Full opinion text
MEMORANDUM-DECISION AND ORDER MORDUE, District Judge. I. Introduction In 1978, Congress passed the Public Utilities Regulatory Policies Act (“PURPA”), 16 U.S.C. § 824a-3, as part of a package of legislation entitled the “National Energy Act.” PURPA was designed to promote long-term economic growth by reducing the nation’s reliance on oil and gas, encourage the development of alternative energy sources and thereby combat a nationwide energy crisis. Section 210(a) of PURPA required the Federal Power Commission (“FPC”), now known as the Federal Energy Regulatory Commission (“FERC”), to “prescribe, and from time to time thereafter revise” rules requiring electric utilities to offer both to sell and purchase electric energy from qualifying cogeneration facilities (“QFs”). 16 U.S.C. § 824a-3(a). Section 210(b) of PURPA required that the rates utilities paid for power purchased from QFs be “just and reasonable to the electric consumers” and “not discriminate” against QFs. 16 U.S.C. § 824a-3(b). Finally, in Section 210(e), PURPA exempted QFs from federal and state regulatory control in connection with rates and financial organization. See 16 U.S.C. § 824a-3(e). Congress also directed that each state regulatory authority implement the rules prescribed by FERC concerning electric utilities’ obligation to purchase power from QFs. See 16 U.S.C. § 824a-3(f). Pursuant to PURPA, the New York State legislature enacted New York Public Service Law § 66-c, which provided that the defendant New York Public Service Commission (“PSC”) shall require state regulated electrical utilities to enter into long-term contracts for the purchase of electricity from alternative energy sources, including co-generation facilities. See N.Y.Pub.SeRV. Law § 66-c. Furthermore, Section 66-c granted PSC authority to oversee the contracting process and set the purchase rate for long-term power contracts. See id. PURPA also contains an elaborate enforcement scheme and provisions for judicial review. See 16 U.S.C. § 824a-3(g)-(h). Section 210(g) provides for (1) state court review of state regulatory authorities’ orders implementing PURPA; and (2) state court actions to enforce requirements of state regulatory authorities. See 16 U.S.C. § 824a-3(g)(l)-(2). Section 210(h)(1) provides that for enforcement purposes, rules and regulations promulgated pursuant to PURPA shall be treated like FPA rules, see 16 U.S.C. § 824a-3(h)(1), which are enforceable by FERC in federal district court. See 16 U.S.C. § 826m. Section 210(h)(2)(A) of PURPA provides that FERC may bring an enforcement action against a state regulatory agency in district court, and Section 210(h)(2)(B) allows a utility or cogenerator to petition FERC to enforce Section 210(f) which governs state regulatory authorities’ responsibilities to implement PURPA rules and regulations. See 16 U.S.C. § 824a-3(h)(2)(B). If FERC declines to bring such an enforcement action, the utility or cogenerator can commence its own enforcement action against the state regulatory authority in district court. See id. Section 210(b) of PURPA declares that “[n]o such rule [promulgated by FERC] ... shall provide for a rate which exceeds the incremental cost to the electric utility of alternative electric energy.” 16 U.S.C. § 824a-3(b). The “incremental cost” to the electric utility of alternative electric energy is defined as “the cost to the electric utility of the electric energy which, but for the purchase from such cogenerator or small power producer, such utility would generate or purchase from another source.” 16 U.S.C. § 824a-3(d). The incremental cost described by Congress in PURPA is defined in the accompanying regulations as “avoided costs,” or those costs which the utility “avoided” incurring itself by purchasing power from a QF. See 18 C.F.R. § 292.101(b)(6). Plaintiff, New York State Energy & Gas Corporation (“NYSEG”), a traditional electrical utility, brings the present action principally to obtain relief from long-term contracts with two QFs, defendants Sara-nac Power Partners, L.P. (“Saranac”), and Lockport Energy Associates, L.P. (“Lockport”). In each case, NYSEG’s contract requires it to pay for energy purchased from these two companies at a fixed rate equal to its estimated long-run avoided costs (“LRACs”) as calculated — or miscalculated — in 1988 by NYSEG and other public utilities in conjunction with PSC. Unfortunately for NYSEG, its LRACs as estimated at the time it entered into required contracts with Saranac and Lockport are considerably higher than its current LRAC projections. According to two independent analysts retained by NY-SEG, payments under both the Saranac and Lockport agreements will significantly exceed NYSEG’s avoided costs over the terms of the agreements. Based on these predictions, NYSEG asserts that the fixed rates of its power purchase agreements (“PPAs”) with Saranac and Lockport are unauthorized under PURPA which limits rates for QF purchases to a utility’s “incremental” or avoided costs. 16 U.S.C. § 824a-3(b). II. Procedural and Regulatory History A. FERC’s Rulemaking PURPA required FERC to prescribe regulations to implement the statute “[n]ot later than 1 year after November 9, 1978.” 16 U.S.C. § 824a-3(a). Following public rulemaking proceedings, FERC promulgated regulations governing transactions between utilities and QFs in connection with purchase and sales of electricity. See Small Power Prod, and Cogeneration Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed.Reg. 12214 (Feb. 25, 1980). In American Elec. Power Serv. Corp. v. FERC, 675 F.2d 1226 (D.C.Cir.1982) (“AEP”), four utilities challenged the legality of the very regulations at issue in this case. There, the court held that FERC failed to adequately explain or justify its adoption of the full avoided cost standard in light of the enabling statute, PURPA, which mandated that rates charged to consumers be reasonable and that rates paid to QFs not exceed utilities’ incremental costs. See AEP, 675 F.2d at 1232. The plaintiff utilities in AEP argued that the “just and reasonable” language regarding purchase rates in Section 210(b) of PURPA required that rates be set at the lowest possible reasonable rate consistent with the maintenance of adequate service in the public interest. Although FERC could have enacted rales which required states to set PPA rates at less than avoided costs, FERC adopted “as a uniform rule, the maximum purchase rate specified in the statute,” after concluding that the full avoided cost standard “would be just and reasonable in every case” as necessary to encourage cogeneration. Id. at 1233. The court found that FERC failed to adequately balance the interests of cogenerators, the public and consumers of electric utilities in rejecting, in an “across-the-board manner,” PPA rates below full avoided costs. Id. at 1236. In American Paper Inst, Inc. v. American Elec. Power Serv. Corp., 461 U.S. 402, 103 S.Ct. 1921, 76 L.Ed.2d 22 (1983) (“API”), the Supreme Court reversed, in part, the D.C. Circuit’s determination that FERC had improperly promulgated its avoided cost rules. There, the Court found that FERC had fulfilled its obligation under PURPA to set a rate which was “in the public interest,” because “the words ‘public interest’ in a regulatory statute ... take meaning from the purposes of the regulatory legislation.” 