Full opinion text
MEMORANDUM — DECISION AND ORDER MORDUE, District Judge. I. Introduction The present matter arises in substantial part from the Public Utilities Regulatory Policies Act (“PURPA”), codified at 16 U.S.C. § 824a-3. PURPA was intended by Congress to promote long-term economic growth by reducing the nation’s reliance on oil and gas, to encourage the development of alternative energy sources and thereby to 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). 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). In an effort to apply the tenets of PURPA to the states, Congress also directed that each state regulatory authority implement the rules prescribed by FERC pertaining to electric utilities’ obligation to purchase power from QFs. See 16 U.S.C. § 824a-3(f). Thus, in 1980, the New York State legislature enacted New York Public Service Law § 66-c, which provided that the defendant New York Public Service Commission (“PSC”) would require state regulated electrical utilities to enter into long-term contracts, a/k/a power purchase agreements (“PPAs”), for the purchase of electricity from alternative energy sources, including cogeneration facilities. See N.Y.Pub.Serv.Law § 66-c. New York’s definitions of a QF “overlapped aspects of the federal definitions, but [were] not identical thereto.” Consol. Edison Co. of New York, Inc. v. PSC (“Consol. Edison I”), 98 A.D.2d 377, 380, 471 N.Y.S.2d 684 (3d Dep’t 1983) (citing N.Y.Pub.Serv.Law § 2(2-a) and (2-b)). Generally, however, “those facilities that qualified] under PURPA ... also qualified] under the [Pub.Serv.Law.]” Consol. Edison Co. of New York, Inc. v. PSC (“Consol. Edison II”), 63 N.Y.2d 424, 432, 483 N.Y.S.2d 153, 472 N.E.2d 981 (1984). Furthermore, Section 66-c granted PSC authority to oversee the contracting process and set the purchase rate for long-term PPAs. See id. The New York law did not adopt PURPA’s “avoided cost” ceiling for purchases, however. In 1981, Section 66-c was amended to require PSC to establish a minimum sales price for power purchased from state qualifying QFs of at least six cents per kilowatt hour (“kwH”). See N.Y.L.1981, ch. 843, § 9. The amendment, commonly referred to as the “Six-Cent Law,” did not apply to federally qualified QFs, but as referenced above, most entities qualified as QFs under state law also qualified under PURPA. Effective July 24, 1992, New York’s legislature once again amended § 66-c of the Public Service Law and partially repealed the Six-Cent Law. The amendment preserved the minimum rate, however, for: any contract fully executed by the parties and filed with the [PSC] on or before [June 26, 1992] and (i) providing for the purchase of electricity at such minimum sales price; or (ii) providing for the purchase of electricity at a utility tariff rate referencing a statutory minimum sales price; or (iii) providing for the reconciliation or recalculation of such contract’s purchase price by comparison to such statutory minimum sales price or. tariff rate, for the duration of any such contract and performance thereunder, provided however, that such minimum sales price shall be implemented in accordance with the policies and conditions established by [PSC.] N.Y.Pub.Serv.Law § 66-c(2) (McKinney 1996 Supp.). The amendment also “grandfathered” QFs which had obtained the legal right to receive the statutory minimum of six cents per kwH by way of a final, unappealable judgment of a New York State court prior to January 1, 1987. See id. Plaintiff, Niagara Mohawk Power Corporation (“Niagara”), a traditional electrical utility, brings the present action principally to obtain relief from eleven long-term contracts with various QFs, none of which are parties in this case. In each instance, Niagara’s PPA requires it to pay for energy purchased from QFs at six cents per kwH as required by the N.Y.Pub.Serv. Law. According to Niagara, its payments under the eleven PPAs in question will significantly exceed its “avoided costs” by approximately $93 million over the terms of the agreements unless the contracts, or the orders and requirements on which they are based, are “revoked or revised to comply with federal law” which limits rates for QF purchases, to a utility’s “incremental” or avoided costs. See 16 U.S.C. § 824a-3(b). II. Procedural and Regulatory History A. PURPA Regulations 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. & Cogeneration Facilities, Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed.Reg. 12214 (Feb. 25, 1980). In Am. 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 rules 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 Am. Paper Inst., Inc. v. Am. 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, 103 S.Ct. 1921. 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, 103 S.Ct. 1921 (citing Small Power Prod. & Cogen-eration Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed.Reg. at 12222-12223). B. Netu York Legal and Administrative Proceedings PSC adopted rules to implement both PURPA and Section 66-c of the N.Y.Pub. Serv.Law 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) (commonly referred to as “Opinion 82-10”). There, PSC set forth generic guidelines for calculation of a utility’s avoided costs. PSC ordered all utilities to file estimated long-run avoided costs (“LRACs”) a/k/a “buyback” tariffs designed to implement PURPA and N.Y.Pub. Serv.Law § 66-c. PSC further directed that New York utilities such as Consolidated Edison Company of New York, Inc. (“ConEd”) must thereafter offer to purchase electric energy from QFs which were qualified under either PURPA or Section 66-c, or both, at a rate of least six cents per kwH. Opinion 82-10 also directed that QFs be paid the greater of the six-cent rate or the utility’s avoided cost rate as set forth in its buyback tariffs. ConEd challenged both PSC’s requirement that it make purchases from QFs which only qualified under the Public Service Law and that it pay six cents per kwH pursuant to Article 78 of N.Y.Civ.Prac.L & R.. The utility argued that PURPA preempted the Six-Cent Law to the extent that it required utilities to pay more than its avoided costs for QF purchases. See Consol. Edison I, 98 A.D.2d at 380, 471 N.Y.S.2d 684. ConEd also contended that the FPA pre-empted PSC from compelling utilities to purchase power from purely state qualifying QFs since FERC has exclusive jurisdiction over sale of energy at wholesale in interstate commerce. Niagara participated in the case as amicus curiae. The Appellate Division reversed PSC’s order which implemented the Six-Cent Law, finding it was contrary to and pre-empted by federal law insofar as it