustness.
III
The petitions for review are denied.
So ordered.
3 The owners also suggest that FERC failed to discuss and
distinguish Federal Power Commission v. Hope Natural Gas Co.,
320 U.S. 591 (1944), and Bluefield Waterworks & Improvement Co.
v. Public Service Commission of West Virginia, 262 U.S. 679 (1923).
But FERC thoroughly discussed and persuasively distinguished
these cases, too, explaining that they related to instances where an
entity had already made an upfront capital investment and was
denied the opportunity to earn a return on that investment.

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