APAC v. BPA, No. 11-73178 (9th Cir. 2013)
Annotate this CaseAPAC petitioned for review of a settlement agreement between the BPA and a large number of its customers. The settlement set terms for refunding customers who were previously over-charged, as well as setting terms for the next seventeen years. APAC alleged that the settlement violated several provisions of the Pacific Northwest Power Planning and Conservation Act (NWPA), 16 U.S.C. 839c(c), 839e(b); the Bonneville Project Act, 16 U.S.C. 832d(a); regulations of the Federal Energy Commission, 18 C.F.R. 300.1(b)(6), 300.21(e)(1); and the court's decision in Portland Gen. Elec. Co. v. BPA and Golden NW. Aluminum, Inc. v. BPA. As a preliminary matter, the court concluded that APAC had standing to challenge the settlement because of the "pass-through" contracts under which its members pay rates that directly reflect the rates BPA charged its direct customers. On the merits, the court concluded that the settlement complied with the relevant statutory requirements and with the court's prior decisions. Accordingly, the court denied the petition for review.
Court Description: Bonneville Power Administration. The panel denied a petition for review of a decision of the Bonneville Power Administration adopting the Residential Exchange Program Settlement Agreement, which set terms for refunding energy customers who were previously overcharged and set new rate terms for the next seventeen years. The panel held that the Association of Public Agency Customers, a group whose members were not direct customers of the Bonneville Power Administration (“BPA”), had constitutional and prudential standing to challenge the Settlement, due to the “pass-through” contracts under which its members paid rates that directly reflected the rates that the BPA charged its direct customers. Concerning the merits, the panel held that the Settlement complied with the relevant statutory requirements of the Pacific Northwest Electric Power and Conservation Act, the Bonneville Project Act, and regulations of the Federal Energy Regulatory Commission, and with the court’s prior decisions in Portland Gen. Elec. Co. v. BPA, 501 F.3d 1009 (9th Cir. 2007), and Golden Nw. Aluminum, Inc. v. BPA, 501 F.3d 1037 (9th Cir. 2007). The panel also held that the Settlement did not improperly bind non-settling parties to the Agreement. Finally, the panel held that the BPA Administrator’s adoption of the Settlement in the Record of Decision was not arbitrary and capricious. Judge Alarcón dissented because he would hold that Association of Public Agency Customers lacked Article III standing, and therefore the court lacked jurisdiction to reach the merits of the case.
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