461 U.S. at 417, 103 S.Ct. 1921 (quoting Nat’l Assoc, for the Advancement of Colored People v. FPC, 425 U.S. 662, 669, 96 S.Ct. 1806, 48 L.Ed.2d 284 (1976) (“NAACP v. FPC")). The Court found that the primary purpose of PURPA was to encourage cogeneration and that the “just and reasonable to ... consumers” language of PURPA required FERC only to “consider! ] ... potential rate savings for electric utility consumers.” Id. at 415, n. 9, 96 S.Ct. 1806. In the Court’s estimation, FERC did consider the possibility of such rate savings, but rejected a percentage-of-avoided-costs approach after determining that purchase rates set at below avoided costs might discourage QF production. See id. at 415, 96 S.Ct. 1806 (citing Small Power Prod, and Co-generation Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed.Reg. at 12222-12223). B. PSC Proceedings The PSC adopted rules to implement PURPA in 1982. See Consol. Edison Co. of New York, Inc., PSC Case No. 27574, Opinion No. 82-10, 48 P.U.R.4th 94 (May-12, 1982). There, PSC set forth generic guidelines for calculation of a utility’s avoided costs. Later, PSC directed NY-SEG and other New York utilities to file estimates of their LRACs from 1998 through 2008 by July 1, 1987. See Opinion and Order Adopting Long-Run Avoided Cost Estimates, Specifying Offer Provisions, and Requesting Comments on Standard Contract Language, PSC Case No. 28962, 1986 WL 289242 (Mar. 27, 1986). NYSEG filed LRAC estimates, and PSC thereafter adopted LRACs for NY-SEG in 1988. See Opinion and Order Adopting Long-Run Avoided Costs for Major Elec. TJtils., PSC Case Nos. 28962, 28973, and 28689, Opinion No. 88-13, 1988 WL 391447 (May 10, 1988) PSC then ordered NYSEG to enter into a fifteen-year contract with Loekport’s predecessor in interest, Empire Energy Niagara Limited Partnership (“Empire”). See Order Granting Petition Subject to Conditions, PSC Case No. 88-E-216 (Nov. 3, 1989). Although NYSEG objected to the proposed contract because its 1988 LRAC estimates appeared to be too high and PSC rejected its request for a tracking mechanism or “true up” provision that would reconcile estimated avoided costs with actual avoided costs, NYSEG did not appeal PSC’s order approving the contract. On March 5, 1991, PSC approved three contracts between Falcon Seaboard Oil Company (“Falcon”), Saranac’s predecessor in interest, and NYSEG. See Order Approving Contracts Subject to Conditions, PSC Case Nos. 90-E-0867, 90-E-0865 and 90-E-0860 (Mar. 5, 1991). Again, NYSEG’s request for a reconciliation mechanism was rejected by PSC. NYSEG concedes that it did not appeal from either of these orders. In 1992, PSC reduced NYSEG’s estimated LRACs by approximately forty percent. However, NYSEG did not benefit from this revision with respect to its existing contracts, and calculates that the rates it pays under the contracts with Saranac and Lockport are more than triple its actual avoided costs. C. FERC Proceedings On February 14, 1995, NYSEG filed a petition with FERC for a declaratory order and request for modification of rates in the Saranac and Lockport PPAs. In its petition, NYSEG complained that PSC forced NYSEG to enter into the agreements with Lockport and Saranac despite NYSEG’s objections that the PPAs did not adequately protect NYSEG’s ratepayers against the risk of payments in excess of avoided costs. NYSEG sought three forms of relief from FERC. First, NYSEG demanded that FERC issue a declaratory order finding that PURPA, and its accompanying regulations prohibit purchase rates in NYSEG’s congressionally mandated PPAs that are in excess of its avoided costs even if such rates were not so excessive at the time the contracts were signed. NYSEG argued that although it voiced its concern that estimated LRACs would prove to be inflated over the course of the long-term agreements with Saranac and Lockport, the aggregate amount of over-payments to these QFs became evident only after NYSEG’s time to appeal the orders of PSC directing the utility to enter into those agreements had elapsed. NY-SEG also requested that FERC either take appropriate action itself under section 210(b) of PURPA to reform the Saranac and Lockport PPAs or, under section 210(h), direct PSC to relieve NYSEG of its obligation to make payments in excess of avoided costs under these contracts. Finally, NYSEG asked FERC to waive or revise its rules as necessary to grant the requested relief. In support of its petition, NYSEG relied on FERC’s then recent decision in Connecticut Light & Power Co., 70 F.E.R.C. ¶ 61,012,1995 WL 9931 (1995) (“CL & P”). FERC denied NYSEG’s petition in its entirety finding in the first instance that the regulations it enacted pursuant to PURPA do not prohibit rates for PPAs which are based on avoided cost estimates at the time a contract is signed even if they exceed a utility’s avoided costs at the time of delivery. See NYSEG, 70 F.E.R.C., at 61,116. To wit, FERC cited 18 C.F.R. § 292.304(b)(5) which states: In the case in which rates for purchases are based upon estimates of avoided costs over the specific term of the contract or other legally enforceable obligation, the rates for such purchases do not violate this subpart if the rates for such purchases differ from avoided costs at the time of delivery. Id. FERC recognized when the above regulation was enacted that avoided costs could change over time and attempted to reconcile the requirement that utilities pay no more than their avoided costs for purchases with the need for QFs to enter contractual commitments based “by necessity, on estimates of future avoided costs.” M Indeed, FERC anticipated that if the avoided cost of power was less when delivered than the price in the PPA, the utility would be subsidizing the QF “at the expense of the utility’s other ratepayers.” Id. However, FERC was also: cognizant that in other eases, the required rate will turn out to be lower than the avoided costs at the time of purchase. The Commission [FERC] does not believe that the reference in [PURPA] to incremental cost of alternative energy was intended to require a minute-by-minute evaluation of costs which would be checked against rates established in long term contracts between [QFs] and electric utilities. Many commentators have stressed the need for certainty with regard to return on investment in new technologies. The Commission agrees with these latter arguments, and believes that, in the long run, “overestimations” and “underestimations” will balance out_The import of [18 C.F.R. § 292.304(b)(5) ] is to ensure that a [QF] which has obtained the certainty of an arrangement is not deprived of the benefits of its commitment as a result of changed circumstances. This provision can also work to preserve the bargain entered into by the electric utility. Id. Based on this regulatory history, FERC declined to issue the declaratory ruling requested by NYSEG stating it was “far too late” for “NYSEG to argue, for the first time, that these particular regulations have legal and policy flaws requiring that we abrogate contracts entered into under these regulations.” NYSEG, 70 F.E.R.C., at 61,116. Moreover, FERC refused to “second-guess” PSC’s determination of LRACs, finding that PSC’s implementation of its rules and regulations was proper and consistent with PURPA. Id. FERC noted that when PSC mandated the Sara-nac and Lockport contracts, it “specifically addressed and accounted