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08/17/81 Federal Energy Regulatory v. Federal Energy Regulatory

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


August 17, 1981

UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT ILLINOIS CITIES OF BETHANY, ET AL., PETITIONERS

v.

FEDERAL ENERGY REGULATORY COMMISSION, RESPONDENT CENTRAL ILLINOIS PUBLIC SERVICE CO., INTERVENOR 1981.CDC.216 DATE DECIDED: AUGUST 17, 1981

Before WRIGHT,* WALD and MIKVA, Circuit Judges.

Supplemental Opinion on Rehearing October 30, 1981. Opinion as Modified on Rehearing October 30, 1981.

Petition for Review of an Order of the Federal Energy Regulatory commission.

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WALD

ORDER

Upon consideration of the petitions for rehearing filed by Respondent, Federal Energy Regulatory Commission, and Intervenor, Central Illinois Public Service Co., and responses thereto, it is

ORDERED, by the Court, that petitions for rehearing are granted and Section III A of our opinion is amended to reflect the views set out in the supplemental opinion.

Opinion for the Court filed by Circuit Judge WALD.

Our original opinion in this case was issued on August 17, 1981. *fn1 Pursuant to the Federal Rules of Appellate Procedure 35 and 40 and local rule 14, Respondent, the Federal Energy Regulatory Commission ("FERC" or "Commission"), and Intervenor, Central Illinois Public Service Company ("CIPSCO" or "Company"), with the support of the United States, *fn2 have petitioned for rehearing, requesting that Section III A of our opinion be vacated. We hereby grant the request for rehearing and vacate those parts of Section III A which are inconsistent with this supplemental opinion. *fn3

Section III A examined Illinois Cities of Bethany's ("Cities") allegation that a wholesale electric power tariff, filed by CIPSCO under section 205 of the Federal Power Act, 16 U.S.C. § 824d, and approved by FERC, was too high in comparison with CIPSCO's retail rates. Cities, a group of CIPSCO wholesale customers, claimed that they were being price squeezed. *fn4 Relying upon a Staff study that indicated that CIPSCO's profit margin was higher for its retail services than its wholesale services, see Joint Appendix at 16, 412, an Administrative Law Judge rejected Cities' claim. Id. at 345, 406-17. FERC affirmed that decision. Id. at 425. Because we read the Supreme Court's decision in Conway v. United States (510 F.2d 1264) to permit the Commission, in the interests of competition, to adjust even cost-justified differentials, we remanded "to allow the Commission, if it (found) that CIPSCO and petitioners (were) competitors, ... to reduce (CIPSCO's wholesale) rate to the higher of the "lower end of the range of reasonableness' or that needed to eliminate the price squeeze, or to justify a higher rate by reference to other factors." Illinois Cities (supra) slip op. at 24. On rehearing, however, we have determined that no price squeeze exists so as to justify invocation of the Conway doctrine. We now vacate that decision and affirm the decision of the Commission.

ANALYSIS

Our decision to remand was based upon our finding that the ALJ had erred initially in rejecting a prima facie price squeeze case *fn5 presented by Cities and subsequently in failing to determine whether CIPSCO's wholesale rate, although within the range of reasonableness, lay at the "lower end of the range of reasonableness," i.e., at a point within the range of reasonableness that would permit elimination of the price squeeze. Id. at 19, 21. Upon further reflection inspired in part by the additional information and reformulated arguments in the petitions for rehearing and the responses thereto, we now conclude that we were mistaken in ordering the remand.

The price squeeze case presented by Cities was based upon the Alcoa transfer price test. United States v. Aluminum Co. of America, 148 F.2d 416, 436-38 (2d Cir. 1945) (hereinafter Alcoa ). That test maintains that "(i)f a vertically integrated entity cannot purchase at its own wholesale rates and still realize a profit at its own retail rates, then it can be concluded that the supplier has overcharged its wholesale customers." Illinois Cities (supra) slip op. at 14.

