Judge JACOBS concurs in the judgment in a separate opinion.
REENA RAGGI, Circuit Judge:
The State of New York and the Public Service Commission of the State of New York (collectively, "New York") petition this court for review of two final orders of the Federal Energy Regulatory Commission ("FERC"), insofar as the orders adopt standards and procedures for determining which power distribution facilities are subject to the agency's regulatory jurisdiction and which facilities fall within the statutory exception for local distribution of electric energy. See Revisions to Electric Reliability Organization Definition of Bulk Electric System, Order No. 773, 141 FERC ¶ 61,236 (2012), clarified and reh'g denied, Order No. 773-A, 143 FERC ¶ 61,053 (2013). New York contends that the standards and procedures are an unreasonable interpretation of the agency's statutory grant of jurisdiction. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). It further challenges the standards and procedures as arbitrary and capricious under the Administrative Procedure Act. See 5 U.S.C. § 706. We conclude that these arguments are without merit and, therefore, deny the petition for review.
The Federal Power Act, as amended in 1935, see Pub.L. No. 74-333, tit. II, 49 Stat. 803, 838-54 (1935) (codified at 16 U.S.C. § 792 et seq.), grants the Federal Power Commission, and now its successor agency FERC, regulatory authority over interstate aspects of the nation's electric power system. See 16 U.S.C. § 824(a). Congress specifically excluded from this jurisdictional grant "facilities used in local distribution or only for the transmission of electric energy in intrastate commerce." Id. § 824(b)(1). Regulation of these exempted facilities is reserved to the states. See, e.g., New York v. FERC, 535 U.S. 1, 22, 122 S.Ct. 1012, 152 L.Ed.2d 47 (2002); Connecticut Light & Power Co. v. Fed. Power Comm'n, 324 U.S. 515, 518, 65 S.Ct. 749, 89 L.Ed. 1150 (1945). The statute
For many years, FERC exercised its statutory jurisdiction essentially as an economic regulator, overseeing the market for the sale of electricity in interstate commerce. See 16 U.S.C. § 824; see also Connecticut Light & Power Co. v. Fed. Power Comm'n, 324 U.S. at 524, 65 S.Ct. 749 (observing that purpose of Federal Power Act "was primarily to regulate the rates and charges of the interstate energy"). After the northeast United States experienced a large-scale blackout in the summer of 2003, however, Congress expanded FERC's regulatory authority by enacting the Electricity Modernization Act of 2005, Pub.L. No. 109-58, tit. XII, 119 Stat. 594, 941-86 (2005). That Act authorizes FERC to adopt and enforce mandatory technical reliability standards for facilities that make up the national energy grid. See 16 U.S.C. § 824o (authorizing FERC to impose reliability standards on facilities that comprise "bulk-power system," defined to include "facilities and control systems necessary for operating an interconnected electric energy transmission network"). The Act does not require FERC to develop these standards for itself. Rather, it directs FERC to certify an outside organization to develop such standards subject to agency approval. See 16 U.S.C. § 824o (c), (d). To fill this role, FERC certified North American Electric Reliability Corporation ("NERC"), an organization that had previously developed a series of voluntary technical standards for the industry.
At the same time, however, the statute maintains the Federal Power Act's jurisdictional exception by specifying that the bulk-power system "does not include facilities used in the local distribution of electric energy." Id. § 824o (a)(1). Again, the statute neither defines "facilities used in... local distribution" nor instructs as to how such facilities should be identified.
In 2007, FERC adopted a number of reliability standards proposed by NERC. See Mandatory Reliability Standards for
In early 2012, NERC submitted its new proposed standards and procedures for identifying facilities within the bulk electric system, which FERC proceeded to publish for industry and public comment. See Revision to Electric Reliability Organization Definition of Bulk Electric System and Rules of Procedure, Notice of Proposed Rulemaking, 139 FERC ¶ 61,247 (2012). Approximately 60 persons and entities commented, including New York, which again voiced objections. Nevertheless, in December 2012, FERC issued Order 773, the first of the orders here at issue. That order essentially adopts NERC's proposed standards and procedures for identifying power transmission facilities that are part of the bulk electric system subject to federal regulation. See Order No. 773, 141 FERC ¶ 61,236, at ¶¶ 1-4. These standards and procedures may be grouped into three categories.