for” the very risk of harm about which NYSEG complained in its petition. NYSEG, 70 F.E.R.C., at 61,116. Instead of requiring protective mechanisms such as avoided cost tracking and reconciliation provisions as it had in other PPAs, FERC noted PSC chose to account for any potential risk of fluctuations in LRACs by applying a discount to the LRAC estimates used to formulate the Saranac and Lockport agreements. See id. at n. 42. FERC stated that NYSEG’s case was distinguishable from CL & P, where PPA rates which “may have exceeded avoided costs at the time the rates were imposed,” were violative of Section 210(b) of PURPA. Id. (emphasis in original). Because the Saranac and Lockport contracts “reflected] State implementation consistent with PURPA and [FERC’s] regulations,” FERC declined to disturb them. Id. FERC stated that a “second, independent basis for denying NYSEG’s Petition is the Commission’s policy against invalidating contracts for which a PURPA-based challenge was not raised timely and is still not pending.” Id. FERC noted that NY-SEG, “believing it had ‘neither a cognizable injury nor a basis to complain further to [PSC] or [FERC],’ chose not to appeal [PSC’s] orders mandating the agreements.” Id. (quoting NYSEG’s petition at pp. 3-5, 17, 47). According to FERC, this was unlike the facts in CL & P where the utility had been continuously challenging the subject PPA rate — which might have exceeded avoided costs depending upon application of. an alleged unlawful state statute — since the state regulatory authority mandated the contract. Id. (citing CL & P, 70 F.E.R.C., at 61,029, 1995 WL 15832). “We believe that the appropriate time in which to challenge a state-imposed rate for a QF purchase is up to the time the purchase contract is signed, not years into a contract.” Id. (quoting In re Southern California Edison Co., 70 F.E.R.C. ¶ 61,215, at 61,678, 1995 WL 169000 (1995) (“California ”); CL & P, 70 F.E.R.C., at 61,029,1995 WL 15832). FERC concluded by noting: In this case, Lockport and Saranac (and their investors) invested in these projects in the reasonable belief that, once the deadline for timely challenges had passed, their contracts with NYSEG were lawful and binding under PURPA.... [T]he contracts at issue allocated risks to both the purchaser and the sellers. Like NYSEG, Lockport and Saranac bore risks that their agreements would become uneconomic over time. QFs bear development risks not experienced to the same extent by traditional utilities. As a result, they must rely on their [PPAs] to obtain project financing, and we have recognized the importance of contractual reliance for this purpose, if we were to grant the relief requested by NYSEG and allow the reopening of QF contracts that had not been challenged at the time of their execution, financeability of such projects would be severely hampered. Such a result is not, in our opinion, consistent with Congress’ directive that we encourage the development of QFs. NYSEG, 70 F.E.R.C., at 61,118 (citations omitted). NYSEG petitioned for rehearing, on the bases that FERC erred by: 1) relying on PSC’s estimates of LRACs; 2) failing to relieve NYSEG from PPA rates which violate Section 210(b) of PURPA; and 3) failing to modify PPA rates which violate PURPA pursuant to Section 206 of the FPA. FERC denied NYSEG’s request for reconsideration finding that the arguments therein were merely “restatements” of the arguments NYSEG made in its original petition. NYSEG, 72 F.E.R.C., at 61,340. FERC noted: Nevertheless, we are not unsympathetic to the concern of utilities that find themselves with legally binding QF contracts that contain rates that currently are above avoided cost. As we have previously explained, we believe that the remedy appropriate to this situation is to allow utilities to buy-out or buy-down such contracts, not to invalidate them. If utilities are prudent in buying out or buying down existing [PPAs], whether or not with QFs, we have indicated that we will permit the recovery in wholesale rates of a pro rata share of the buy-out or buy-down costs. NYSEG, 72 F.E.R.C., at 61,341 (citing West Penn Power Co., 71 F.E.R.C. ¶ 61,-153, at 61,497, 1995 WL ’ 265343 (1995)). D. District of Columbia Circuit Decision NYSEG then petitioned the United States Court of Appeals, District of Columbia Circuit for review of FERC’s denial of its petition. In NYSEG v. FERC, 117 F.3d 1473 (D.C.Cir.1997), the court dismissed NYSEG’s appeal for want of jurisdiction. The court held that “[bjecause the challenged order does nothing more ... than announce the position that [FERC] might take in an enforcement action before a federal district court, we are without jurisdiction to review it.” NYSEG v. FERC, 117 F.3d at 1474. To wit, the court noted that its “review of [FERC’s] non-binding assessment of ... PSC’s compliance with ... PURPA would bind the district court in any future enforcement action, thereby usurping that court’s role as the court of first instance in all matters concerning implementation of the statute.” Id. at 1475. “[I]t is always the district court that first passes upon the merits of whatever position the Commission may take concerning the implementation of ... PURPA.” Id. at 1476 (citing Indus. Cogenerators, 47 F.3d at 1234-35). Because “[t]he failure of a state commission to ensure that a rate does not exceed a utility’s avoided cost is a failure to comply with a regulation implementing ... PURPA,” the court reasoned that NYSEG must challenge PSC through an enforcement action in district court. NYSEG v. FERC, 117 F.3d at 1476. The court rejected NYSEG’s argument that judicial review of FERC’s order would not disturb PURPA’s enforcement scheme because FERC could have granted all of the relief NYSEG requested pursuant to the FPA. While acknowledging that NYSEG had requested relief under the FPA, “[FERC’s] denial of that relief was based upon determinations that would, if made binding upon the district court, be dispositive of any future enforcement action under § 210(h) [of PURPA].” Id. at 1477. The court was not persuaded by NYSEG’s argument that it had not yet commenced — nor would it need to commence — an enforcement action if the court determined that FERC’s denial of its petition was contrary to law. “[NJothing in ... PURPA suggests that the Congress let our jurisdiction turn upon a party’s choice whether to pursue its statutory remedy.” Id. The court concluded by stating: At bottom, each of NYSEG’s requests to [FERC] for relief is effectively a challenge to the rates set by ... PSC. In response to these requests [FERC] did nothing more than state why in its opinion the challenged rates comply with PURPA. Under the enforcement scheme set up by the Congress, NYSEG may now bring an enforcement action under § 210(h)(2)(B) of ... PURPA, in which case the district court will assess the merits giving [FERC’s] opinion such consideration as it may deserve. Id. at 1477. E. The Present Complaint and Cross-Claim On August 7, 1997, NYSEG filed a complaint against FERC, PSC and various officials of the PSC, Saranac, and Lock-port. In the first count of the complaint, NYSEG alleges that by failing to take any action with respect to its petition 1) for a declaratory order (that the contracts with Saranac and Lockport violate PURPA); and 2) for modification of rates imposed in the PURPA power purchase agreements with Saranac