required purchases in excess of the avoided cost rate established by PURPA and FERC regulations. The court also modified PSC’s determination by holding that New York could only require ConEd to make purchases from QFs which qualified under PURPA. In the court’s estimation, the required purchase of electricity from purely state qualifying QFs fell impermis-sibly under the pre-emptive blanket of the FPA. PSC filed an appeal of the Appellate Division’s determination in Consol. Edison I. While awaiting decision by the Court of Appeals, PSC continued to direct utilities to sign contracts at the six-eent rate, but included provisions in said contracts to eliminate the statutory minimum if PSC lost on appeal. Niagara requested that one QF contract with Energy Oil, Inc., which was signed prior to the Appellate Division’s decision in Consol. Edison I, but not forwarded for approval by PSC until after the notice of appeal was filed, be expressly conditioned on the outcome of the appeal. PSC declined to reformulate the contract but granted Niagara’s request to obtain full recovery of the cost of the contract with Energy Oil, Inc. from its ratepayers. See Niagara Mohawk Power Corp.’s Request for Approval of a Purchase Agreement unth Energy Oil, Inc. & Full Recovery of Purchase Costs via the Fuel Adjustment Clause (memorandum filed PSC session of March 28, 1984). Niagara did not appeal this order. Following PSC’s order that utilities file proposed purchase or “buyback” tariffs designed to implement PURPA and Public Service Law § 66-c in Opinion 82-10, Niagara proposed its buyback tariff which stated that QFs should be required to elect the statutory minimum of six cents per kwH should this rate exceed the utility’s estimated LRACs. PSC rejected this proposal, reaffirming its directive in Opinion 82-10 that QFs be paid the higher of the two rates. See On-Site Generation Proceeding — Niagara Mohawk Power Corp.’s Proposed Buyback Tariff (Order Concerning Proposed Tariff), PSC Case No. 27674, 23 N.Y.P.S.C. 5204, 5227 (September 30, 1983). Niagara did not appeal this order. PSC thereafter approved Niagara’s estimated LRACs, see Niagara Mohawk Poiver Corp. — Long-run Avoided Costs (Order Endorsing Settlement & Establishing Policy on Long-Run Avoided Costs), PSC Case No. 28793, 24 N.Y.P.S.C. 5583, 5590, 1984 WL 249063 (October 12, 1984), but stated that unless it lost the appeal of Consol. Edison I, Niagara’s minimum QF contract rate would be six cents per kwH. Again Niagara did not appeal this order. Less than two weeks later, PSC did prevail when the Court of Appeals modified the Appellate Division order in Consol. Edison II finding that PURPA did not pre-empt PSC regulation requiring electric utilities to purchase power from federally qualifying QFs at a rate in excess of avoided cost. See 63 N.Y.2d at 433, 483 N.Y.S.2d 153, 472 N.E.2d 981. Essentially, the court determined after review of the statute’s legislative history — particularly FERC’s 1980 preamble to PURPA rules in which it suggested that states were free to impose rates in excess of avoided cost — that PURPA’s avoided cost ceiling was the maximum rate the federal government could require in the context of encouraging alternative power production. See Consol. Edison II, 63 N.Y.2d at 435, 483 N.Y.S.2d 153, 472 N.E.2d 981. After determining that N.Y.Pub.Serv. Law § 66-c furthered, rather than hindered, PURPA’s objective by enhancing the bargaining power of QFs through a guaranteed rate of six cents per kwH, the court rejected ConEd’s argument that a second equally compelling objective of PURPA was to avoid consumer-ratepayer subsidies of QFs. See id. at 437, 483 N.Y.S.2d 153, 472 N.E.2d 981. Citing the Supreme Court’s then recent decision in API, supra, the court held that the impact of the state-imposed rate on costs to consumer ratepayers was “but one factor that FERC was obliged to consider when it established avoided costs as the maximum rate to be imposed by Federal authorities.” Id. The court noted the Supreme Court’s acceptance of FERC’s explanation that “it was more important that the rate ‘provide a significant incentive for a higher growth rate’ and that the resulting decreased reliance on fossil fuel would benefit ratepayers and the nation as a whole.” Id. (citing API, 461 U.S. at 414, 103 S.Ct. 1921 (quoting Small Power Prod. & Cogeneration Facilities; Regs. Implementing Section 210 of [PURPA], Order No. 69, 45 Fed. Reg. at 12222)). The court then reasoned “[s]imilarly, while it is recognized that ra-tesavings may not be achieved for consumers under [the Six-Cent Law] because the ... per kilowatt hour rate may at times exceed current avoided costs, ... the rate does nevertheless further PURPA’s objective because it encourages alternate energy production, and in a manner suited to the needs of this State.” Id. at 438, 483 N.Y.S.2d 153, 472 N.E.2d 981. Based on the foregoing, the Court of Appeals held that state regulation in the field was “not supplanted by PURPA but could be used to expand the federal PURPA-based incentives.” Id. at 436, 483 N.Y.S.2d 153, 472 N.E.2d 981. In sum, the court held that PSC had the authority to require utilities to offer to purchase power from federally qualified QFs, including those that qualified under both PURPA and New York law, at a minimum rate of six cents per kwH in accordance with § 66-e of the Pub.Serv.Law. The court, however, did affirm the holding of the Appellate Division insofar as it deemed PSC regulations which required utilities to offer to purchase power from purely state qualifying QFs pre-empted by the FPA. PSC had argued that such sales were not pre-empted because the FPA only prohibits state regulation of “interstate” wholesale power transactions and sales from state QFs to state utilities remained purely intrastate. The court rejected this argument finding that a sale is in “interstate commerce” if the electric energy is “transmitted from a State and consumed at any point outside thereof.” Consol. Edison II, 63 N.Y.2d at 439-40, 483 N.Y.S.2d 153, 472 N.E.2d 981 (citing 16 U.S.C. § 824(c)). The FPA was enacted to “fill the gap” left by the Supreme Court’s decision in Public Utils. Comm’n of Rhode Island v. Attleboro Steam & Elec. Co., 273 U.S. 83, 89-90, 47 S.Ct. 294, 71 L.Ed. 549 (1927), which held that states lacked power to regulate interstate sales of electricity at wholesale. See id. Rather, exclusive regulatory authority in this field was delegated to FERC under the FPA. See id. (citing New England Power Co. v. New Hampshire, 455 U.S. 331, 340, 102 S.Ct. 1096, 71 L.Ed.2d 188 (1982)). Based thereupon, the court determined that the