First, any facility with an operating voltage at or exceeding 100 kilovolts ("kV") is presumed to be part of the nation's bulk electric system, while any facility with a lower operating voltage is presumed to be engaged in local distribution. See id. ¶ 61,236, at ¶ 67 (observing that "this threshold will remove from the bulk electric system the vast majority of facilities that are used in local distribution, which tend to be operated at lower, sub-100 kV voltages").
Second, notwithstanding these presumptions, the order specifies five facility configurations that are to be included in the bulk electric system, and four configurations that are to be excluded therefrom, regardless of their operating voltages.
Third, even if, at the first two steps of analysis, a facility appears to come within FERC's regulatory jurisdiction, the order
Challenged Order 773 is subject to a two-year "grace period," affording parties time to plan for and implement the reliability requirements, to request technical exemptions therefrom, and to petition for individualized jurisdictional review. A subsequent order has extended that grace period to July 1, 2016. See Revisions to Electric Reliability Organization Definition of Bulk Electric System and Rules of Procedure, 143 FERC ¶ 61,231 (2013).
New York unsuccessfully sought rehearing on Order 773, see Order No. 773-A, 143 FERC ¶ 61,053, whereupon it timely filed the instant petition for review of both Orders 773 and 773-A.
New York's petition for review asserts two claims. First, New York argues that the challenged orders unreasonably construe FERC's statutory jurisdiction by (a) using an operating voltage threshold that sweeps into the national bulk electric system some exempt facilities engaged in local distribution; and (b) employing impermissible procedures to identify exempt facilities only after already exercising jurisdiction, while then requiring facilities to shoulder the burden of demonstrating their exemption from FERC jurisdiction. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778. Second, New York asserts that the challenged standards and procedures are arbitrary and capricious under the Administrative Procedure Act. See 5 U.S.C. § 706.
As New York recognizes, because it challenges FERC's interpretation of jurisdiction conferred by statutes that the agency is charged with administering, our review properly follows the two-step analysis outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778. See City of Arlington, Tex. v. FCC, ___ U.S. ___, 133 S.Ct. 1863, 1868-69, ___ L.Ed.2d ___ (2013) (holding Chevron analysis applicable to agency's determination of its own statutory jurisdiction).
Where statutes are thus "silent or ambiguous with respect to the specific issue" in dispute, a court must proceed to step two of Chevron analysis. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 843, 104 S.Ct. 2778. At that step, we deem Congress to have delegated the resolution of statutory ambiguity to the administering agency, so that our judicial task is simply to determine "whether the agency's answer is based on a permissible construction of the statute." Id.; accord City of Arlington, Tex. v. FCC, 133 S.Ct. at 1868 (stating that question court faces when confronted with challenge to "agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority" (emphasis omitted)); Torres v. Holder, 764 F.3d 152, 158 (2d Cir.2014) (approving Board of Immigration Appeals' interpretation of Immigration and Nationality Act). That inquiry is deferential, asking only whether the agency's interpretation is "reasonable," while "respect[ing] legitimate policy choices" made by the agency. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. at 843-44, 866, 104 S.Ct. 2778; accord National Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 986, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (describing Chevron step two as asking whether agency's construction is a "reasonable policy choice" (internal quotation
New York contends that adoption of a 100 kV threshold to define the bulk electric system is an unreasonable construction of FERC's statutory jurisdiction because the system, so defined, can include facilities engaged in local distribution, which are exempt from FERC jurisdiction. The argument might persuade if FERC treated operation at 100 kV or greater as determinative of jurisdiction. In fact, it does not.
