Chemical Bank v. Washington Public Power Supply System

666 P.2d 329, 99 Wash. 2d 772, 53 P.U.R.4th 1, 1983 Wash. LEXIS 1580
CourtWashington Supreme Court
DecidedJune 15, 1983
Docket49186-1
StatusPublished
Cited by81 cases

This text of 666 P.2d 329 (Chemical Bank v. Washington Public Power Supply System) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chemical Bank v. Washington Public Power Supply System, 666 P.2d 329, 99 Wash. 2d 772, 53 P.U.R.4th 1, 1983 Wash. LEXIS 1580 (Wash. 1983).

Opinions

Brachtenbach, J.

The Washington Public Power Supply System (WPPSS) issued revenue bonds to obtain funds to construct two nuclear generating plants known as WNP-4 and WNP-5. Bonds in the face amount of approximately $2.25 billion have been issued; repayment with interest will cost approximately $7.2 billion. Chemical Bank is the trustee for the bondholders.

Construction of the two plants was undertaken. On January 22, 1982, WPPSS terminated construction of both plants. At that time WNP-4 was approximately 24 percent completed and WNP-5 approximately 16 percent completed. Costs to date had almost reached the original estimated total cost for complete construction of both plants. WPPSS alleges that termination was necessary due to its inability to obtain adequate financing to complete the projects.

Chemical Bank brought a declaratory judgment action against WPPSS and the participants (defined hereafter) seeking a determination that the participants owe to WPPSS sufficient funds to pay the bonds, with interest. In general WPPSS has responded to the suit by substantially agreeing with Chemical Bank as to the rights and obligations of the various parties. Most of the participants, however, have interposed numerous defenses to any payment obligation.

The pleadings framed numerous issues, some of which have been determined by the trial court on motions for partial summary judgment. We granted discretionary review on limited issues on which the trial court granted summary judgment in favor of the bond trustee and stayed further trial on other issues until this appeal was decided. On some of those issues we reverse.

To understand the complex issues, a recital of facts is necessary. WPPSS is a "joint operating agency" established [777]*777in 1957 under RCW 43.52. It is a municipal corporation. RCW 43.52.250. Its members are 19 public utility districts and four cities, Ellensburg, Richland, Seattle and Tacoma. It has authority to acquire, build, operate and own power plants and systems for the generation and transmission of electricity. RCW 43.52.300. WPPSS also has authority to issue revenue bonds payable from the revenues of the utility properties operated by it. RCW 43.52.3411. It may not levy taxes or issue general obligation bonds. RCW 43.52-.391.

In the early 1970's WPPSS started construction of three nuclear generating projects, WNP-1, WNP-2 and WNP-3. Those projects were developed in conjunction with a number of participating public utilities from several northwestern states, including Washington. In 1974 WPPSS decided to construct two additional plants, WNP-4 and WNP-5, financing of which is the subject of this litigation. WNP-4 is owned entirely by WPPSS; WNP-5 is owned 90 percent by WPPSS and 10 percent by Pacific Power and Light Company, a privately owned utility.

Besides WPPSS and Pacific Power and Light Company, there are 88 "Participants" in these two projects: 9 Washington cities, 19 Washington public utility districts, 1 Washington irrigation district, 7 Oregon cities, 4 Oregon peoples utility districts, 5 Idaho cities, and 43 rural electric cooperatives, of which 13 are in Washington. The remainder of the rural electric cooperatives are in Idaho, Montana, Nevada, Oregon and Wyoming. Each of the participants in WNP-4 and WNP-5 signed an identical 63-page "Participants' Agreement", dated July 14, 1976.

A 117-page "Bond Resolution" was adopted by WPPSS on February 23, 1977, providing a plan for the construction of both plants and providing for the issuance of revenue bonds.

Each Participants' Agreement provided that "Supply System hereby sells, and the Participant hereby purchases, its Participant's Share of Project Capability."

"Project Capability" is defined in section l(v) of the [778]*778agreement as:

the amounts of electric power and energy, if any, which the Projects are capable of generating at any particular time (including times when either or both of the Plants are not operable or operating or the operation thereof is suspended, interrupted, interfered with, reduced or curtailed, in each case in whole or in part for any reason whatsoever), less Project station use and losses.

The Participants' Agreement requires each participant to pay monthly its proportionate share of a "Billing Statement" issued annually by WPPSS and based upon an "Annual Budget." The "Annual Budget" is to be adopted by WPPSS commencing with the "Date of Continuous Operation" (defined in effect as when the plant is ready to be operated and the output scheduled on a commercial basis) or the date 1 year after the termination of a project. The Bond Resolution in turn similarly requires WPPSS to collect and set aside funds sufficient to make payments on the bonds. Termination thus established a trigger date for various payments, and gave rise to this lawsuit.

The Participants' Agreement purports to require payment to WPPSS whether or not the projects are ever completed, operable or operating. Specifically, section 6(d) provides:

The Participant shall make the payments to be made to Supply System under this Agreement whether or not any of the Projects are completed, operable or operating and notwithstanding the suspension, interruption, interference, reduction or curtailment of the output of either Project for any reason whatsoever in whole or in part. Such payments shall not be subject to any reduction, whether by offset or otherwise, and shall not be conditioned upon the performance or nonperformance by Supply System or any other Participant or entity under this or any other agreement or instrument, the remedy for any nonperformance being limited to mandamus, specific performance or other legal or equitable remedy.

The Bond Resolution requires WPPSS to collect charges for electricity and capability, which are adequate to provide for payment of the revenue bonds "whether or not the gen[779]*779eration or transmission of power ... is suspended, interrupted or reduced for any reason whatever ..."

Thus, if the agreements are valid, and subject to interpreting the contract, the participants collectively could pay approximately $7 billion for nuclear plants which will never generate any electricity. Ultimately the ratepaying consumers of the participants would pay for the nonexistent electricity.

The method of financing WNP-1, 2 and 3 differs from that involved in WNP-4 and 5. The Bonneville Power Administration, a federal agency, facilitated financing of the first three plants through complex "net-billing" agreements that allocated the risk of noncompletion to the federal agency. Springfield v. Washington Pub. Power Supply Sys., No. 82-1387-RE, slip op. at 12-13 (D. Or. April 27, 1983). Since Judge Redden concluded that net billing only requires the participants to pay for power as it is provided, Springfield at 12, those projects apparently may be characterized as contracts for the purchase of power.

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Bluebook (online)
666 P.2d 329, 99 Wash. 2d 772, 53 P.U.R.4th 1, 1983 Wash. LEXIS 1580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chemical-bank-v-washington-public-power-supply-system-wash-1983.