M-S-R Public Power Agency v. Bonneville Power Administration

297 F.3d 833
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 9, 2002
DocketNos. 99-71536, 99-71537, 99-71545, 00-71724, 01-70433, 01-70469 and 01-70480
StatusPublished
Cited by1 cases

This text of 297 F.3d 833 (M-S-R Public Power Agency v. Bonneville Power Administration) 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
M-S-R Public Power Agency v. Bonneville Power Administration, 297 F.3d 833 (9th Cir. 2002).

Opinion

TROTT, Circuit Judge.

Pursuant to its 1996 Excess Federal Power Policy, the Bonneville Power Administration (“BPA” or “Bonneville”) issues annual ten-year forecasts of the amount of “excess federal power” it anticipates will be available for sale to its customers during those years. Among those customers are the Petitioners: M-S-R Public Power Agency (“M-S-R”), a public entity located in California, and several aluminum companies (“Aluminum Companies”) located in the Pacific Northwest.1 M-S-R filed a timely petition challenging (1) BPA’s method for calculating its 1999 and 2000 ten-year forecasts of excess federal power, (2) the timeliness of BPA’s 1999 and 2000 written notices of available excess federal power, and (3) the timeliness of BPA’s 2000 final ten-year forecast of excess federal power. The Aluminum Companies also challenged BPA’s method for calculating excess federal power, but based their petition on different grounds than M-S-R.

This Court has original jurisdiction over these petitions pursuant to section 9(e)(5) of the Pacific Northwest Electric Power Planning and Conservation Act (“Northwest Power Act”), 16 U.S.C. § 839f(e)(5). We deny M-S-R’s petitions challenging BPA’s forecasts of excess federal power and dismiss for lack of jurisdiction M-SR’s timeliness claims. We grant the Aluminum Companies’ petitions because BPA’s method for forecasting excess federal power was contrary to clear congressional intent.

BACKGROUND

In recent years, the demand for BPA’s power has out-stripped its supply. Anticipating such power shortfalls, Congress instituted certain statutory directives and preferences that guide BPA’s allocation of power while ensuring it operates “for the benefit of the general public, and particularly of domestic and rural consumers.” 16 U.S.C. § 832c(a); see also Aluminum Co. of Am. v. Cent. Lincoln Peoples’ Util. [837]*837Dist., 467 U.S. 380, 393, 104 S.Ct. 2472, 81 L.Ed.2d 301 (1984) (“[T]he preference system ... determines the priority of different customers when the Administrator receives ‘conflicting or competing’ applications for power that the Administrator is authorized to allocate administratively.”). For instance, Bonneville must serve the power requirements of each “public body and cooperative” and each investor-owned utility, 16 U.S.C. § 839c(b)(l),2 giving “preference and priority” to public bodies and cooperatives. 16 U.S.C. §§ 832c(a)-(b), 839c(a). By contrast, Bonneville is not obligated to sell any power to direct service industrial customers (“DSIs”), including the Aluminum Companies, which purchase power directly from BPA for their own use. 16 U.S.C. § 839c.3

Furthermore, Congress has prioritized the needs of Pacific Northwest customers over those of users outside the region.. 16 U.S.C. §§ 832m(b)(l), 837a, 837b. Thus, BPA’s sales of energy outside the region are limited to power that would otherwise be wasted, i.e., power “for which there is no market in the Pacific Northwest at any rate established for the disposition of such energy.” 16 U.S.C. §§ 839f(c); 837(c). This power is called “surplus” power, and numerous restrictions are placed, on its sale. Perhaps most significantly, surplus power is delivered only on a provisional basis, allowing BPA to recall surplus power deliveries or cancel future ones when necessary to meet the energy requirements of Pacific Northwest customers. 16 U.S.C. §§ 837b(a)-(b), 839f(e).

Excess Federal Power

As the market for electric energy became more competitive in the early 1990s, BPA customers migrated to other providers, leaving BPA with an increasing amount of surplus power which, with its sales restrictions, was difficult to sell. In response, Congress passed the Water Development Appropriations Act of 1996 (“Excess Federal Power Act”), codified at 16 U.S.C. § 832m, which created a subspecies of surplus power called “excess federal power.” Congress defined “excess federal power” as “electric power that has become surplus” due to:

any reduction in the quantity of electric power that the Administrator is contractually required to supply to [its public utility customers under 16 U.S.C. § 839c(b) and to its DSI customers under 16 U.S.C. § 839c(d)], due to the election by customers ... to purchase electric power from other suppliers, as compared to the quantity of electric power’ that the Administrator was contractually required to supply as of January 1,1995.

16 U.S.C. § 832m(a)(3)(A).4 The Excess Federal Power Act authorized Bonneville to sell power to non-regional customers without the statutory restrictions, including the right to recall, that applied to the sale of traditional surplus power. 16 U.S.C. § 832m(b).

In March 1996, BPA initiated notice and comment proceedings to develop a policy to interpret and implement its excess federal power marketing authority under 16 U.S.C. § 832m. The result was Bonneville’s Excess Federal Power Policy (“EFP Policy”) and the accompanying Record of Decision (“EFP-Deeision”). 61 Fed.Reg. 50,810 (Sept. 27, 1996). The EFP Policy [838]*838established the method for calculating excess federal power:

To determine the energy component of excess federal power, each year Bonneville will prepare a current forecast, in average megawatts, of Firm Contractual Obligations based upon its then-current contracts. In order to allow for sales or dispositions of excess federal power under Delayed-Delivery Contracts with delivery terms of up to 7 years, Bonneville will produce a 10-year annual energy (average megawatts) forecast of its then-current Firm Contractual Obligations. For each year of the forecast period, the excess federal power in firm energy from reductions in Firm Contractual Obligations will equal the difference between the forecasted Firm Contractual Obligations and 8298 aMW.

Id. at 50,811.5 The 8298 aMW (“average megawatts”) figure represented BPA’s total firm energy obligations as of January 1, 1995; 2907 aMW were attributable to DSIs.

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297 F.3d 833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/m-s-r-public-power-agency-v-bonneville-power-administration-ca9-2002.