FPA preempted any regulation by PSC of sales at wholesale in interstate commerce between a utility such as ConEd and purely' state qualifying QFs. See id. ConEd appealed the court’s refusal to find pre-emption to the United States Supreme Court but the ease was dismissed summarily for want of a substantial federal question. See Consol. Edison Co. of New York, Inc. v. PSC (“Consol. Edison III”), 470 U.S. 1075, 105 S.Ct. 1831, 85 L.Ed.2d 132 (1985). This was the only time Niagara sought judicial review of the constitutionality of the “Six-Cent Law.” Despite its objections to paying what it considered to be an unlawful minimum rate, Niagara complied with several PSC orders between 1982 and 1992 which required it to pay more than its avoided costs for QF power purchases. In lieu of appeal or challenge of these orders, Niagara was awarded, in most cases, the right to “pass through” the costs of these PPAs directly to its ratepayers. C. FERC Proceedings On July 31, 1987, Orange and Rockland Utilities, Inc. (“0 & R”), along with two other New York utilities, filed a petition with FERC for a declaratory order challenging the application of the Six-Cent Law to QF purchases. Niagara, along with Long Island Lighting Company (“LILCO”), intervened in this proceeding. In a decision which reversed its previous position as set forth in the 1980 preamble to PURPA regulations, FERC issued a prospective order on April 14, 1988, holding that in light of changes which had occurred in the industry since 1980, states thereafter could not impose any rate for sales by QFs to utilities in excess of avoided cost. See Orange & Rockland Utils., Inc. (“O & R I”), 43 F.E.R.C. ¶ 61,067, reh’g denied, 43 F.E.R.C. ¶ 61,546, 1988 WL 244978 (1988). However, on June 16, 1988, FERC stayed this prospective order, see Orange & Rockland Utils., Inc. (“O & R II”), 44 F.E.R.C. ¶ 61,546, 1988 WL 244978, reh’g denied, 44 F.E.R.C. ¶ 61,273, 1988 WL 245475 (1988), pending judicial review or completion of a then-pending rulemaking proceeding. PSC, among others, appealed O & R I to the Second Circuit which held that judicial review was premature. See Occidental Chem. Corp. v. FERC, 869 F.2d 127, 129 (2d Cir.1989). Although the court found that FERC’s decision in O & R I “created considerable uncertainty in the industry,” it nevertheless determined that FERC had taken no final action which was ripe for review citing the June 16, 1988, order staying O & R I as well as the ongoing rulemaking proceeding. See id. at 128-29. Thus, the application of FERC’s decision in O & R I remained in limbo. On January 11, 1995, FERC issued Connecticut Light & Power Co., 70 F.E.R.C. ¶ 61,012, 1995 WL 9931 (1995) (“CL & P I”), another declaratory proceeding in which Niagara had intervened. There, FERC declared that a Connecticut statute, which, as applied, could require an electric utility such as Connecticut Light and Power Co. (“CL & P”) to purchase power from certain types of QFs (resource recovery facilities owned or operated for the benefit of municipalities) at a rate above avoided cost, was pre-empted by PURPA. See CL & P I, 70 F.E.R.C., at 61,029, 1995 WL 9931. FERC rejected the argument that the preamble to its own rules and regulations under PURPA suggested that states could set rates above avoided costs. See id. Rather, FERC stated that the language of its 1980 preamble was unsupported by legal rationale or analysis and that it could not “ascertain at this date any legal basis under which states have independent authority to prescribe rates for sales by QFs at wholesale that exceed the avoided cost cap contained in PURPA.” Id. Therefore, FERC held that the Connecticut statute, insofar as it would require rates in excess of avoided cost, was pre-empted. FERC determined that this result was “appropriately applied” to CL & P, because CL & P “ha[d] been challenging this rate since at least 1987.” Id. FERC warned it would “not entertain requests as a result of this order asking us to invalidate on this basis other, pre-existing contracts where the avoided cost issue could have been raised. The appropriate time to challenge a state-imposed rate is up to or at the time the contract is signed, not several years into a contract which heretofore has been satisfactory to both parties.” Id. Henceforth, however, FERC determined that contracts which were the product of state law or policy requiring PPA rates in excess of avoided costs would be void ab initio. See id., at 61,030, 1995 WL 9931. As referenced above, the New York legislature amended Public Service Law § 66-c in 1992 by partially repealing the Six-Cent Law. On the same day as it issued CL & P I, FERC filed Orange & Rockland Utils., Inc.(“O & R III”), 70 F.E.R.C. ¶ 61,014, 1995 WL 9930 (1995), in which it dismissed as moot O & R’s original petition (in which Niagara had intervened). There, FERC determined that its decision in O & R I had never become effective. To wit, FERC held that the April 14, 1988, order was not intended to apply retroactively and that it was almost immediately stayed by virtue oí O & R II on June 16, 1988. “The prospective application of the April 14 order coupled with the stay of that order resulted in that order never having been made effective.” O & R III, 70 F.E.R.C., at 61,034, 1995 WL 9930. As a further matter, “the statutory minimum six-cent rate which was the subject of the petition” was repealed. Id. FERC thus determined that O & R’s petition had been “overtaken by subsequent events,” was therefore moot and would be dismissed. Id. On February 10, 1995, Niagara and LILCO petitioned FERC for rehearing of both CL & PI and O & R III. In CL & P II, Niagara and LILCO objected to FERC’s decision not to apply the holding of CL & P I to other pre-existing contracts. On the other hand, several QFs objected to FERC’s determination that Connecticut was pre-empted from imposing a PPA rate in excess of avoided costs for QF purchases. Indeed, the QFs argued CL & P I could not be applied to invalidate contracts reflecting the six-cent minimum rate required by N.Y.Pub.Serv. Law § 66-c because of the Supreme Court’s dismissal in Consol. Edison III for lack of a federal question, which, they argued, was a bar to FERC’s determination on the merits of the Six-Cent Law. CL & P 11 71 F.E.R.C., at 61,152, 1995 WL 216783. The QFs contended that the Supreme Court’s dismissal in Consol. Edison III was tantamount to an endorsement of the New York Court of Appeals decision in Consol. Edison II which upheld the constitutionality of the Six-Cent Law. FERC rejected this argument finding in the first instance that “[wjhile dismissal of an appeal for