As an initial matter, FERC's choice of the 100 kV threshold is grounded in NERC findings that "the vast majority of 100 kV and above facilities" operate in interconnected transmission networks within the national power grid. See Order No. 773, 141 FERC ¶ 61,236, at ¶ 41. New York does not challenge this factual finding. Further, the 100 kV threshold is used only to set a preliminary jurisdictional boundary, which is always subject to generally applicable adjustments and, upon request, to individualized ones. The nine generally applicable adjustments, see supra note 4, are based on pre-defined inclusions and exclusions from the bulk electric system without regard to the operating voltage threshold. The two individualized adjustments (1) afford facilities subject to federal jurisdiction technical exemption from reliability requirements, or — more relevant here — (2) provide for FERC to conduct a holistic review of whether a particular facility is used in local distribution so as to fall outside federal jurisdiction. In sum, when the 100 kV threshold is properly understood in this context — as a preliminary, not determinative, factor — it does not signal FERC's unreasonable construction of its regulatory jurisdiction to extend to local distribution facilities operating above a 100 kV threshold.
Nor is a different conclusion warranted by New York's assertion that FERC established the 100 kV threshold more to further its policy interest in uniform reliability standards than accurately to delineate between facilities subject to and exempt from its regulatory jurisdiction. Whatever policy interests may have animated FERC's challenged orders, our singular concern on Chevron review is whether FERC acted unreasonably in employing a 100 kV threshold to clarify an otherwise ambiguous statutory distinction between power facilities over which it does and does not have regulatory jurisdiction. Because there is record support for the selection of a 100 kV threshold as an initial standard, and because that standard is not determinative but subject to general and individualized adjustments, we conclude that FERC did not act unreasonably in including such a threshold within a larger scheme of standards and procedures for clarifying its statutory jurisdiction.
New York argues that FERC's unreasonable construction of its statutory jurisdiction is further evident in the defective procedures it proposes to use to distinguish facilities subject to and exempt from that jurisdiction. New York carries a heavy burden in making this argument because judicial review of the procedure an agency fashions to discharge its statutory duties is generally deferential. See
Here, New York faults the challenged orders for not requiring an express factual finding that a given facility is not used in local distribution as a precondition to the exercise of federal jurisdiction. It contends that the orders also impermissibly require facilities to shoulder the burden of proving their exemption from federal regulatory jurisdiction. New York further complains that the orders provide for only facilities — not state regulators — to petition for individualized review of jurisdiction. Intervenor National Association of Regulatory Utility Commissioners ("NARUC") adds that FERC unreasonably construes its jurisdiction in requiring a facility to apply to NERC for a technical exemption before petitioning FERC for an individualized assessment of jurisdiction. None of these arguments persuades.
Before discussing each argument in turn, we note New York's general reliance on two cases to challenge Order 773's procedural structure: Connecticut Light & Power Co. v. Federal Power Commission, 324 U.S. 515, 65 S.Ct. 749, and Federal Power Commission v. Florida Power & Light Co., 404 U.S. 453, 92 S.Ct. 637, 30 L.Ed.2d 600 (1972). Connecticut Light & Power emphasizes the need for "explicit" agency findings excluding the local distribution exception to federal regulatory jurisdiction so as to "give[] assurance that the bounds of federal jurisdiction have been accurately understood and fully respected." 324 U.S. at 532, 65 S.Ct. 749. Not only had the agency in that case failed to make any such findings, but also, the Supreme Court "doubt[ed] whether by application of the statute as herein construed it could have done so." Id.
In Florida Power & Light, the Supreme Court held that regulatory jurisdiction under the Federal Power Act can be exercised "only if there is substantial evidentiary support for the Commission's conclusion" that interstate transfer of electricity had occurred. 404 U.S. at 458, 92 S.Ct. 637. The Court ruled that persuasive expert opinion supported by empirical evidence, even if not rising to the level of certainty, can satisfy this requirement. See id. at 459, 463-67, 92 S.Ct. 637.
These propositions — that in the face of a statutory exception, FERC must support its exercise of jurisdiction by explicit findings, and that those findings must be based on substantial evidence — undoubtedly control here. See 16 U.S.C. § 824(b) ("The Commission ... shall not have jurisdiction... over facilities used in local distribution...."); id. § 825l (b) ("The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive."). But New York errs in construing the challenged orders to allow FERC to exercise jurisdiction without complying with these mandates.
