Continental Illinois National Bank & Trust Co. v. Washington

696 F.2d 692, 51 P.U.R.4th 463
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 11, 1983
DocketNo. CA 82-3404
StatusPublished
Cited by5 cases

This text of 696 F.2d 692 (Continental Illinois National Bank & Trust Co. v. Washington) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Continental Illinois National Bank & Trust Co. v. Washington, 696 F.2d 692, 51 P.U.R.4th 463 (9th Cir. 1983).

Opinion

CANBY, Circuit Judge:

This case involves a challenge to the constitutionality of the Washington State Energy Financing Voter Approval Act, 1981 Wash.Laws (2d Ex.Sess.) ch. 6 (“Initiative 394”), as applied to three nuclear power plants currently under construction. The initial challenge was brought by three banks1 serving as trustees for holders of bonds previously issued to finance the construction of these projects. The Don’t Bankrupt Washington Committee (“Committee”), the original proponent of Initiative 394, was permitted to intervene. The United States then filed suit challenging the Initiative on behalf of the Bonneville Power Administration (“BPA”). The Committee was also permitted to intervene in that action and the two cases were consolidated.

Plaintiffs argued that initiative 394 violated various provisions of the federal and state constitutions. The district court held that the Initiative unconstitutionally impaired existing contractual obligations to finance and complete three nuclear power plants under construction. U.S. Const. Art. I, § 10. It did not reach the additional contentions presented. We affirm.

BACKGROUND

BPA is a federal agency charged with marketing the power produced from federal hydroelectric projects in the Columbia River Basin to 147 customers in the Pacific Northwest. In the 1960’s, BPA was faced with rapidly increasing demand for power and concluded that it would be unable to meet the future needs of its customers from existing facilities. As a result, BPA embarked upon a program under which certain of its customers were to build and operate the additional power plants needed to meet the anticipated demand. One segment of the program provided for BPA’s “preference customers” (public utilities and cooperatives) to construct power projects that would be integrated into BPA’s system without BPA’s owning or operating the projects.

The Washington Public Power Supply System (“WPPSS”) is the builder of three nuclear power plants to be operated by it as part of- the BPA program. WPPSS is a municipal corporation of the State of Washington known as a “joint operating agency.”2 It is comprised of 19 public utility districts and 4 municipalities, all of which are also political subdivisions of the State. During the early 1970’s WPPSS entered various agreements to enable it to build and operate the plants. Those agreements and the provisions of state law in existence at the time they were executed contain the obligations of contract allegedly impaired by Initiative 394. The agreements fall into three categories.

The first category consists of project agreements between BPA and WPPSS governing the construction and operation of [695]*695each of the three plants.3 The project agreements allow BPA to oversee certain aspects of construction including budgets and termination. BPA is authorized to disapprove “significant action” taken by WPPSS if BPA concludes that the action is inconsistent with “Prudent Utility Practice.”4 If WPPSS and BPA are unable to agree on the proposed action, the matter is referred to an independent “project consultant.” The project consultant is authorized to resolve the dispute in accordance with the Prudent Utility Practice standard. There is little doubt that a decision not to finance the projects through to completion would be a “significant action” subject to disapproval if it did not meet the Prudent Utility Practice standard. In addition, the project agreements specifically obligate WPPSS to “use its best efforts to issue and sell bonds to finance the costs” of construction of each plant.

The second category of agreement entered by WPPSS consists of “Net Billing Agreements” between WPPSS, BPA and other “participants,” who are BPA customers. Like the project agreements, the Net Billing Agreements require WPPSS to construct and operate the plants in accordance with Prudent Utility Practice. They also make each participant liable for a share of the construction and financing costs of the project equal to that participant’s share of anticipated power output. Under the agreements, the participants assign their share of anticipated output to BPA in return for credit for an equal amount of power on their wholesale bill from BPA. BPA in turn assumes each participant’s obligation to pay its share of the construction and financing costs of the project. The result of the Net Billing Agreements, then, is that BPA receives essentially all the power 5 to be produced by the three plants, and undertakes to pay the construction and financing costs of the projécts whether or not any power ultimately is produced by the plants. Those costs BPA would presumably pass on to its ratepayers throughout the Northwest. This obligation of BPA to pay the costs of constructing the plants regardless of output makes the protections of the project agreements extremely important to BPA. The project agreements enable BPA to prevent a termination of construction by WPPSS unless that termination is consistent with Prudent Utility Practice.

The third category of agreement entered by WPPSS consists of promises to bond purchasers, made in the form of bond resolutions and the state statutes giving them effect. WPPSS issued revenue bonds, payable solely from the income derived by WPPSS from its ownership and operation of the power plants.6 The bond resolutions assured bondholders that WPPSS was “duly authorized under all applicable laws to create and issue the bonds and to adopt [the resolutions].” The authorizing section of the resolutions permitted the issuance of future bonds “in such amounts and from time to time as may be required to pay the [696]*696costs of construction.” The resolutions contain covenants by WPPSS that it would “take all lawful measures required to issue and sell” the additional bonds required to complete the project. WPPSS also agreed to “use its best efforts to issue and sell Bonds to finance the costs of the project and the completion thereof.” It covenanted that it would “proceed with all reasonable diligence to and will construct to completion the project and complete such construction at the earliest practical time.”

WPPSS’ promises to use best efforts to sell bonds and to proceed with diligence to completion are important to the bondholders, of course, because the bonds are payable from revenues produced by operation of the plants. It is true that the bondholders are also protected by BPA’s obligation under the Net Billing Agreements to pay the costs of construction including its financing, but that fact does not render the promises of completion unimportant to the bondholders. Sale of power is still an important source of repayment of the bonds. The bond resolutions themselves recognized that operation of each project is “essential to the payment and security of the Bonds.”

INITIATIVE 394

Initiative 394 was enacted at the Washington general election of November 3, 1981, in response to cost overruns and construction delays at five7 nuclear power plants then under simultaneous construction by WPPSS.8 Initiative 394 applies only to future projects and those projects still under construction as of July 1, 1982, that have exceeded their first official agency budget estimates by more than 200%. All three WPPSS power plants at issue here fall into the latter category.

The heart of the Initiative is contained in section 4.

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Bluebook (online)
696 F.2d 692, 51 P.U.R.4th 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/continental-illinois-national-bank-trust-co-v-washington-ca9-1983.