The ALJ appears, however, to have misunderstood the appropriate transfer price test proffered. He concluded that "it would place in the hands of the party alleging discrimination the ability to create the discriminatory premises either willfully or simply through an inefficient municipal operation." J.A. 416. Thus he viewed it as requiring an inquiry into whether a vertically integrated company could realize a profit by purchasing at its own wholesale rates and selling at the retail rates of the party alleging discrimination rather than at its own retail rates. Language in our original opinion *fn6 may inadvertently have contributed further to the confusion. Thus, both respondent *fn7 and intervenor, *fn8 in their petitions for rehearing, misconstrued our initial decision as "requiring the Commission to lower wholesale electric utility rates whenever a municipal customer, competing with the utility for retail business, cannot pay the rate, and (while incurring its own costs) resell at a profit." *fn9 Properly understood, however, the transfer price test probes only whether the utility itself could buy or sell at its own prices. *fn10 As such, it is similar to the method of analysis employed in the Staff study relied upon by the ALJ *fn11 which compares the company's rate of return on sales at both the wholesale and retail level to see whether the company is subsidizing lower retail prices through higher wholesale prices in order to compete against its wholesale customers. *fn12 Both tests depend upon a proper allocation of wholesale and retail costs, and both seek to test whether there is a price discrimination *fn13 a non-cost justified differential-between wholesale and retail customers. *fn14 Thus, Cities' attempted use of the transfer price squeeze test to attack the findings of the Staff cost-of-service study is in fact not materially different from a direct attack upon the accuracy of the Staff study itself. Having acknowledged the discretion of the Commission to utilize its choice of an appropriate methodology *fn15 to prove or disprove a price discrimination, and having rejected Cities' frontal assault upon that methodology, *fn16 we should have found that Cities had failed to make out a price squeeze case. In sum, since the Staff study found that after fully allocating wholesale and retail costs the company's rate of return on wholesale sales was reasonable and indeed less than its rate of return on retail sales, there was no reason to believe that Cities was being price squeezed at all. See n.14 supra. And where no price squeeze case exists, there is no need to decide whether Conway *fn17 requires the ALJ to determine whether CIPSCO's wholesale rate, although within the range of reasonableness, lay at a point within that range where it could or should be lowered to eliminate the price squeeze. Because we erred in remanding for the Commission to consider applying Conway to this case, we vacate our earlier decision on this aspect of the case.

The Supreme Court in Conway held that although the Commission lacked jurisdiction to fix retail rates, its jurisdiction to set wholesale rates allowed it to take retail rates into consideration where wholesale customers were price squeezed by dint either of the utility company's desire to drive out retail competitors or of the interplay between federally and locally regulated rates.

The Commission must arrive at a rate level deemed by it to be just and reasonable, but in doing so it must consider the tendered allegations that the proposed rates are discriminatory and anticompetitive. *fn18

The Supreme Court upheld a decision of this court, per Leventhal, J., and observed that this court was "quite correct" in concluding:

When costs are fully allocated, both the retail rate and the proposed wholesale rate may fall within a zone of reasonableness, yet create a price squeeze between themselves. There would, at the very least, be latitude in the FPC to put wholesale rates in the lower range of the zone of reasonableness, without concern that overall results would be impaired, in view of the utility's own decision to depress certain retail revenues in order to curb the retail competition of its wholesale customers. *fn19

We read that language as permitting the Commission to adjust wholesale rates within a range of reasonableness to respond either to utility efforts to depress retail rates to meet competition, or to situations where the imperfections of regulation result in an unintended price squeeze. Since ratemaking is an inexact science, even bona fide allocations of costs between wholesale and retail operations may be imperfect or rates of return set by different regulators at the wholesale and retail levels may make it impossible for purchasing wholesalers, no matter how efficient, to compete at the retail level. In such cases, Conway acknowledges the Commission's discretion to press wholesale rates to the lower end of the zone of reasonableness. The Conway doctrine is not, however, we emphasize, designed to subsidize particular retail competitors. Rather, the doctrine allows the Commission some leeway where it finds that the process of price setting by regulation, and not the superior efficiency of the utility, might result in retail competitors being driven from the market.

Here, the requisite proof that a price squeeze existed was not forthcoming and indeed was refuted by the Staff study. When costs were fully allocated between wholesale and retail operations, CIPSCO's wholesale profit margin was both reasonable and sufficiently lower than its retail profit margin so that there was no occasion for the Commission to exercise its Conway discretion.

HOLDING

For the foregoing reasons, we vacate those parts of our initial decisions as are inconsistent with this supplemental opinion, and affirm the decision of the Commission.

