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CENTRAL ELECTRIC POWER CO-OP. v. SOUTHEASTERN POWER

Nos. 02-2027, 02-2035.

338 F.3d 333 (2003)

CENTRAL ELECTRIC POWER COOPERATIVE, INCORPORATED; Saluda River Electric Cooperative, Incorporated; South Carolina Public Service Authority, Plaintiffs-Appellants, v. SOUTHEASTERN POWER ADMINISTRATION; Charles A. Borchardt, in his capacity as Administrator of the Southeastern Power Administration; Federal Energy Regulatory Commission; Department of Energy; Spencer Abraham, in his capacity as Secretary of Energy, Defendants-Appellees. The Municipal Electric Authority of Georgia, Amicus Supporting Appellees. Central Electric Power Cooperative, Incorporated; Saluda River Electric Cooperative, Incorporated; South Carolina Public Service Authority, Plaintiffs-Appellees, v. Southeastern Power Administration; Charles A. Borchardt, in his capacity as Administrator of the Southeastern Power Administration; Federal Energy Regulatory Commission; Department of Energy; Spencer Abraham, in his capacity as Secretary of Energy, Defendants-Appellants. The Municipal Electric Authority of Georgia, Amicus Supporting Appellants.

United States Court of Appeals, Fourth Circuit.

Decided: July 29, 2003.

Attorney(s) appearing for the Case

ARGUED: A. Hewitt Rose, III, BRICKFIELD, BURCHETTE, RITTS & STONE, P.C., Washington, D.C., for Appellants.

Gillian Flory, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

ON BRIEF: Kathleen T. Spear, BRICKFIELD, BURCHETTE, RITTS & STONE, P.C., Washington, D.C.; Elizabeth H. Warner, SOUTH CAROLINA PUBLIC SERVICE AUTHORITY, Moncks Corner, South Carolina, for Appellants.

Robert D. McCallum, Assistant Attorney General, Robert Greenspan, Felix Baxter, C. Max Vassanelli, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Donald W. Tyler, TYLER, CASSELL, JACKSON, PEACE & SILVER, L.L.P., Columbia, South Carolina, for Amicus Curiae.

Before WILKINSON and LUTTIG, Circuit Judges, and Henry E. HUDSON, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed by published opinion. Judge WILKINSON wrote the opinion, in which Judge LUTTIG and Judge HUDSON joined.

OPINION

WILKINSON, Circuit Judge:

Plaintiffs brought this action in federal district court to set aside defendants' rate schedule for the sale of hydroelectric power under the Flood Control Act. Plaintiffs argued, and the district court held, that the rate schedule was arbitrary and capricious because it imposed a surcharge on plaintiffs...

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