RESPONDENT: Ohio Power Company
LOCATION: Clark County Jail
DOCKET NO.: 89-1283
DECIDED BY: Rehnquist Court (1990-1991)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 498 US 73 (1990)
ARGUED: Oct 01, 1990
DECIDED: Nov 27, 1990
Carter G. Phillips - on behalf of the Petitioners
Edward Berlin - on behalf of the Respondents
Lawrence G. Wallace - as Federal Respondent in support of the Petitioners
Facts of the case
Media for Arcadia, Ohio v. Ohio Power CompanyAudio Transcription for Oral Argument - October 01, 1990 in Arcadia, Ohio v. Ohio Power Company
Audio Transcription for Opinion Announcement - November 27, 1990 in Arcadia, Ohio v. Ohio Power Company
William H. Rehnquist:
The opinion of the Court in No. 89-1283, Arcadia Ohio versus Ohio Power Company will be announced by Justice Scalia.
This case is on certiorari from the Court of Appeals for the District of Columbia Circuit.
Arcadia Ohio and 14 other petitioners, that purchase wholesale electricity from Ohio Power, challenged a rate increase filed by Ohio Power in 1982.
The Federal Energy Regulatory Commission, in the exercise of its jurisdiction to assure adjust and reasonable rates, disallowed that portion of Ohio Power's rates attributable to Ohio Power's cost of coal.
Ohio Power's coal was purchased primarily from its own subsidiary, the Southern Ohio Coal Company at cost.
Southern Ohio Coal Company bears the regrettable acronym of SOCCO.
Ohio Power argued that because its acquisition of SOCCO had been approved by the Securities and Exchange Commission, and because the approval orders indicated that that coal would be priced at cost, FERC could not disallow that portion of Ohio Power's costs which reflected these coals charges.
Ohio Power based its argument on Section 318 of the Federal Power Act which provides that when the SEC and FERC regulate the same subject matter, the regulation of the SEC takes precedence.
Because the SEC had regulated the price of coal, Ohio Power argued FERC was not permitted through its rates jurisdiction to regulate in effect the same subject matter.
The Court of Appeals agreed and we granted certiorari.
In the unanimous opinion, we now reverse because Section 318 has no application to this case.
Section 318 begins with a carefully detailed clause listing the subjects with respect to which the SEC preemption rule applies.
That clause ends with the phrase "or any other subject matter" but we do not believe that that phrase stands alone as a parallel object of the proposition with respect to.
Instead, it is part of the fourth enumerated category of parallel FERC and SEC regulation which reads "the acquisition or disposition of any security, capital, assets, facilities, or any other subject matter" so read, Section 318 does not apply to the alleged conflict that exists in this case.
Accordingly, we reverse the judgment and because there are other issues, that the Court of Appeals found it unnecessary to reach because of its application of Section 318, we remand the case for further proceedings.
Justice Stevens joined the court's opinion and filed a concurring opinion in which Justice Marshall joined.
Justice Souter took no part.