In this action, eight Illinois municipalities1a seek direct review of an order of the Federal Energy Regulatory Commission ("FERC" or "Commission") approving a wholesale electric power tariff filed by Central Illinois Public Service Company ("CIPSCO" or "Company") under section 205 of the Federal Power Act, 16 U.S.C. § 824d. The petitioners, wholesale customers of CIPSCO, challenge the substantive reasonableness of the tariff, as well as the Commission's decision to refrain from investigating CIPSCO's high operation and maintenance costs. For the reasons stated below, we affirm the Commission's actions. I. THE FACTS

On December 1, 1977, CIPSCO filed tariff sheets with the Commission proposing increases in three wholesale rates: W-1, which governs sales to electric cooperatives, W-2, which covers sales to full-requirement2a municipal customers, and W-3, which applies to sales to partial-requirement3a municipal customers. Though the electric cooperatives acquiesced in the new rates,4a several of the W-2 and W-3 customers formed the Illinois Municipal Group ("petitioners" or "Cities") to protest the proposed rate increases. The Cities petitioned the Commission to intervene in the ratemaking proceeding as CIPSCO's opponent on December 27, 1977.5a Three days later the Commission issued an order accepting the Company's W-1 filing and permitting it to become effective without suspension on January 1, 1978.6a In the same order, however, the Commission conditionally accepted the Company's W-2 and W-3 tariffs pending determination of the issues raised by the Cities. The challenged rates went into effect subject to refund on January 2, 1978, following a one-day suspension.7a

Hearings were not held on the disputed issues until December, 1978.8a The presiding Administrative Law Judge issued his Initial Decision, based on the record of 77 physical exhibits and 1,337 pages of transcript as well as briefs and reply briefs submitted by both parties, on July 26, 1979.9a In his 72-page decision, the ALJ made some but not all of the adjustments to the Company's cost-of-service figures requested by the Cities and the Commission staff ("Staff"),10a upheld the Company's refusal to extend preferential rates contained in certain long-term contracts with one W-2 and one W-3 customer to the remaining customers in those rate categories; found that the Cities failed to present a prima facie case that a price squeeze inimical to the Company's wholesale customers existed; and recommended that the Commission investigate the Company's abnormally high operation and maintenance costs.

Both parties filed briefs on exceptions to the Initial Decision with the Commission. Six months later, on February 21, 1980, the Commission issued an order summarily affirming the ALJ's opinion in all but two respects.11a The Commission reversed the ALJ's recommendation of an investigation into the prudence of CIPSCO's management12a and his directive that CIPSCO be required to "flow through" its construction-related interest deductions on a current basis.13a The Cities petitioned for rehearing on twelve issues, including its contract discrimination and price squeeze arguments, eight rate base or rate of return disputes, and the Commission's refusal to investigate CIPSCO's management.14a The Commission denied this rehearing request by taking no action within the statutorily prescribed period.15a

The Cities have petitioned this court for review of the Commission's order. CIPSCO moved for and was granted leave to intervene before this court in support of the Commission's actions. II. THE ISSUES

Though the Cities preserved twelve arguments by their petition for rehearing, they present only six in this petition for direct review.16a Of those six, three were argued by one of the petitioners, the village of Rantoul, before this court in a challenge to a FERC order approving a previous CIPSCO tariff.17a This court affirmed the Commission's actions in that case in an unpublished memorandum opinion.18a Though that opinion does not bind our decision in this case,19a our review of the record in the instant proceeding gives us no cause to question the outcome in Rantoul or its applicability to this case. Accordingly, we summarily affirm the Commission in this case as to those issues decided in Rantoul, *fn20 and discuss in this opinion only those arguments presented here for the first time.

Petitioners raise three novel claims of error. They challenge first the Commission's decision to deny "price squeeze" relief to the Cities, contending that they established that a price squeeze, as defined by the Commission's regulations, existed and thus that the Commission's adoption of the ALJ's finding that no price squeeze relief was warranted lacked a substantial evidentiary basis. Secondly, they claim the Commission erred in failing to normalize the excess generating capacity created by the opening of the new Newton power plant, thereby unreasonably inflating the rate base and corresponding rate assessments. Finally, they argue that the Commission's reversal of the ALJ's recommendation that FERC investigate CIPSCO's management constituted reversible error, and they ask this court to direct the Commission to undertake the investigation. III. ANALYSIS