and Lockport, FERC violated PURPA and the Administrative Procedure Act (“APA”). NYSEG demands that FERC initiate whatever waivers or rulemaking is necessary to relieve NYSEG from the allegedly illegal obligations of these contracts. NYSEG also alleges that in its order denying NYSEG’s petition, FERC declared a new administrative rule which it dubs the “Continuous Challenge Rule.” To wit, NYSEG alleges FERC’s denial of its petition on this basis constitutes improper rulemaking under the APA because FERC gave no prior notice of its intent to require parties to continually challenge regulations in order to preserve a claim for relief in subsequent administrative proceedings and did not conduct formal notice and comment procedures in promulgating this alleged new rule. See Zhang v. Slattery, 55 F.3d 732, 744-45 (2d Cir.1995) (interim rule promulgated by Attorney General which directly contradicted Board of Immigration Appeals decision denying asylum to Chinese citizens seeking to avoid China’s “one couple, one child” policy was never properly promulgated as legislative rule under APA, where rule changed existing policy and was never subject to notice and comment period). In its second and third claims for relief, NYSEG alleges that PSC’s orders which set LRACs and directed NYSEG to enter into the Saranac and Loekport contracts: 1) violated PURPA and its implementing rules; and 2) violated the Supremacy Clause of the United States Constitution. NYSEG’s fourth claim is an enforcement action against PSC pursuant to Section 210(h)(2)(B) of PURPA for failure to implement PURPA properly. NYSEG’s fifth, sixth and seventh claims run against the QF’s directly and allege illegality of the PPAs, frustration of purpose and mutual mistake under New York contract law. NYSEG requests relief from performance and restitution. Alied with NYSEG in part, PSC cross-claimed against FERC alleging that FERC violated PURPA when it failed to reform the Saranac and Loekport PPAs. Relying on the FPA from whence PURPA came, PSC alleges that FERC has authority, after giving notice, soliciting comments and conducting public hearings, to modify utility rates in the public interest. PSC also alleges that PURPA itself requires FERC to revisit its regulations from time to time. PSC claims that federal regulations also grant FERC authority to revisit the issue of QF exemption from utility-type rate regulation and limit the exemptions if necessary. According to PSC, FERC can limit or change the exemptions and then modify the contracts prospectively so that going forward, the PPAs no longer violate PURPA’s prohibition against purchase rates which exceed avoided costs. Finally, PSC alleges that FERC’s failure to take any action with respect to the Saranac and Loekport contracts is a violation of the APA. F. The Present Motions A1 defendants move pursuant to Fed. R.Civ.P. 12 to dismiss NYSEG’s claims against them. Saranac, Loekport, and FERC also seek dismissal of PSC’s cross-claim. National Power Lenders Forum (“NPLF”) and the Electric Power Supply Association (“EPSA”) filed amicus briefs in support of the positions taken by Saranac, Loekport, and FERC. Aso pending before the Court — but stayed at the present time — are motions for summary judgment or partial summary judgment filed by Sar-anac, PSC and NYSEG. III. Discussion A. Motions to Dismiss Count I (N.Y.SEG’s Claims Against FERC) 1. Personal Jurisdiction FERC argues in the first instance that NYSEG’s claims against it should be dismissed for insufficiency of service of process because NYSEG admittedly failed initially to serve a copy of its summons and complaint on the U.S. Attorney’s Office in this district and mail copies of the documents to the Attorney General of the United States as required by Fed.R.Civ.P. 4(i) (governing service of process on the United States and federal agencies). On October 14, 1997, NYSEG complied with this procedural requirement by serving both the district office of the U.S. Attorney and the U.S. Attorney General well within the 120-day time limit set forth in Fed. R.CivJP. 4(m). In its reply memorandum of law, FERC appears to have abandoned this ground for relief and thus, the Court finds it has personal jurisdiction over FERC herein. 2. Subject Matter Jurisdiction a. Arguments of the Parties FERC, along with Saranac and Lock-port, argue that this Court lacks subject matter jurisdiction over NYSEG’s claims against FERC. These defendants argue that PURPA’s enforcement scheme does not authorize a direct action against FERC in district court. Rather, they argue, Section 210(h)(2) of PURPA only authorizes FERC or another aggrieved party to bring an action against a state regulatory authority such as PSC or a non-regulated utility in district court. See 16 U.S.C. § 824a-3(h)(2). In response to this argument, NYSEG asserts that the APA provides for judicial review by a district court of FERC’s decision not to take any action with respect to its petition for relief from and modification of the contracts. FERC, Saranac and Lockport argue that APA review by this Court is not authorized because: 1) APA review of an agency determination is only available if an aggrieved party has no place else to go for relief. See Bowen v. Massachusetts, 487 U.S. at 901, 108 S.Ct. 2722. According to these defendants, NY-SEG has an adequate remedy short of APA review because it can sue PSC in an enforcement action under Section 210(h)(2) of PURPA. See Nexv York City Employees’ Retirement Sys. (“NYCERS”) v. Securities axid Exchange Commission (“SEC”), 45 F.3d 7, 14 (2d Cir.1995) (litigants with remedies against parties other than the administrative agency which rendered an adverse determination are not entitled to APA review of said agency’s action); Marlow v. United States Dep’t of Educ., 820 F.2d 581, 583 (2d Cir.1987). Moreover, these defendants argue that FERC’s decision not to take enforcement action with respect to NYSEG’s petition is unreviewable as a matter reserved exclusively to its discretion. See Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) (federal agency’s decision not to prosecute or enforce rules and regulations is presumptively unreviewable under the APA). Undaunted, NYSEG counters that there is a strong presumption in favor of judicial review of agency action which can be overcome only by clear and convincing evidence of a contrary legislative intent. See Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-71, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). With respect to the presumptive unreview-ability of discretionary agency decisions, NYSEG argues that it is not asking this Court to review FERC’s discretionary decision not to enforce PURPA against PSC, but only FERC’s decisions not to: 1) take action itself under PURPA or FPA § 206(a) to relieve NYSEG of the alleged illegal obligations imposed by the Saranac and Lockport PPAs; and 2) amend or waive its own rules to provide NYSEG’s requested relief. NYSEG also contends that FERC unlawfully promulgated a binding rule of general applicability when it held that it would not undo a signed PPA unless the petitioning party had mounted a continuous challenge to the rates in that contract from its inception. According to NYSEG, this new “Continuous Challenge Rule” is not an enforcement decision reserved to FERC’s discretion and is therefore subject to judicial review under