want of a substantial federal question is a decision on the merits of a particular case insofar as it leaves the underlying judgment undisturbed,” it did not mean that FERC and all other subsequent courts were bound “for all time and in all cases by the New York Court of Appeals’ interpretation of the meaning and reach of PURPA.” Id. (citing Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 477 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (summary action by Supreme Court does not necessarily reflect agreement with the opinion of the court whose judgment is appealed); Anderson v. Celebrezze, 664 F.2d 554, 558-60 (6th Cir.1981) aff'd in relevant part, 460 U.S. 780, 784 n. 5, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) (to reach any other conclusion would allow parties seeking Supreme Court review to control effect of Supreme Court’s summary actions through careful structuring of appeals)). Rather, FERC determined that the Supreme Court’s dismissal on jurisdictional grounds “went only to the specific challenges presented to the Supreme Court ... only to what was necessary for the Supreme Court to decide the case; its reach went no further.” CL & P II, 71 F.E.R.C., at 61,152-53, 1995 WL 216783 (citing Anderson, 460 U.S. at 785 n. 5, 103 S.Ct. 1564). Moreover, FERC held that the Court of Appeals’ decision in Consol. Edison II relied to a great extent on the 1980 preamble to FERC’s PURPA rules, a “predicate which has now been overturned.” Id. Insofar as the arguments by Niagara and LILCO regarding FERC’s refusal to apply its pre-emption determination on the merits to parties and contracts not directly before it in CL & P I, FERC deemed its actions necessary to “avoid the substantial injustice that our determination on the merits in this proceeding might otherwise have created if applied to invalidate other, pre-existing QF contracts that [were] not involved in the present litigation.” Id., at 61,154, 1995 WL 9931. This approach is especially appropriate here given the apparent confusion created by the language contained in the preamble to our regulations. The United States District Court for the District of Connecticut, which directed CL & P to put this matter before us, for one, noted that in light of the language contained in the 1980 preamble to our regulations the law was “unsettled and conflicting.” As a consequence, some states in reliance on this preamble language have required rates that were above avoided cost for QF sales at wholesale. We have now expressly ruled that that is impermissible, and thus have cleared up the confusion that, admittedly, the language of the Commission’s 1980 preamble had a hand in creating. In light of the confusion that the preamble language created, we believe it inappropriate to entertain requests to invalidate other, pre-existing contracts where the avoided cost issue could have been raised but was not raised. Id. Importantly, FERC suggested that Niagara was merely an interested participant in CL & P’s challenge of a Connecticut statute rather than a party which had presented , its own specific factual and legal challenge to application of the Six-Cent Law. Indeed, FERC noted that based on Niagara and LILCO’s intervenor — as opposed to party — status, it had no knowledge of “precisely how many contracts and how many different projects” would be affected by its pre-emption challenge. Id., at n. 43, 1995 WL 9931. FERC thus denied the petitions for reconsideration filed by Niagara and LILCO. In O & R IV, both utilities objected to FERC’s determination that the petition filed by 0 & R in 1987 was moot and asked FERC to deem contracts with QFs set at rates above avoided cost void ab initio or at least those entered since April 14, 1988. See 71 F.E.R.C., at 61,145, 1995 WL 216782. FERC denied both petitions emphasizing that its April 14,1988, order in 0 & R I was to be applied only on a prospective basis. See id., at 61,146, 1988 WL 391404. Indeed, FERC deemed it “inappropriate at this date to agree to LILCO’s and Niagara’s requests and now make such a determination effective as to all pre-existing contracts.” Id., at 61,146-47, 1995 WL 9931. Niagara and LILCO relied on CL & P I in arguing that like the petitioner utility in that case, they had been challenging the Six-Cent Law since 1987 when 0 & R first filed its petition. Thus, the utilities contended that like the Connecticut statute, the Six-Cent Law should be found to be inconsistent with and pre-empted by PURPA. FERC disagreed noting that it had expressly declined to extend its ruling in CL & P I to pre-existing contracts where the issue of pre-emption could have been raised but was not to avoid “substantial injustice.” Id., at 61,147, 1995 WL 9931. In fact, FERC noted that it reaffirmed this determination in CL & P II on reconsideration. While FERC acknowledged that the Six-Cent Law had been under challenge since 1987, it declined to afford Niagara and LILCO the same status it had extended to CL & P. FERC reasoned in the first instance that Niagara: was and is only an intervenor in this proceeding. Niagara ... has never filed a separate petition seeking relief as to its own QF contracts. Moreover, since 1988, when [FERC] limited its order in this proceeding to future contracts, and then stayed the effectiveness of the order, Niagara ... has made no filing at [FERC] or, to our knowledge, initiated state or federal court litigation seeking to challenge the rates in its own QF contracts as violating the avoided cost requirement of PURPA. This contrasts starkly with the continuing effort by [CL & P] to challenge its contract in state court, in federal court and then at this Commission. Id. Furthermore, FERC rejected the notion that Niagara and LILCO had relied justifiably on FERC’s pre-emption determination in 0 & R I since that order was to apply only prospectively and its effectiveness was nevertheless almost immediately stayed. “For the Commission, at this late date, suddenly to act to invalidate existing contracts that expressly had not been invalidated by its earlier orders in this proceeding would not be consistent with the need to avoid substantial injustice to the parties to such contracts.” Id. D. District of Columbia Circuit Decision On April 12, 1995, Niagara petitioned the United States Court of Appeals, District of Columbia Circuit for review of FERC’s: (1) refusal to apply its decision in CL & P I to all pre-existing contracts; and (2) its dismissal of 0 & R’s petition as moot in O &R III. In NYSEG v. FERC, 117 F.3d 1478 (D.C.Cir.1997), the court dismissed Niagara’s appeal for want of jurisdiction. FERC had argued therein that the challenged orders “d[id] nothing more than announce the interpretation of the PURPA upon which [it] would rely in an enforcement action. The orders [did] not determine any factual question such as ‘whether the rates ... do or do not exceed avoided cost.’ Nor are they binding upon the district court in which any enforcement action might be pursued.” 117 F.3d at 1487-88. FERC urged the court to adhere to its determination in Indus. Cogen-erators v. FERC, 47 F.3d 1231 (D.C.Cir.1995), that Congress did not confer jurisdiction upon federal courts of appeals to review a declaratory order in which FERC interprets PURPA. See id. at 1488. Niagara countered that Indus. Cogener-ators was inapposite since each of the orders which it challenged in Niagara v. FERC “announced] a rule of general application and not [as in Indus. Cogenera-tors ], a decision limited to a specific set of facts.” Id. To wit, Niagara argued “nothing in Industrial Cogenerators suggests that the procedure for judicial review must differ because FERC eventually decided to resolve the issue in a declaratory ruling rather than through a rulemaking.” Id. Moreover, Niagara contended that the enforcement action urged by FERC as an adequate remedy was ill-suited for review of FERC’s actions since such actions were aimed at non-compliant state commissions and could not be brought directly against FERC. See id. The D.C. Circuit acknowledged that it had “expressly reserved” on the question of whether it had jurisdiction to review a FERC order promulgated under PURPA which announced a “rule of general application, not tied to a particular set of facts potentially subject to the statutory enforcement scheme.” Id. (quoting Indus. Cogenerators, 47 F.3d at 1236.) While the court agreed with Niagara that “the orders ... at issue [did] announce a rule of general application,” it answered the previously reserved question by concluding that Congress did not authorize it to review a FERC order announcing a rule of general application. Id. An order that does no more than announce the Commission’s interpretation of the PURPA or one of the agency’s implementing regulations is of no legal moment Unless and until a district court adopts that interpretation when called upon to enforce the PURPA. As a result, in the framework established by the Congress it is the district court that has been given the task of deciding in the first instance whether to adopt or reject a position advocated by the Commission. The courts of appeals accordingly do not have pre-enforcement jurisdiction to review a declaratory order that merely announces the position advocated by the FERC. Niagara v. FERC, 117 F.3d at 1488 (citing Indus. Cogenerators, 47 F.3d at 1235). In applying this rationale to the two orders of which Niagara sought judicial review, the court, held: The order issued by ... FERC in the CL & P [I] proceeding is, as we said of the order at issue in Industrial Cogener-ators, “much like a memorandum of law”; it does “nothing more than state how the FERC interprets its own regulations.” The district court in which CL & P’s suit is pending may or may not decide to defer to the Commission’s interpretation. Under the Administrative Procedure Act the district court must, of course, determine whether the Commission’s interpretation of the statute is reasonable — but that task, contrary to petitioners’ suggestion, the district court is perfectly capable of performing even if the Commission chooses not to intervene. For the court of appeals to review the order at this juncture, could set up a quite unnecessary conflict; perhaps still worse, if in another case the district court were in the circuit where review of the declaratory order was sought, the appellate court’s judgment would bind the district court and necessarily, therefore, oust that court from its role as the court of first instance in the enforcement scheme created of § 210. As we said in Industrial Cogenerators, the Congress cannot have intended that the courts of appeals review a declaratory order interpreting the PURPA when doing so would disrupt the elaborate enforcement scheme that the Congress created. Orange and Rockland is no different. The Commission’s declaratory order concerning the New York statute prescribing a six-cent rate had no legally binding effect; at most, it could have commanded some deference from a district court in a future enforcement action. Thus the petitioners ask us, when they petition for review of the order vacating the 1988 declaration, to review an order that “does nothing more than withdraw [an] ineffectual declaratory order.” As we held in Industrial Cogener-ators, we are without jurisdiction to do that. Id. at 1488-89 (citing Indus. Cogenerators, 47 F.3d at 1235). E. Niagara’s Complaint and the Present Motions One month after it filed petitions for review of FERC’s orders in CL & PII and 0 & R III, but well before the D.C. Circuit issued the above-referenced decision, Niagara filed the present complaint against FERC, PSC and the individual commissioners of the PSC which it amended in July 1995. Thereafter, New York State Electric and Gas Corporation (“NYSEG”) moved and was granted leave to intervene as a plaintiff and several QFs along with Independent Power Producers of New York, Inc. (“IPPNY”), a trade organization representing the interests of QFs statewide, later intervened as defendants. In lieu of serving answers to the amended complaint, all defendants moved to dismiss for lack of subject matter jurisdiction and failure to state a claim pursuant to Fed. R.Civ.P. 12(b)(1) and (6). After soliciting arguments from the parties as to whether she should recuse herself from determination of the case given her prior status as a PSC commissioner, and deciding that recu-sal was not required, then U.S. District Judge Rosemary S. Pooler (now a Circuit Judge for the Second Circuit Court of Appeals), to whom this matter was originally assigned, scheduled oral argument of defendants’ motions for March 4, 1996. FERC then moved to stay action in the case pending the above-referenced decision by the D.C. Circuit in Niagara v. FERC which motion Judge Pooler accepted on submittal following oral argument of defendants’ dispositive motions. On April 15, 1997, Judge Pooler granted the motion to stay the action, pending determination of the D.C. Circuit’s decision on Niagara’s petitions for review. On July 11, 1997, the D.C. Circuit issued its decision in Niagara v. FERC as discussed above. Niagara, IPPNY, and several QF inter-venors thereafter moved jointly to again stay proceedings in the Northern District of New York after Niagara