A. Price Squeeze

The most serious of the Cities' allegations is that the challenged rates are set too high in comparison to CIPSCO's retail rates to allow the Cities to compete with CIPSCO for retail, especially high-volume retail, *fn21 customers, and thus that FERC should have reduced those rates to "the lower end of the range of reasonableness." *fn22 The Cities trace FERC's decision not to do so to the ALJ's acceptance of faulty cost of service estimates and his reliance on an inappropriate conceptual framework for analyzing the significance of those estimates. FERC maintains that the ALJ's analysis of petitioners' price squeeze complaint was correct, and that the petitioners failed to establish a prima facie case for the existence of a price squeeze.

1. The Elements of a Prime Facie Case

Though a fixture of antitrust law since the 1945 decision in United States v. Aluminum Co. of America ("Alcoa"),23 price squeeze complaints are relatively new to the regulated industries field. FERC routinely disclaimed jurisdiction over such arguments until 1976, when the Supreme Court held that they could be considered when determining whether a rate meets the antidiscrimination requirement of section 205(b) of the Federal Power Act.24 Following that decision, FERC promulgated guidelines for dealing with price squeeze complaints. Those guidelines established the criteria necessary to make out a prima facie price squeeze case:

(1) Specification of the filing utility's retail rate schedules with which the intervening wholesale customer is unable to compete due to purchased power costs;

(2) A showing that a competitive situation exists in that the wholesale customer competes in the same market as the filing utility;

(3) A showing that the retail rates are lower than the proposed wholesale rates for comparable service;

(4) The wholesale customer's prospective rate for comparable retail service, i.e., the rate necessary to recover bulk power costs (at the proposed wholesale rate) and distribution costs; and

(5) An indication of the reduction in the wholesale rate necessary to eliminate the price squeeze alleged.25

It should be noted that unlike the ordinary situation where a party who establishes a prima facie case is, as a matter of law, entitled to relief unless the defending party rebuts the case, the establishment of a prima facie price squeeze case means only that enough has been shown to warrant inquiry into the price squeeze allegations to ascertain whether price discrimination exists. It is, the Commission assures us, merely the threshold26 which must be crossed to put the question at issue.

Petitioners claim that they established a prima facie case by comparing the wholesale rates W-2 and W-3 with the comparable27 retail rates 9 and 9-B in effect on January 2, 1978. At that time, the wholesale rates were higher than the retail rates for which petitioners would have been eligible based on their demand characteristics.28 However, on April 14, 1978, a new retail tariff went into effect,29 raising the 9 and 9-B retail rates above the W-2 and W-3 wholesale rates. Whether or not these new rates were annualized,30 the ALJ found that petitioners would have paid more for their electric power purchases during the 1978 calendar year had they paid the retail rather than the wholesale rates. Therefore, he concluded that petitioners failed to establish the third element of a prima facie case under the Commission's guidelines.31

Petitioners challenge the ALJ's reliance on the revised retail tariffs. They claim that the proper comparison is always between the wholesale and retail rates in effect on the date of implementation of the revised wholesale tariff because "CIPSCO had full discretion to wait until after a resolution of its retail rates before filing a wholesale increase."32 However, we find that the Commission had the discretion to consider the April retail rate increases when evaluating petitioners' price squeeze allegations. Petitioners overstate the utility's control over the timing of its rate increases given the inevitable regulatory process delays entailed in finalizing such rates;33 we cannot ignore that lack of control when judging the reasonableness of the ALJ's actions. Moreover, while annualizing a new rate as opposed to averaging the rates in effect weighted by their periods of incidence may in some cases lead to unacceptably unrepresentative information regarding the existence of a price squeeze,34 the ALJ's decision to annualize the increases here was not unreasonable in light of the proportion of the year they were actually in effect35 and the fact that the outcome, under the Commission's guidelines, would have been no different had the ALJ computed the costs to petitioners over the whole year based on the actual date of implementation of the new rates.36