the APA. Moreover, NYSEG claims entitlement to APA review of FERC’s action in this case because the available remedy against PSC set forth in PURPA’s enforcement scheme is inadequate to provide the utility with all of the relief it seeks herein. In the first instance, NYSEG argues that the Third Circuit’s decision in Freehold Cogeneration Assoc, v. Bd. of Regulatory Comm’rs. of the State of New Jersey, 44 F.3d 1178 (3d Cir.1995), cert. denied, 316 U.S. 815, 116 S.Ct. 68, 133 L.Ed.2d 29 (1995) (state agencies such as PSC are preempted from altering PURPA contracts once ordered and approved), may prevent this Court from directing relief against PSC. Moreover, NYSEG argues, it could not challenge: 1) FERC’s failure to reform the Saranac and Lockport contracts; 2) FERC’s refusal to amend or waive its rules; or 3) FERC’s “continuous challenge rule” in an enforcement action against PSC under Section 210(h)(2) of PURPA. NYSEG asserts that it must sue FERC directly to escape a “regulatory runaround.” FERC insists that NYSEG’s arguments regarding the inadequacies of PURPA’s regulatory scheme are an attempt to extricate itself from the effects of its own ill-considered prior litigation strategy. FERC argues that NYSEG could have, but did not, challenge FERC’s rules and PSC rules which required utilities to enter long term contracts based on estimated LRACs at the time the rules were promulgated. Neither did NYSEG appeal the PSC orders directing it to enter into the Saranac and Lockport contracts with no “tracking” provisions to account for shifts in the market price for energy. As to NYSEG’s argument that it seeks review of FERC’s refusal to modify the QF contracts, FERC argues that it has no statutory authority to do so under either PURPA § 210 or FPA § 206(a) because these Acts contain no such explicit authority and, contrary to NYSEG’s arguments, the power to reform PPAs cannot be inferred from PURPA’s statutory mandate that: 1) rates paid to qualifying facilities (“QF’s”) not exceed the “incremental cost to the electric utility of alternative electric energy;” and 2) FERC shall create “and from time to time revise” its rules as necessary to implement the statute. FERC also denies that implied authority to reform the Saranac and Lockport PPAs may derive from Congress’ intent that PURPA contract rates be “just and reasonable to the electric consumers of the electric utility and in the public interest.” 16 U.S.C. § 824a-3(b)(2). FERC asserts that the FPA likewise provides no avenue for relief because PURPA regulations expressly exempt QFs such as Saranac and Lockport from the FPA section relied on by NYSEG, which allows FERC to prescribe proper rates if it determines a power purchase rate to be unreasonable. See 16 U.S.C. § 824e(a); 18 C.F.R. § 292.601. Saranac argues additionally that the FPA vests exclusive jurisdiction over review of FERC orders implementing the FPA in the Courts of Appeals. Thus, in Saranac’s estimation, this Court has no subject matter jurisdiction to review FERC orders interpreting the FPA. In response to NYSEG’s argument that FERC must promulgate new avoided cost rules to relieve them from contracts which have become grossly unprofitable, FERC asserts that this claim is not yet ripe because NYSEG’s underlying administrative petition did not formally petition the agency for new rule-making. According to FERC, even if it treated NYSEG’s underlying petition as one for rulemaking, it could not retroactively alter its rules to invalidate the Saranac and Lockport PPAs. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208-09, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988) (“statutory grant of rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms”). Finally, FERC denies that the so-called “continuous challenge rule” is new or that it is even a “rule” with the legislative effect alleged by NYSEG. Indeed, FERC insists that its declination to invalidate PURPA contracts which were not challenged when the contracts were signed was merely an explanation of why it was declining to take action on NYSEG’s petition — an enforcement decision reserved exclusively to its discretion under Heckler v. Chaney. b. Analysis At its core, each of NYSEG’s claims against FERC revolves around the same premise which is that PURPA, an enabling regulatory statute, provides “no rule prescribed [by FERC] ... shall provide for a rate which exceeds the incremental cost of the electric utility of alternative electric energy,” 16 U.S.C. § 824a-3(b). While NYSEG argues that this provision of PURPA prohibits rates which exceed a utility’s avoided costs, the Court interprets it to prohibit enactment of a rule which mandates a PPA rate in excess of avoided costs. Indeed, NYSEG recognizes as much by arguing that “[djefendants focus entirely on FERC’s rules, while ignoring PURPA’s substantive requirement that dictates such rules cannot provide for rates above a utility’s avoided cost.” See Docket 36, Memorandum of Law of NY-SEG in Opposition to Motions to Dismiss (“NYSEG Brief’), p. 25 (emphasis added). Review of PURPA regulations reveals that FERC has never enacted such a rule. When FERC promulgated regulations pursuant to PURPA, it recognized that purchases between QF’s and utilities might occur as the QF determined it had excess alternative energy to sell in which case rates for purchases would be based on the utility’s avoided costs at the time of delivery of the power. See 18 C.F.R. § 292.304(d)(1). When the purchase occurred by way of a long-term contract, however, FERC gave the QF the option of basing the purchase rate on avoided costs calculated at the time it actually delivered energy to the utility over the course of the contract or as estimated at the time it signed the contract. See 18 C.F.R. § 292.304(d)(2). In neither case, however, do the rules regarding purchases mandate a rate in excess of avoided costs. FERC obviously anticipated a circumstance where estimated LRACs would differ in some respect from actual avoided costs at the time power was delivered pursuant to a long-term PPA. To wit, FERC ruled that in the event that a purchase rate “differs from avoided costs” at the time energy is delivered pursuant to a long-term PPA, such rate does not violate PURPA. 18 C.F.R. § 292.304(b)(5). The regulatory history associated with this regulation reveals it was enacted to “address[ ] the situation in which a QF has entered into a contract with an electric utility or where the QF has agreed to obligate itself to deliver at a future date energy and capacity to the electric utility.” Small Pmoer Prod, and Cogeneration Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed.Reg. at 12224. “The import of this section is to ensure that a QF which has obtained the certainty of an arrangement is not deprived of the benefits of its commitment as a result of changed circumstances.” Id. No fair reading of the regulation can characterize it as mandating a PPA rate in excess of a utility’s avoided cost. 18 C.F.R. § 292.304(b)(5) merely accounts for and forgives the possibility that market fluctuations might cause a PPA rate to be higher than a utility’s actual avoided costs when power is actually delivered over the course of a long-term contract. Thus, FERC’s 1980 regulations anticipated and accounted for the very straits in which NYSEG now finds itself. The only question is whether there is