entered a contingent settlement agreement involving New York’s governor, its legislature and PSC (“the Master Restructuring Agreement”) designed to restructure or terminate some of its PPAs with QFs. This Agreement was expected to resolve many of the issues in Niagara’s lawsuit against several of the parties. Based thereupon, Judge Pooler issued an order staying the action until April 15, 1998. In April 1998, Judge Pooler extended the stay to July 15, 1998, in view of lingering uncertainty as to the closing date of the Master Restructuring Agreement. Finally, on July 10, 1998, Judge Pooler signed a Stipulated Order executed by all of the parties whereby Niagara’s claims against all intervening defendant QFs were dismissed. However, Niagara’s claims regarding those six-cent PPAs which were not affected by the Master Restructuring Agreement were preserved. Thereafter, Niagara requested that in view of expiration of the longstanding stay, the Court decide the pending motions to dismiss. F. Niagara’s Present Claims In the first count of the amended complaint, Niagara alleges that PSC’s orders which implemented New York’s Six-Cent Law constitute state regulation of the wholesale sale of electric power, an area pre-empted by the FPA. Furthermore, Niagara alleges that the Six-Cent Law and PSC’s implementation of same: (1) violate PURPA and its implementing rules; and (2) violate the Supremacy Clause of the United States Constitution. In the second cause of action, Niagara asserts that FERC’s decision to refuse to apply the avoided cost limitation of PURPA and its own regulations to Niagara’s existing six-cent PPAs was arbitrary, capricious, an abuse of discretion, not in accordance with law, in excess of statutory authority and otherwise violative of the Administrative Procedure Act (“APA”). Niagara further contends that FERC’s action or inaction herein violates PURPA’s incremental cost limitation. In a letter dated August 20,1998, Niagara’s counsel advised the Court that after reviewing the remaining eleven six-eent contracts to which it is a party, which represent some 78 MWs of capacity, the utility believes it will pay approximately $93 million more than current estimates of its LRACs over the life of the agreements. While acknowledging that this figure is considerably less than the sum at stake prior to execution of the Master Restructuring Agreement, Niagara contended that the amount of money still at issue is nevertheless “substantial,” compelling it to proceed with the case. III. Discussion A. Applicable Legal Standard In addressing defendants’ motions for dismissal pursuant to Fed.R.Civ.P. 12(b)(1) and (6), the Court accepts as true all factual allegations in the amended complaint and draws all inferences from those allegations in the light most favorable to Niagara. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); McEvoy v. Spencer, 124 F.3d 92, 95 (2d Cir.1997). Dismissal is proper only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), accord Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994). B. Motions to Dismiss the Claims against FERC 1. Claims Pursuant to PURPA FERC asserts Niagara’s claim against it based on Section 210 of PURPA must be dismissed pursuant to Fed. R.Civ.P. 12(b)(6) for failure to state a claim. Nowhere in the complaint does Niagara state its legal grounds for proceeding against FERC based directly on PURPA. Indeed, its pleading simply alleges that “FERC’s refusal to apply the incremental and avoided cost limitations of PURPA and its regulations under PURPA to Niagara’s existing QF contracts constitutes a violation of the incremental cost limitation of PURPA.” See First Amended Complaint ¶ 38 (citing 16 U.S.C. §§ 824a-3(b), (d)). The former section of course provides that rates for QF purchases should not exceed a utility’s “incremental” or avoided costs while the latter provision simply defines incremental costs. Neither section provides a private right of action for a party aggrieved by FERC’s alleged failure to implement these statutory guidelines. The only right of action which appears in PURPA belongs, in the first instance, to FERC. Subsection (A) of PURPA Section 210(h)(2) authorizes FERC to enforce state implementation of its regulations against a non-compliant state regulatory authority or non-regulated utility in district court while subsection (B) allows an electric utility or QF to petition FERC to commence such an action. Only if FERC declines to do so, may the utility or QF commence its own action to force a state agency or non-regulated utility to comply with FERC’s regulations. See 16 U.S.C. § 824a-3(h)(2). Here, without citing Section 210(h) of PURPA in its complaint or alleging that it has satisfied the administrative pre-requi-site of petitioning FERC to commence an enforcement action, Niagara sues FERC itself for failure to comply with PURPA’s rate cap. As referenced above, however, the “enforcement” contemplated under the statute is of FERC regulations against non-compliant state commissions. See 16 U.S.C. § 824a-3(f), (h). Niagara “turns PURPA inside out by seeking to enforce the statute’s alleged rate cap against FERC,” see NYSEG v. Saranac Power Partners, L.P., 117 F.Supp.2d 211, 255 (N.D.N.Y.2000). Indeed, Niagara admits in its memorandum of law in opposition to defendants’ motions that an enforcement action under Section 210 of PURPA against PSC “does not bring FERC itself into court.” Thus, to the extent that Niagara’s complaint suggests it is prosecuting its claim against FERC pursuant to PURPA, though the utility appears to have disavowed this avenue of relief in favor of APA review, it must be dismissed. 