Petitioners further challenge the ALJ's finding that the wholesale rates were lower than the retail rates by arguing that a "true comparison" of the two rates requires that the wholesale rate be compared to an "adjusted" retail rate, that is, the retail rate minus expenses associated with the costs of distribution.37 This argument is a confusing variation38 on petitioners' main argument: a frontal assault on FERC's price squeeze guidelines39 as insufficiently sensitive to price squeeze possibilities. Petitioners point out that if retail and wholesale rates are equal (thus preventing wholesale customers from making a prima facie case under the Commission's guidelines), the wholesale customers will be unable to compete with the public utility for retail customers because they will inevitably incur some distribution costs, which will require them either to lose money or to increase their retail rate above that of the public utility-the classic price squeeze situation.40 Therefore petitioners advocate utilization of the transfer-price test adhered to in many antitrust cases: "(i)f a vertically integrated entity cannot purchase at its own wholesale rates and still realize a profit by selling at its own retail rates, then it can be concluded that the supplier has overcharged its wholesale customers."41 The petitioners in another utility rate case before the Commission described the operation of this test in the electric utility context:

They argue that a utility performs three analytically distinct functions: generation, transmission and distribution. Generation and transmission are company-wide costs and do not vary with the type of customers taking the power. Distribution, on the other hand, is largely a retail cost since the municipals provide their own distribution. Thus, the cities argue that we should compare the wholesale rate for transmission and generation with the average retail rate for serving all customer classes with transmission and generation. Any disparity would be implicitly unjustified since these costs should be uniform company-wide. Consequently, the difference would show the amount of the price squeeze.42

Petitioners attempted to show that under this test a price squeeze exists here by working the transfer price analysis forwards and backwards. First, petitioners subtracted costs they claim are associated only with the distribution function from the revenues that would have been collected from them had petitioners been charged for their electricity purchases under the retail rates 9 and 9-B. The difference, according to petitioners' calculations, is less than the amounts actually collected from them under the wholesale rates.43 Petitioners claim this shows that CIPSCO charges its wholesale customers more for generation and transmission services than it does its retail customers. Secondly, petitioners applied the transfer-price test directly to show that CIPSCO could not make a profit if it owned the municipal operations, bought power from itself at its wholesale rates, distributed it through the municipal operations, and charged its customers at its prevailing retail rates.44

The ALJ rejected the Cities' first attempt at proving that they were being charged more than retailers for generation and transmission services not by rejecting individually the proposed adjustments45 but by relying on a study prepared by the Staff purporting to show the Company's comparative rate of return between its wholesale and 9 and 9-B retail customers. According to this study, the Company's profit margin was higher for its retail service.46 Accepting as accurate the study's assignment of costs,47 the ALJ concluded that the study rebutted petitioners' argument that the Company's rate differential was not justified by a difference in costs. He then went on to disparage, rather than refute, the remainder of petitioners' analysis, calling the transfer price test a

concept ... so new that one doubts if it will ever become old for it would place in the hands of the party alleging discrimination the ability to create the discriminatory premises either willfully or simply through an inefficient municipal operation.48

He concluded with the parting shot:

it is not the policy of Conway to guarantee that all costs incurred in operating a municipal system (efficiently or otherwise) should be "subsidized by its investor-owned supplier."49

The price transfer test, as set forth in Alcoa, is a legitimate means of indicating a price squeeze. FERC itself has accepted that test.50 The ALJ here, however, appears to have misunderstood the test. He concluded that "it would place in the hands of the party alleging discrimination the ability to create the discriminatory premises either willfully or simply through an inefficient municipal operation, J.A. 416, thus misinterpreting the test as requiring an inquiry into whether a vertically integrated company could realize a profit by purchasing at its own wholesale rates and selling at the retail rates of the party alleging discrimination rather than at its own retail rates. Properly understood, the transfer price test is, in fact, quite similar to the method of analysis employed by the Staff study in this case and relied upon by the ALJ to show the absence of any price discrimination.51 Both depend upon a proper allocation of wholesale and retail costs, and both seek to test whether there is price discrimination52 between wholesale and retail customers.53 Thus, to use the transfer price test to attack the findings of the Staff study seems to us to be not materially different than a direct attack upon the accuracy of the Staff study. Since we have already rejected Cities' direct attack upon the Staff study,54 and have acknowledged the agency's discretion to utilize its choice of methodology,55 this indirect attack upon the Staff study must also be rejected. Furthermore, in this case, Cities itself has misapplied the transfer price test by assuming, without adequate proof, that CIPSCO's retail costs would be the same as the retail costs of its wholesale customers, J.A. 139, an assumption which may explain the ALJ's misunderstanding of the test he was being asked to apply.56

At any rate, having failed to make out a price squeeze case, Cities is not aided by FPC v. Conway (supra). The Supreme Court in Conway held that although the Commission lacked jurisdiction to fix retail rates, its jurisdiction to set wholesale rates allowed it to take retail rates into consideration where wholesale customers were price squeezed by dint either of the utility company's desire to drive out retail competitors or of the interplay between federally and locally regulated rates.