anything NY-SEG can do about it twenty years later. NYSEG contends FERC’s failure to rescind or reform the Saranac and Lockport PPAs or waive or modify its rules to relieve them of these contractual burdens violates PURPA, the FPA and the APA. By its terms, PURPA does not authorize a direct action by any party against FERC. FERC’s actions are, however, under certain circumstances, subject to judicial review pursuant to both the FPA and the APA. It is undisputed that NYSEG did not seek review of FERC’s 1980 PURPA regulations pursuant to the FPA. Thus, the only avenue, if any, of judicial review available to NYSEG at the present time may be found in the APA. NYSEG’s assertion of an action against FERC pursuant to the APA presupposes that it has no adequate alternative remedy, an issue of intense debate between the parties. Defendants point to PURPA’s elaborate enforcement scheme and NY-SEG’s statutory right to sue PSC as an adequate alternative remedy thus precluding judicial review. NYSEG argues that it cannot get full satisfaction by suing PSC alone. To wit, it contends that it cannot obtain review of FERC’s failure to act on its petition or FERC’s alleged promulgation of a new rule in an enforcement action against PSC. The Court agrees that the inadequacies of which NYSEG complains in connection with PURPA’s enforcement scheme, insofar as it precludes the relief NYSEG now seeks against FERC, are due, in whole or large part, to: 1) NYSEG’s failure to challenge FERC’s rules, specifically 18 C.F.R. § 292.304(b)(5) and/or the exemption provisions in 18 C.F.R. § 292.602, pursuant to the FPA when these regulations were enacted as did the plaintiffs in API; 2) NY-SEG’s failure to have petitioned FERC for amendment or recission of these regulations and then appealed a denial pursuant to the APA as the plaintiffs did in NLRB v. FLRA; and 3) NYSEG’s failure to challenge PSC’s implementation of FERC’s PURPA regulations in orders which set NYSEG’s LRACs and compelled the utility to enter long-term PPAs with Saranac and Lockport. NYSEG’s failure to appeal from or challenge PSC’s orders implementing PURPA regulations is particularly telling because although NYSEG claims it did not understand the degree to which FERC’s regulations would affect it negatively at the time they were promulgated, it clearly knew when the Saranac and Lockport agreements were being negotiated that 18 C.F.R. § 292.304(b)(5) and/or the exemption regulations might result in its subsidy of the QFs if avoided cost estimates turned out to be wrong. Thus, NYSEG requested and was denied a protective “tracking mechanism” to reconcile actual avoided costs with the contract prices in both PPAs. In lieu of appealing these PSC orders, NYSEG settled for contract rates set at a discount from its estimated LRACs. However, these discounts have proved insufficient over time to compensate the utility for contract payments it is required to make in the face of the power industry’s tumbling energy prices. Nevertheless, assuming without deciding, that the previous availability of direct judicial review of the regulations and orders which now constrain NYSEG does not preclude the possibility of APA review, NYSEG must still demonstrate that this Court has jurisdiction to review the order at issue. Saranac and Lockport argue that FERC’s decision to deny NYSE G’s administrative petition was merely a non-enforcement determination and is unreviewable as a matter of law pursuant to Heckler v. Chaney. Indeed, the Court stated therein that “an agency generally cannot act against each technical violation of the statute it is charged with enforcing.” 470 U.S. at 831, 105 S.Ct. 1649. NYSEG concedes in one portion of its memorandum of law that FERC’s denial of its petition, insofar as it requested FERC to direct PSC to take action, may be unre-viewable to the extent that it is considered a decision by FERC not to take enforcement action against PSC. However, NY-SEG also argues in the alternative that PURPA contains “meaningful standards” by which FERC’s failure to act against PSC can be measured inasmuch as the statute prohibits rates in excess of avoided costs. As noted by Saranac, PURPA is not self-implementing, it is a “regulatory statute,” see API, 461 U.S. at 417, 103 S.Ct. 1921, which takes meaning and authority from its attendant regulations. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (“The power of an administrative agency to administer a congressionally created ... program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” In such case “there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.”). Because Congress merely announced the goal of promoting the development of alternative energy sources in PURPA and left the details of how to do so to FERC, it cannot be said that PURPA provides “meaningful standards for defining the limits” of FERC’s enforcement discretion. Heckler v. Chaney, 470 U.S. at 834, 105 S.Ct. 1649. PURPA’s prohibition against enactment of rules which require a utility to pay more than avoided costs for purchases is simply insufficient to meet this standard. Thus, NYSEG is not entitled to APA review of FERC’s determination not to take enforcement action against PSC. NYSEG alleges, however, that its claims against FERC are more broad. To wit, it seeks APA review of FERC’s announcement of the “continuous challenge rule” in the context of denying its administrative petition. NYSEG is correct in asserting that generally, agency “rule[sj” must be subjected to a notice and comment period before taking effect. 5 U.S.C. § 553. An agency such as FERC which promulgates a new rule “without observance of procedure required by law” has violated the APA. 5 U.S.C. § 706(2)(D). However, the notice and comment provisions of Section 553(b)(A), do not apply “to interpretive rules [or to] general statements of policy.” Zhang, 55 F.3d at 745. The distinction between legislative and interpretive rules is sometimes difficult to apply: In distinguishing between the two types of rules, the central question is essentially whether an agency is exercising its rule-making power to clarify an existing statute or regulation, or to create new law, rights, or duties in what amounts to a legislative act. Since legislative rule-making involves [an] agency’s delegated power to make law through rules, it is subject to the public participation and debate that notice and comment procedures provide. Legislative rules have the force of law.... Interpretive rules, on the other hand, do not create rights.... A rule is interpretive ... if it attempts to clarify an existing rule but does not change existing law, policy, or practice. Id. (internal quotations and citations omitted). No fair view of FERC’s explanation that, as an alternative basis for denying NYSEG’s underlying petition, it would not invalidate PURPA contracts which had not been challenged from the outset could characterize it as “legislative.” FERC neither created nor denied new rights, law or policy with this statement. Indeed, it is clear that the alleged “continuous challenge rule” is no more than FERC’s reiteration of its “general policy ‘against invalidating contracts for which a PURPA-based challenge was not timely raised— that is, before the contracts were executed,’ so as not ‘to upset the settled expectations of parties to, and to invalidate any of their obligations and responsibilities