Cities & Villages of Wisconsin v. Federal Energy Regulatory Commission

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

D.H. GINSBURG, Circuit Judge:

Coal supply contracts routinely contain a “take-or-pay” provision, under which the purchaser agrees that if it does not take delivery of a minimum amount of coal during each month or year of the contract term, it will pay the coal supplier part of the price of the coal not taken. In 1986 and 1987, Northern States Power Company (Minnesota) paid approximately $10 million to Westmoreland Resources, Inc., pursuant to invoices for minimum take payments. Because Northern (Minnesota) participates in a system-wide…