First, the orders do not provide for FERC to exercise regulatory jurisdiction before determining whether a facility falls within the statute's local distribution exception. Rather, the orders establish a procedure for the factfinding requisite to the exercise of such jurisdiction.
In sum, the challenged orders do not authorize FERC to regulate any facility in advance of a factually supported, explicit determination of jurisdiction.
Second, contrary to New York's assertion, the fact that a facility must petition for an individualized assessment of jurisdiction under the challenged orders does not mean that the facility bears the burden of proving that it falls within an exception to jurisdiction. Certainly, no language in the orders imposes such a burden on facilities, and FERC disclaims it in its brief to this court. See Resp't's Br. 36 ("[C]ontrary to New York's argument..., the Commission has not impermissibly shifted the burden of determining its jurisdiction."). Accordingly, we identify no unreasonable construction of FERC jurisdiction in the petitioning process.
Third, New York complains that FERC permits only facility owners, not state regulators acting on behalf of a facility, to petition for an individualized assessment of jurisdiction. This particular argument is not properly before us because New York did not raise it before FERC. See 16 U.S.C. § 825l (b) ("No objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing unless there is reasonable ground for failure to do so."). In its petition for rehearing of Order 773, New York argued that FERC should not be excluding state regulators from the local distribution determination process. In denying rehearing, FERC clarified that the challenged orders effect
Fourth, intervenor NARUC's procedural complaint that FERC requires facilities to apply to NERC for a technical exemption before they can petition FERC for an individualized determination of jurisdiction merits little discussion. As FERC clarified in denying rehearing of Order 773, the filing of a jurisdictional petition is not conditioned on a prior filing for a technical exemption. Rather, the two processes are independent avenues by which a facility may seek different forms of relief. NERC technical exemptions excuse certain facilities from compliance with reliability standards even though they fall within FERC's regulatory jurisdiction. By contrast, a petition for an individualized jurisdictional determination ensures that local distribution facilities are properly excluded from FERC's regulatory jurisdiction despite preliminary factfinding placing them within the bulk electric system. See Order No. 773-A, 143 FERC ¶ 61,053, at ¶¶ 83-94. Thus, the challenged orders do not impose unwarranted procedural obligations as preconditions to a facility petitioning for individualized review of jurisdiction.
Accordingly, we identify no merit in New York's and intervenor NARUC's arguments that procedures established by the challenged orders indicate FERC's unreasonable construction of the scope of its regulatory jurisdiction over electric power distribution facilities.
Independent of our Chevron review of an agency's interpretation of a statute it administers, the Administrative Procedure Act requires us to set aside agency action that is "arbitrary" or "capricious." 5 U.S.C. § 706(2)(A); see Green Island Power Auth. v. FERC, 577 F.3d 148, 158 (2d Cir.2009) (reviewing FERC actions under § 706(2)(A) standard). The mere fact that an agency rescinds one rule and adopts another is not arbitrary or capricious where the new rule is supported by reasoned decisionmaking and there are no circumstances requiring further explanation, such as contradictory findings of fact or substantial reliance interests on the old rule. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009); accord Mei Fun Wong v. Holder, 633 F.3d 64, 78 (2d Cir.2011). In making these determinations, we may not ourselves re-weigh the evidence or substitute our policy judgment for that of the agency. See Islander E. Pipeline Co. v. McCarthy, 525 F.3d 141, 150-51 (2d Cir.2008). Indeed, FERC's factfinding is conclusive if supported by substantial evidence. See 16 U.S.C. § 825l (b).