under, such PURPA sales contracts.” Connecticut Valley Elec. Co. v. FERC, 208 F.3d 1037, 1046 (D.C.Cir.2000) (quoting Connecticut Valley Elec. Co. v. Wheelabrator Claremont Co., 82 F.E.R.C. ¶ 61,116, at 61,419-20, 1998 WL 64136 (1998)). FERC “reasonably infers the parties’ settled expectations from the terms of their contract; either party may avoid such an inference by including a specific reservation in its contract or by challenging the validity of a contract provision at the time it executes the contract.” Id. FERC’s application of its “general rule inferring the settled expectations of the parties to a contract from the terms of their agreement” was not a legislative action, but merely interpretive, and thus “not arbitrary or capricious” pursuant to the APA. Id. at 1047. NYSEG also claims that its APA claims against FERC are not barred by Heckler v. Chaney because it seeks review of both FERC’s failure to order PSC to enforce PURPA in the context of NYSEG’s PPAs with Saranac and Lock-port and FERC’s failure to take such action itself by way contractual or regulatory amendment. In the Court’s view, whether it disputes FERC’s failure to direct PSC to act or FERC’s own failure to act, NYSEG’s complaint clearly challenges FERC’s failure to “enforce” PURPA’s alleged rate cap, a matter reserved to the agency’s remedial discretion and not reviewable under the APA. Heckler v. Chaney, 470 U.S. at 831, 105 S.Ct. 1649. Assuming, however, that there is a meaningful distinction between FERC’s decision not to compel PSC to relieve NYSEG of its obligation to pay more than avoided costs for QF purchases and FERC’s decision not to take such action itself, FERC’s order does not violate the APA as a matter of law. Under the APA, a party “aggrieved” by an agency must show the agency’s action was “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). At the outset, the Court questions whether PURPA even requires FERC to “enforce” PURPA in the manner asserted by NY-SEG. According to NYSEG, the overriding purpose of PURPA was to ensure reasonable rates for electric consumers and rates not in excess of avoided costs for utilities. Thus, NYSEG argues that FERC’s failure to cap NYSEG’s payment to Saranac and Lockport at avoided costs is a failure to enforce PURPA. The Supreme Court has disagreed with NYSEG’s characterization of PURPA’s core purpose, stating that the focus of Title II or Section 210 of PURPA is “to encourage the development of cogeneration and small power production facilities” by addressing “problems imped[ing] the development of non-traditional generating facilities.” FERC v. Mississippi 456 U.S. at 750, 102 S.Ct. 2126. “In other words, [Section 210] reflects, predominantly, solicitude for certain types of producers rather than for the consumers who must pay their rates.” Connecticut Valley, 208 F.3d at 1011. Thus, when NYSEG argues that Section 210 of PURPA requires FERC to ensure that PPA rates are just and reasonable and less than a utility’s avoided costs, “it is correct only in the limited sense that the Commission is required to promulgate regulations to that effect.” Connecticut Valley, 208 F.3d at 1043. “[FERC] satisfied that obligation when it promulgated 18 C.F.R. § 292.304(a)(2)” which limits PPA rates to a utility’s avoided costs. Id. Likewise, when NYSEG asserts that FERC ignores PURPA by condoning PPA rates which exceed NYSEG’s avoided costs, it is correct only in the sense that PURPA forbids FERC from creating rules which mandate that utilities pay more than avoided costs. The Court disagrees with NYSEG’s contention that PURPA requires FERC to take an active role in monitoring its regulations and QF contracts pursuant to PURPA to ascertain no utility pays more than avoided costs for purchases. FERC fulfilled its obligations under PURPA when it promulgated rules to “encourage cogeneration ... which rules require electric utilities” to offer to buy electric energy from and sell electric energy to QFs. 16 U.S.C. § 824a-3(a). FERC fulfills its continuing obligations under PURPA by “re-vis[ing]” the rules “from time to time” as necessary to accomplish these purposes. Id. Consequently, FERC’s refusal to modify or waive its rules retrospectively to ascertain that NYSEG, an electric utility, is not disadvantaged by a PURPA contract is not a refusal to “enforce” PURPA. FERC’s failure to act on NYSEG’s petition — to the extent that NYSEG asked FERC to take direct action to relieve it from the alleged illegal rates in the Sara-nac and Loekport contracts — may be characterized simply as refusal to do more than it was required to do by statute, that is, implement and periodically revise regulations to encourage cogeneration. As such, FERC’s actions did not exceed its authority or act in contravention of the law when it declined to “enforce” PURPA in the manner requested by NYSEG. In Connecticut Valley, the plaintiff utility made the same arguments that NYSEG makes here, that is, Section 210(b) of PURPA expressly requires FERC to “balance the interests of consumers against those of producers” and ensure PPA rates do not exceed a utility’s avoided costs. 208 F.3d at 1045. Connecticut Valley argued there, as NYSEG does here, that FERC’s failure to do so violated PURPA, the FPA and the APA. The court disagreed, noting that FERC’s only obligations under Section 210 of PURPA were to promulgate and periodically revise its regulations. Id. at 1043. Thus, FERC’s refusal to rescind Claremont’s QF status or reform the contracts which allowed Claremont to collect more than Connecticut Valley’s avoided costs for the facility’s gross output “[could] not be a violation of § 210 [of PURPA].” Id. Rather, FERC’s decision not to take any action in response to Claremont’s apparent violation of § 3(17)(C)(ii) was merely an “announcement of the position it would take in any future enforcement action that [Connecticut Valley] might bring, ... namely that it will not seek to remedy violations of § 210 arising from [the SPP’s] sale of gross output under a contract entered into prior to [FERC’s] decision in Turners Falls[,1991 WL 501859].” Id. The Court also determined that FERC’s “grandfathering” of Claremont’s PPA with Connecticut Valley in the face of the clear language of the FPA which disqualifies any QF which sells more than its net output was within its discretion. “The breadth of agency discretion is, if anything, at [its] zenith when the action assailed relates primarily not to the issue of ascertaining whether conduct violates the statute, or regulations, but rather to the fashioning of policies, remedies, and sanctions.” Id. at 1044 (quoting Niagara Mohawk Power Corp. v. Federal Power Commission, 379 F.2d 153, 159 (D.C.Cir.1967); Louisiana Pub. Serv. Comm’n v. FERC, 174 F.3d 218, 225 (D.C.Cir.1999)). “In other words, the Commission ordinarily has remedial discretion, even in the face of an undoubted statutory violation, unless the statute itself mandates a particular remedy.” Id. (citing Towns of Concord, Norwood & Wellesley v. FERC, 955 F.2d 67, 72-73 n. 8 (D.C.Cir.1992) (FERC’s refusal to refund rates charged by utility in excess of filed rates within agency’s remedial discretion despite towns’ argument that their right to be charged no more than filed rates pursuant to FPA “ceased to exist” unless “backed up by a remedy” and FERC’s refusal to order refunds was tantamount to authorizing utility to violate FPA’s “filed rate doctrine”)). Finally, the Court found in Connecticut Valley that FERC did not abuse its remedial discretion pursuant to the APA by deciding not to revoke Claremont’s QF status or provide any alternative relief since the relevant statutory purpose of PURPA was to “encourage the development of non-traditional generating facilities.” 