The Commission must arrive at a rate level deemed by it to be just and reasonable, but in doing so it must consider the tendered allegations that the proposed rates are discriminatory and anticompetitive.57

The Supreme Court upheld a decision of this court, per Leventhal, J., and observed that this court was "quite correct" in concluding:

When the costs are fully allocated, both the retail rate and the proposed wholesale rate may fall within a zone of reasonableness, yet create a price squeeze between themselves. There would, at the very least, be latitude in the FPC to put wholesale rates in the lower range of the zone of reasonableness, without concern that overall results would be impaired, in view of the utility's own decision to depress certain retail revenues in order to curb the retail competition of its wholesale customers.58

We read that language as permitting the Commission to adjust wholesale rates within a range of reasonableness to respond either to utility efforts to depress retail rates to meet competition, or to situations where the imperfections of regulation result in an unintended price squeeze. Since ratemaking is an inexact science, even bona fide allocations of costs between wholesale and retail operations may be imperfect or rates of return set by different regulators at the wholesale and retail levels may make it impossible for purchasing wholesalers, no matter how efficient, to compete at the retail level. In such cases, Conway acknowledges the Commission's discretion to press wholesale rates to the lower end of the zone of reasonableness. The Conway doctrine is not, however, we emphasize, designed to subsidize particular retail competitors. Rather, the doctrine allows the Commission some leeway where it finds that the process of price setting by regulation, and not the superior efficiency of the utility, might result in retail competitors being driven from the market.

Here, the requisite proof that a price squeeze existed was not forthcoming and indeed was refuted by the Staff study. When costs were fully allocated between wholesale and retail operations, CIPSCO's wholesale profit margin was sufficiently lower than its retail profit margin so that there was no occasion for the Commission to exercise its Conway discretion.

B. Normalization of Generating Capacity

In 1977, CIPSCO opened a new generating plant resulting in a sudden increase in the system's generating reserves.59 Petitioners contend the Commission erred in failing to "normalize" this increase in generating capacity-that is, to exclude from the rate base all costs associated with reserve capacity in excess of 15 percent-despite the fact that they did not allege60 and made no attempt to prove61 that any portion of these costs were occasioned by managerial imprudence. We affirm the Commission's refusal to normalize these costs.

While we recognize that rate treatment of excess generating capacity in the electric utility industry is controversial in this era of slow demand growth, we are also aware that it is notoriously difficult to project accurately the demand for electric power far enough in advance to coordinate need with the construction of new generating facilities,62 CIPSCO has argued that practical reasons often exist for constructing facilities with a capacity in excess of the recommended norm.63 The ALJ relied here upon the absence of any sort of managerial imprudence to support the inclusion of the total plant in the rate base.64 Regardless of whether that test is-or should be-the exclusive one in deciding whether a utility's ratepayers must always bear the total costs of excess capacity by having such costs included in the rate base in the year the plant comes on line, we do not find the Commission's action on the basis of the record in this case to be arbitrary or capricious.65

C. Refusal to Investigate

The ALJ found that CIPSCO's operating and maintenance costs exceded the industry norm, and recommended that FERC investigate the causes of this phenomenon.66 FERC reversed this recommendation, deciding not to institute an investigation because "(t)he asserted need for the investigation requested by Cities has not been adequately established."67 Cities contends FERC "approach (is) ... substantially in error" as "F.E.R.C. should have routine reporting and evaluating functions to monitor such companies as CIPSCO.... (because the Cities) should not have to launch such an expensive inquiry, which is clearly beyond their resources ..."68 Cities then asks this court to order the Commission to undertake such an investigation.69

Petitioners' argument is misdirected to this court. It is now settled law that, barring extreme circumstances, an agency's refusal to institute an investigation is unreviewable.70

Affirmed.

APPELLATE PANEL: FOOTNOTES

* Judge Wright did not participate in the rehearing.


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