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NEW ORLEANS PUB. SERV. v. COUNCIL OF NEW ORLEANS

No. 90-3050.

911 F.2d 993 (1990)

NEW ORLEANS PUBLIC SERVICE, INC., Plaintiff-Appellant, v. The COUNCIL OF the CITY OF NEW ORLEANS, et al., Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

Rehearing Denied October 17, 1990.

Attorney(s) appearing for the Case

Herschel L. Abbott, Jr., Jones, Walker, Waechter, Portevent, Carrere & Denegre, New Orleans, La., David W. Carpenter, Sidley & Austin, Chicago, Ill., Rex E. Lee, Brigham Young University, Provo, Utah, Thomas O. Lind, New Orleans, La., for plaintiff-appellant.

Joseph Bernstein, New Orleans, La., for Alliance.

Okla Jones, II, City Atty., Michael W. Tifft, Walter J. Wilkerson, New Orleans, La., Clinton A. Vince, Bernhardt K. Wruble, Verner & Liipert, Washington, D.C., Kenneth Carter, Sidney Cates, Carter & Cates, New Orleans, La., for defendants-appellees.

Before WISDOM, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

New Orleans Public Service, Inc. asks us to reverse the district court's determination that the Council's retail rate order is not "facially" preempted by federal law, specifically a wholesale rate order the Federal Energy Regulatory Commission made under the Federal Power Act. The Council's order prevented NOPSI from recovering, in its retail rate, wholesale costs FERC ordered it to incur as a result of its participation in...

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