208 F.3d at 1045. The Court rejected Connecticut Valley’s arguments that PURPA required FERC to consider the harm to consumers in declining to take action against Claremont because PURPA’s requirement that “rates for purchases ... shall be just and reasonable to the electric consumers of the electric utility and in the public interest ...” finding this statutory provision was directed only to FERC’s exercise of rulemaking authority over the rates utilities must pay QFs for power. Id. (quoting 16 U.S.C. § 824a-3(b)). Since the Supreme Court in API already determined that the full avoided cost rule satisfies the requirements of 16 U.S.C. § 824a-3(b), “[t]he Commission did not abuse its discretion when it omitted explicitly to consider anew the interests of consumers.” Id. Thus, the Court finds NYSEG’s claim that FERC’s failure to act on its petition pursuant to its authority under PURPA and the FPA violates the APA is deficient as a matter of law. Even if this were not true, FERC has no power — under either PURPA or the FPA — -to revise, rescind or otherwise alter the force and effect of the Saranac and Lockport agreements. As discussed above, PURPA does not require or authorize FERC to take an active role in monitoring the rates in QF contracts to ensure they are “just and reasonable.” 16 U.S.C. § 824a-3(b)(l). Indeed, PURPA expressly exempts QFs from this very type of scrutiny associated with rate regulation under the FPA. See 16 U.S.C. § 824a-3(e). NYSEG recognizes as much in arguing that “FERC’s regulations currently exempt QFs from FPA section 206, which directs FERC to modify contract rates if it determines that such rates are unjust and unreasonable.” NYSEG Brief, p. 25 (emphasis in original). Nevertheless, NYSEG argues that FERC “can simply change its rules to effectuate Congress’ intent to charge ratepayers only avoided cost for QF power.” Id. at p. 27. NYSEG cites a FERC decision in which the agency allegedly noted that “cogeneration no longer needs to be encouraged.” NYSEG Brief, p. 27 (citing California, 70 F.E.R.C., at 61,675). According to NYSEG, utilities “have taken a back seat to independent power production.” I'd Thus, NYSEG argues PURPA’s mandate that: 1) FERC “from time to time ... revise” its rules; and 2) FERC’s obligation to exempt QFs “in whole or part” from FPA regulation as required “to encourage cogeneration,” provide the agency with the authority to modify its rules “to the extent necessary for FERC to make the rates in [the Sara-nac and Lockport] agreements comport with the ‘just and reasonable’ and avoided cost standards.” NYSEG Brief, at p. 27, n. 42. The Court does not deem NYSEG’s underlying petition as sufficient to invoke the rulemaking authority of FERC since NYSEG made no reference to Section 553(e) of the APA therein and its requests for modification or waiver of PURPA rules were “too situation specific and too informal” in that they merely requested FERC take action to relieve it of the Saranac and Lockport agreements. South Hills, 864 F.2d at 1084. To the extent that NY-SEG’s petition can be deemed one for rule-making, FERC’s refusal to reconsider its regulations was not violative of the APA. Review of PURPA’s legislative history as well as decisions of courts which have resolved disputes based on PURPA suggests that Congress could not have intended FERC to have the power to revisit its exemption regulations piecemeal on a QF by QF or PPA by PPA basis retrospectively. Thus while the PURPA language on which NYSEG relies might conceivably grant FERC authority to deem FPA exemption for QFs unnecessary “in whole or part,” in the context of general rulemaking proceedings to amend its 1980 regulations, it cannot be reasonably read to authorize FERC to withdraw FPA exemption from individual QFs thereby invalidating rate terms in existing purchase contracts. Nor could FERC revoke FPA exemption from all QFs in a general rule-making and then apply the revised rules retroactively to the Saranac and Lockport agreements. Such action by FERC would fly in the face of PURPA’s core purpose which is to encourage cogeneration. Moreover, retroactive rule-making by an agency is prohibited unless Congress expressly conveys this power. See Bowen v. Georgetown Univ. Hosp., 488 U.S. at 208, 109 S.Ct. 468. PURPA’s prohibition against enactment of rules which require a utility to pay more than avoided costs for purchases is simply insufficient to overcome the presumption against retroactive rulemaking. See Landgraf v. USI Film Products, 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) (although statute does not operate retrospectively simply because it “upsets expectations based in prior law,” every statute which takes away or impairs vested rights acquired under existing law is impermissi-bly retrospective) Contrary to NYSEG’s arguments, retroactive rulemaking is not authorized here based on the patent “illegality” of: 1) 18 C.F.R. § 292.304(b)(5) which allows Saranac and Lockport to collect a rate in excess of avoided costs because it is based on estimated LRACs in a long-term PPA; and 2) the PPA rates themselves because QFs have no ‘Vested interest” in rates which violate PURPA. As discussed above, FERC’s regulations, which account for and forgive a rate in excess of avoided costs in NYSEG’s very circumstances, are not illegal and QFs are entitled to rely on purchase rates in long-term PPAs even if they violate PURPA’s rate cap. See Connecticut Valley, 208 F.3d at 1043-44; Indep. Energy Producers Assoc., Inc. v. California Public Utilities Comm’n, 36 F.3d 848, 858-59 (9th Cir.1994) (“IFF”) (federal regulations provide that QFs are entitled to “lock in” energy sales at an avoided cost rate calculated at the time the contract is signed even if the utilities’ avoided costs are lower than estimated at the time the energy is delivered); Smith Cogeneration Management, Inc. v. Corp. Comm’n, 863 P.2d 1227, 1240 (Okla.1993) (cogenerator which chooses to set purchase rate based on avoided costs in long-term PPA as estimated at time contract is signed is entitled to receive benefits of contract even if, due to changed circumstances, contract price for power at time of delivery is unfavorable to utility). In sum, this Court is without subject matter jurisdiction to entertain any of NY-SEG’s claims against FERC. 3. Statute of Limitations Assuming any of NYSEG’s claims is not fatally flawed by an absence of subject matter jurisdiction, FERC, along with Saranac and Lockport, also argue that NYSEG’s action should be dismissed on statute of limitations grounds since the utility failed to seek review of FERC’s avoided cost rules at the time they were promulgated in 1980. According to Saranac and Lockport, an aggrieved party has sixty (60) days to petition for judicial review of a final order of FERC under the FPA and/or six (6) years to challenge an agency rule under the APA. See Blassingame v. Secretary of Navy, 811 F.2d 65, 70 (2d Cir.1987) (six-year statute of limitations applied to suits under APA w