No. 04-1182.

407 F.3d 1242 (2005)

XCEL ENERGY SERVICES INC., Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Wheelabrator Technologies Inc., et al., Intervenors

United States Court of Appeals, District of Columbia Circuit.

Decided May 17, 2005.

Attorney(s) appearing for the Case

William M. Dudley and Floyd L. Norton, IV were on the briefs for petitioner.

Kenneth R. Carretta and Harvey L. Reiter were on the brief for intervenors Public Service Electric & Gas Company and Maine Public Utilities Commission in support of petitioner. John E. McCaffrey and Marie D. Zosa entered appearances.

Cynthia A. Marlette, General Counsel, Federal Energy Regulatory Commission, Dennis Lane, Solicitor, and Robert H. Solomon, Deputy Solicitor, were on the brief for respondent.

Margaret A. Moore, Howard E. Shapiro, Vincenzo Franco, John B. O'Sullivan, and Carol A. Smoots were on the brief of intervenors American Ref-Fuel Company, et al. in support of respondent.

Mary McKenzie, Elizabeth McQuillan, and Karen Paull were on the brief of intervenor Public Utilities Commission of the State of California in support of respondent. Arocles Aguilar and Sean H. Gallagher entered appearances.

Before: GINSBURG, Chief Judge, and ROGERS and ROBERTS, Circuit Judges.


Section 210 of the Public Utility Regulatory Policies Act (PURPA) requires the FERC to promulgate rules requiring electric utilities to offer to sell electricity to, and to purchase electricity from, "qualifying facilities" (QFs). 16 U.S.C. § 824a-3(a). The FERC must ensure that a QF's selling rate does not exceed the purchasing utility's "avoided cost," which is "the cost to the electric utility of the electric energy which, but for the purchase...

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