2. Claims Pursuant to the APA a. Failure to State a Claim The Court agrees with defendants that because no statute clearly provides a right of review of FERC decisions interpreting PURPA, no such right exists under the APA unless Niagara demonstrates it has no other adequate remedy at law. Defendants argue that PURPA’s elaborate enforcement scheme and Niagara’s statutory right to sue PSC pursuant to Section 210(h) of PURPA is an adequate alternative remedy thus precluding judicial review. Niagara counters that it cannot get full satisfaction by suing PSC alone. To wit, it contends that “FERC’s presence as a defendant is necessary when judicial review of a FERC ruling is at issue.” Memorandum of Law of Niagara in Opposition to Motions to Dismiss (“Niagara Brief’), p. 5. However, as discussed above, subsequent to the filing of the present motions, the D.C. Circuit ruled in this very case, that FERC is not a necessary party to an enforcement action even where a district court is called upon to review the reasonableness or applicability of a regulatory interpretation by the agency. See Niagara v. FERC, 117 F.3d at 1488 (“[District court is perfectly capable of ... deter-min[ing] whether [FERC’s] interpretation of [PURPA] is reasonable ... even if [FERC] chooses not to intervene.”). Thus, to the extent that the D.C. Circuit’s decision in Industrial Cogenerators, supra, left any doubt about the adequacy of PURPA’s enforcement scheme in addressing Niagara’s claims in this case, its decision in Niagara v. FERC erased it. Since Niagara is capable of obtaining complete relief in the context of its PURPA Section 210(h) enforcement action against PSC wherein this Court is fully equipped to accept or reject FERC’s interpretation of PURPA and its regulations in CL & P I and 0 & R III, Niagara has no right to APA review of these orders. See Neto York City Employees’ Retirement Sys. (“NYCERS”) v. Sec. & Exchange Comm’n (“SEC”), 45 F.3d 7, 14 (2d Cir.1995) (litigants with remedies against parties other than administrative agency which rendered adverse determination are not entitled to APA review of said agency’s action); Marlow v. U.S. Dep’t of Educ., 820 F.2d 581, 583 (2d Cir.1987). Even if this was not true, defendants point out that the controversial orders were merely non-enforcement determinations — -that is, FERC elected not to apply its retroactive pre-emption analysis to other parties and contracts not directly before it in CL & PI and 0 & R III, even in the face of clear evidence that other QF contracts in those cases called for rates in excess of the avoided cost ceiling set forth in PURPA. According to defendants, the orders are thus unreviewable as a matter of law pursuant to Heckler v. Chaney. See 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). There, the Supreme Court stated 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. Niagara does not even attempt to rebut the presumption of unreviewability by demonstrating that PURPA contains “meaningful standards” by which FERC’s refusal to apply its reasoning in CL & P I to Niagara’s contracts can be measured. Instead, it argues that the presumption of unre-viewability does not bar its APA claim against FERC for two reasons. First, the utility contends that it is not challenging a decision “not to prosecute” by FERC. Rather, Niagara argues that it challenges FERC’s ruling concerning the application of the avoided cost rule to existing contracts. In either case, however, the inquiry focuses on FERC’s refusal to take action it is allegedly required to take pursuant to PURPA, a matter reserved to the agency’s remedial discretion and not reviewable under the APA. See Heckler v. Chaney, 470 U.S. at 831, 105 S.Ct. 1649. Thus, the Court rejects Niagara’s attempt to couch its claim as something other than challenging a non-enforcement decision by FERC. In a related argument which forecasted to some extent the D.C. Circuit’s earlier determination in this case that “the orders here at issue do announce a rule of general application,” Niagara v. FERC, 117 F.3d at 1488, Niagara contends that the FERC orders under challenge are not just decisions “concerning the allocation of enforcement resources that Heckler shields from judicial review.” Rather, Niagara asserts these orders announced rules of general applicability which “have to do with the substantive requirements of the law.” Importantly, however, in spite of this argument, Niagara does not challenge in any respect the legal conclusions reached by FERC in CL & P I regarding the “substantive requirements of the law.” Indeed, Niagara agrees wholeheartedly with FERC’s determination that PURPA preempts states from imposing QF contract rates in excess of a utility’s avoided costs. The only thing Niagara objects to is FERC’s refusal to apply this holding to its existing QF contracts, thereby invalidating them. As such, Niagara challenges nothing more than FERC’s alleged failure to “enforce” PURPA’s rate cap in the context of its QF contracts, a decision which is presumptively unreviewable. Its rebanee therefore on Edison Elec. Inst. v. U.S. Envtl. Prot. Agency (“EPA”), 996 F.2d 326 (D.C.Cir.1993) is inapposite. Even if the presence of an adequate remedy against a party other than FERC and the Court’s conclusion that FERC’s orders herein are nothing more than non-enforcement decisions do not preclude APA review, Niagara has still failed to allege an adequate claim against FERC under the APA. 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). It is true that generally, agency “rule[s]” 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, in this case, unlike the plaintiff in NYCERS, on which Niagara relies in support of its demand for APA review, Niagara does not contend that FERC violated the notice and comment provisions of Section 553(b)(A) of the APA. Rather, Niagara alleges that FERC’s decision not to provide it with the same relief granted to CL & P was unlawful. To wit, Niagara claims that FERC’s refusal “entertain requests as a consequence of this order asking us to invalidate on this basis [pre-emption of state statute which purported to require PURPA PPA rates in excess of avoided costs] other, preexisting contracts where the avoided cost issue could have been raised,” CL & P, 70 F.E.R.C., at 61,029, 1995 WL 9931, “create[s] a barrier to Niagara’s obtaining effective relief from the PSC under Section 210(f) of PURPA.” Id. at ¶ 40, 1995 WL 9981. The utility surmises that if FERC had given Niagara the relief it requested in CL & P II and O & R IV, FERC’s decisions or declaratory orders in favor of Niagara would be the equivalent of its published PURPA regulations which PSC, in turn, would be obligated to implement pursuant to Section 210(f) of PURPA. Thus, Niagara contends it would be entitled to obtain relief from PSC’s failure to implement these declaratory orders in the context of a PURPA Section 210(h) enforcement action but for FERC’s arbitrary and capricious refusal to act. Connecticut Valley Elec. Co. v. FERC, infra, is instructive on this issue. There, the plaintiff electric utility (“Connecticut Valley”) sued FERC after the Commission refused to take action on its petition to revoke the QF status of Claremont, a small power producer (“SPP”), from whom it was obligated to purchase energy pursuant to a PPA. See Connecticut Valley Elec. Co. v. FERC, 208 F.3d at 1046 (citing Connecticut Valley Elec. Co. v. Wheelabrator Claremont Co., 82 F.E.R.C. ¶ 61,116, at 61,419-20, 1998 WL 64136(1998)). Clare-mont was selling its “gross” electrical output to Connecticut Valley utility which is “all electricity produced by the facility,” as opposed to its “net” output which is gross output less the electricity used by Clare-mont in its own operations. 