The Supreme Court has explained that "[s]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (internal quotation marks
The record amply demonstrates the serious consideration FERC and its designated agent, NERC, gave over a period of several years to the standards and procedures that would allow it objectively and effectively to identify facilities within the nation's bulk-power system while respecting the jurisdictional exception created by Congress for local distribution facilities. During that time, FERC amassed and considered an extensive array of factual material, as well as scores of comments submitted by interested parties in response to the agency's published preliminary proposals. The agency provided reasoned explanations, spanning hundreds of pages, for adopting the standards and procedures here at issue in lieu of its former rule. See Order No. 773, 141 FERC ¶ 61,236; Order No. 773-A, 143 FERC ¶ 61,053.
Thus, the factual record and the agency's industry expertise permitted FERC to conclude that facilities operating above a 100 kV threshold are generally part of the bulk system's interconnected transmission networks and are critical in maintaining the reliable functionality of the system as a whole. See Order No. 773-A, 143 FERC ¶ 61,053, at ¶ 25 (finding that "failure of 100-200 kV facilities has caused cascading outages that would have been minimized or prevented" by compliance with proposed reliability standards). The same record and expertise supported FERC's determination that a 100 kV threshold, together with detailed predefined inclusions and exclusions, would effectively identify facilities comprising the bulk system while ensuring that "most local distribution facilities" were excluded from regulatory jurisdiction as statutorily prescribed. Order No. 773, 141 FERC ¶ 61,236, at ¶ 67.
In urging otherwise, New York argues that FERC's prior use of a seven-factor test concedes that local distribution determinations are fact sensitive and cannot be made on the basis of categorical rules. The point merits little discussion because, as already observed, FERC did not abandon individualized factfinding in the challenged orders. Rather, after determining that an operating voltage threshold together
To summarize, we conclude that the standards and procedures established in challenged FERC Orders 773 and 773-A both (1) reasonably interpret the agency's regulatory jurisdiction under the Federal Power Act as amended by the Electricity Modernization Act of 2005 and, thus, satisfy the standard of judicial review under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778; and (2) are not arbitrary and capricious but, rather, are supported by sufficient explanation and substantial evidence as required by the Administrative Procedure Act.
We have considered New York's remaining arguments and have found them to be without merit. Accordingly, the petition for review of FERC Orders 773 and 773-A is DENIED.
DENNIS JACOBS, Circuit Judge, concurring in the judgment:
I concur in the judgment, but would deny the petition on a related ground.
If New York were challenging how FERC defines the statutory terms "local distribution" or "bulk-power system," I would agree with the majority that the challenged regulations must be upheld under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). New York is not advancing a definitional challenge, however. Instead, it is making a procedural argument: that FERC cannot use a 100-kV threshold
I would uphold the regulations on settled principles: (I) an agency is entitled to great deference when formulating "rules of procedure" and "methods of inquiry," Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 543, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978); and (II) that deference is not diminished simply because the agency's procedures bear on issues of jurisdictional significance, City of Arlington, Tex. v. FCC, ___ U.S. ___, 133 S.Ct. 1863, 1874, ___ L.Ed.2d ___ (2013).
The majority resolves this case as a matter chiefly of statutory construction, but New York's challenge is not that the 100-kV threshold is a definition of "local distribution." See Maj. Op. 953-56. Nowhere
New York's argument is surely procedural. The parties agree that: (1) the 100-kV threshold filters out most (but not all) local distribution facilities, see Oral Arg. Tr. 3:11-16, 7:3-7, 14:21-15:1; (2) the seven-factor test (either alone or in conjunction with additional considerations) adequately identifies local distribution facilities, id. 2:20-25, 19:11-17, 20:10-17; and (3) local distribution facilities not filtered out by the 100-kV threshold can request individualized adjudication applying the seven factors, id. 3:15-16, 18:2-14, 19:11-17.
New York's objection is to the timing of these steps, and runs as follows: Because the 100-kV threshold is an imperfect filter, some local distribution facilities will become subject to FERC's reliability regulations. And while those facilities may petition for individualized adjudication, some may choose not to. And as to that subset of facilities, FERC would be exercising its regulatory authority in excess of its jurisdiction.
