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Wheelabrator Lisbon, Inc. v. State of Connecticut Dep't of Public Utility Control

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Argued: January 15, 2008

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

Plaintiff Wheelabrator Lisbon, Inc. challenges a decision of defendant State of Connecticut Department of Public Utility Control (“DPUC”)*fn2 concerning an Electricity Purchase Agreement (“Agreement”) for the sale of wholesale electricity between Wheelabrator and intervenor Connecticut Light and Power Company (“CL & P”). The principal dispute concerns the ownership of the renewable energy attributes of the energy conveyed in the Agreement.*fn3 Wheelabrator argues that a 2004 decision of the DPUC modified the terms of the Agreement and thereby imposed utility-type regulation in conflict with Section 210(e) of the Public Utility Regulatory Policies Act of 1978 (“PURPA”), 16 U.S.C. § 824a-3(e); Section 210(e)’s implementing regulations; and the interpretation of PURPA by the Federal Energy Regulatory Commission (“FERC”) in American Ref-Fuel Company, 105 FERC ¶ 61,004 (2003). We agree with the District Court that the DPUC’s decision is not preempted by federal law and therefore affirm the June 28, 2006 judgment of the District Court.

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