208 F.3d at 1040. Claremont purchased the power required for its internal operating needs directly from Connecticut Valley at a tariffed rate. By selling its gross output to Connecticut Valley at full avoided costs, Clare-mont was “in effect selling back at a significant markup the quantum of electricity it purchased from the utility for its internal operating needs.” Id. This resulted in Connecticut Valley paying more than its avoided costs for the difference Clare-mont’s net and gross output. FERC determined in a 1991 decision that under Section 3(17)(C)(ii) of the FPA, a SPP which sells more than its net output of energy cannot be a QF. See Turners Falls, Ltd. P’ship, 55 F.E.R.C. ¶ 61,487, at 62,668, 1991 WL 501859 (1991). Based on this decision, Connecticut Valley petitioned FERC in 1993 to revoke Claremont’s status as a QF, take jurisdiction over its PPA with Claremont pursuant to Sections 205 and 206 of the FPA, and either rescind the contract and retroactively determine just and reasonable rates for past sales or at least prospectively reform the contract to ensure it need only purchase Claremont’s net output going forward. Connecticut Valley, 208 F.3d at 1041. FERC refused to revoke Claremont’s QF status or provide alternative relief to Connecticut Valley because “not until Turners Falls ” was it “clear that gross sales would violate § 3(17)(C)(ii) and thus preclude QF status.” Id. at 1042 (citing Connecticut Valley Elec. Co. v. Wheelabrator Claremont Co., 82 F.E.R.C., at 61,422, 1998 WL 64136). Because many QFs had in good faith entered into long-term contracts for the sale of their gross output, and “not wanting to upset their settled expectations,” FERC adopted a remedial policy which was only partially retroactive. Id. The Commission stated it would revoke the QF status of any facility which sold in excess of its net output pursuant to a contract entered into after the issuance of Turners Falls. Id. However, Connecticut Valley’s PPA with Claremont was executed in 1987. See id. at 1041. Connecticut Valley sued asserting that FERC’s refusal to act on its petition violated Section 210 of PURPA and Section 3 of the FPA and was an abuse of FERC’s remedial discretion. The D.C. Circuit disagreed holding that FERC “reasonably infers the parties’ settled expectations from the terms of their contract” and “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. Thus, FERC’s failure to apply its determination in CL & P I retroactively to invalidate Niagara’s QF contracts which contained rates in excess of avoided costs “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.” NYSEG, 117 F.Supp.2d at 234. “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 [Niagara.]” Id. Niagara attempts to distinguish its plight from NYSEG’s by arguing that unlike the latter, it is not objecting to contract rates based on faulty avoided costs estimates which exceeded actual avoided costs over the life of the PPAs. Rather, Niagara insists the contract rates at issue herein “never complied with PURPA” because they were based upon a six-cent rate and imposed “without regard to avoided cost.” However, as the D.C. Circuit’s decision in Connecticut Valley made clear, Niagara’s argument merely highlights a distinction without a difference. The court determined in Connecticut Valley that FERC’s “grandfathering” of Claremont’s PPA with Connecticut Valley in the face of a clear statutory violation was within its discretion. Indeed, as FERC acknowledged in Turners Falls, Claremont was not even a QF within the meaning of the FPA which disqualifies any QF selling more than its net output of power. Thus, Connecticut Valley argued as Niagara does here, that its PPAs with Claremont never complied with PURPA and should be voided ab initio. However, the court found that FERC did not abuse its remedial discretion pursuant to the APA by deciding not to revoke Clare-mont’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. Of particular application here, the court noted “[t]he 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 v. Federal Power Co., 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)). Niagara relies on Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) and James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991) (“Beam”), for the proposition that “if an interpretation of federal law is applied to the parties in the case in which the interpretation is announced, it must be applied to all other cases then pending.” However, these cases relate to applying changes in the law based on evolving interpretations of the Supreme Court. Harper, 509 U.S. at 97, 113 S.Ct. 2510 (“When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.”) (citing Beam, 501 U.S. at 540, 111 S.Ct. 2439). In contrast, retroactive rulemaking by an agency such as FERC is prohibited unless Congress expressly conveys this power. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988); see also Landgraf v. USI Film Prods., 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 impermissibly retrospective). Consequently, this Court is not persuaded by Niagara’s argument that “where legal error occurs, there is at least a 'presumption of retroactive relief.’ ” To the extent that Niagara contends that FERC abused its discretion in failing to take into account “equitable considerations favoring relief for Niagara and its ratepayers,” the court in Connecticut Valley rejected similar arguments that PURPA required FERC to consider the harm to consumers in declining to take action against Claremont. The court found that 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 ...” was directed only to FERC’s exercise of rulemaking authority over the rates utilities must pay QFs for power. 208 F.3d at 1045 (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” and utilities. Id. Based on the foregoing, the Court finds Niagara’s claim that FERC’s refusal to invalidate existing QF contracts pursuant to PURPA violates the APA fails to state a cause of action upon which relief can be granted and must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). b. Subject Matter Jurisdiction Assuming any of Niagara’s claims against FERC are not fatally flawed by failure to state a claim, FERC argues, in the alternative, that this court lacks subject matter jurisdiction over Niagara’s claims. FERC contends: (1) there is no justiciable controversy because the declaratory orders at issue have no present effect on Niagara; and (2) the claims herein are not ripe for a