That argument fails:
Vermont Yankee, 435 U.S. at 543, 98 S.Ct. 1197 (citation and internal quotation marks omitted). The 100-kV threshold functions as a "rule[] of procedure" and a "method[] of inquiry," filtering out facilities very likely to qualify as local distribution facilities (i.e., those below the threshold), and allowing FERC to concentrate its regulatory efforts on those facilities much less likely to qualify as local distribution facilities (i.e., those above the threshold). Without some such sorting mechanism, FERC would have to determine the status of every facility individually, even those that fall clearly on one side or the other of the divide.
New York has identified no "constitutional constraints or extremely compelling circumstances" that would warrant imposing such a (wasteful) procedure. Vermont Yankee, 435 U.S. at 543, 98 S.Ct. 1197. "An agency enjoys broad discretion in determining how best to handle related, yet discrete, issues in terms of procedures and priorities." Mobil Oil Exploration & Producing Se. Inc. v. United Distribution Cos., 498 U.S. 211, 230, 111 S.Ct. 615, 112 L.Ed.2d 636 (1991) (citations omitted). Local distribution facilities that generate more than 100 kV (or fall within one of the inclusions) may have an interest in avoiding regulation by FERC; but such interest is adequately protected by the opportunity to seek individualized adjudication after the application of the 100-kV threshold but before the imposition of any substantive regulations.
New York suggests that the deference owed to FERC's procedures under Vermont Yankee is diminished because the challenged regulations bear on the exercise of FERC's jurisdiction. See Petitioners' Reply Br. 4. Because "jurisdictional" facts determine FERC's ability to exercise regulatory authority in the first place, New York argues, such facts must be adjudicated case by case.
As the Supreme Court explained in City of Arlington, the seeming distinction between "jurisdictional" and "nonjurisdictional" challenges to agency action is a "mirage." 133 S.Ct. at 1868. While a "court's power to decide a case is independent of whether its decision is correct," the same is not true for agencies. Id. at 1869 (emphasis added). For agencies, both the "power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires." Id. (emphases added). "[T]he question in every case is, simply, whether the statutory text forecloses the agency's assertion of authority, or not." Id. at 1871.
City of Arlington was decided in the Chevron context. But the lesson of City of Arlington is that there is no subset of "big, important" jurisdictional questions that require more searching judicial review than "humdrum, run-of-the-mill" questions. 133 S.Ct. at 1868. That lesson would seem to be equally applicable whether the challenged agency action is statutory interpretation (as in City of Arlington) or the fashioning of procedural rules (as in this case). In both contexts, "when [agencies] act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires." Id. at 1869.
I concur with the majority that the challenged regulations are entitled to deference and must be upheld; I would deny New York's petition under the principle of deference in Vermont Yankee.
Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities and Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, FERC Stats. & Regs. ¶ 31,036, 61 Fed.Reg. 21,540, 21,620 (1996). The agency also signaled a willingness to consider state regulators' recommendations as to where to draw this jurisdictional line. See id. at 21,625.27.
Order No. 773, 141 FERC ¶ 61,236, at ¶ 13.
The four exclusions are as follows:
Id. ¶ 61,236, at ¶ 18.
Order No. 773, 141 FERC ¶ 61,236, at ¶ 1 (emphases added). Because the "bulk electric system" cannot, by statute, include "facilities used in ... local distribution," 16 U.S.C. § 824o (a)(1), the definition given to the former term necessarily draws the boundary of the latter. Indeed, New York frames the question before this court as "[w]hether FERC has adopted a definition of the `bulk electric system' that sweeps in components `used in the local distribution of electric energy' which are expressly excluded from its jurisdiction by 16 U.S.C. § 824o (a)(1)." Pet'r's Br. 1. And elsewhere, New York explicitly requests Chevron review: "This Court should review FERC's interpretation of its electric power transmission reliability jurisdiction under the standards set forth in Chevron...." Id. at 13. While Judge Jacobs observes that New York cites Chevron only twice in its principal brief, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978) — the source for his preferred standard of review — is cited not at all. Nevertheless, because Judge Jacobs concludes that Vermont Yankee also supports denial of the petition, the panel judgment is unanimous.
