Industrial Customers of Northwest Utilities v. Bonneville Power Administration , 408 F.3d 638 ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
INDUSTRIAL CUSTOMERS OF 
NORTHWEST UTILITIES; BENTON
RURAL ELECTRIC ASSOCIATION;
COLUMBIA-SNAKE RIVER IRRIGATORS
ASSOCIATION; UMATILLA ELECTRIC;
EASTERN OREGON IRRIGATORS
ASSOCIATION,
Petitioners,
PUGET SOUND ENERGY; AVISTA
CORPORATION; PACIFIC NORTHWEST

GENERATING COMPANY (PNGC); No. 03-71626
PUBLIC UTILITY DISTRICT NO. 1 OF Power Act
SNOHOMISH COUNTY, WASHINGTON,
Petitioner-Intervenor,
v.
BONNEVILLE POWER
ADMINISTRATION,
Respondent,
PACIFICORP; PORTLAND GENERAL
ELECTRIC COMPANY,
Respondent-Intervenor.

5671
5672 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
PUBLIC UTILITY DISTRICT NO. 1 OF 
BENTON COUNTY; PUBLIC UTILITY
DISTRICT NO. 1 OF COWLITZ
COUNTY; PUBLIC UTILITY DISTRICT
NO. 1 OF FRANKLIN COUNTY; PUBLIC
UTILITY DISTRICT NO. 2 OF GRANT
COUNTY; PUBLIC UTILITY DISTRICT
NO. 1 OF GRAYS HARBOR COUNTY;
PUBLIC UTILITY DISTRICT NO. 1 OF
PENDOREILLE COUNTY; THE CITY OF
SEATTLE; SEATTLE CITY LIGHT
DEPARTMENT (GENERATING PUBLIC
UTILITIES); PUBLIC POWER COUNCIL,

Petitioners, No. 03-71894
PACIFIC NORTHWEST GENERATING Power Act
COMPANY (PNGC); PUGET SOUND
ENERGY; AVISTA CORPORATION;
PUBLIC UTILITY DISTRICT NO. 1 OF
SNOHOMISH COUNTY, WASHINGTON,
Petitioner-Intervenor,
v.
BONNEVILLE POWER
ADMINISTRATION,
Respondent,
PACIFICORP; PORTLAND GENERAL
ELECTRIC COMPANY,
Respondent-Intervenor.

INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5673
ALCOA, INC., 
Petitioner,
PACIFIC NORTHWEST GENERATING
COMPANY (PNGC); PUGET SOUND
ENERGY; AVISTA CORPORATION;
PUBLIC UTILITY DISTRICT NO. 1 OF
SNOHOMISH COUNTY, WASHINGTON, No. 03-71931
Petitioner-Intervenor,
 Power Act
v. OPINION
BONNEVILLE POWER
ADMINISTRATION,
Respondent,
PACIFICORP; PORTLAND GENERAL
ELECTRIC COMPANY,
Respondent-Intervenor.

On Petition for Review of an Order of the
Bonneville Power Administration
Argued and Submitted
October 7, 2004—Seattle, Washington
Filed May 24, 2005
Before: Dorothy W. Nelson, Sidney R. Thomas,
Circuit Judges, and David A. Ezra,* District Judge.
Opinion by Judge Thomas
*The Honorable David A. Ezra, Chief Judge, United States District
Court for the District of Hawaii, sitting by designation.
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5675
COUNSEL
Michael B. Early, Portland, Oregon, for petitioner Alcoa Inc.
5676 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
Melinda J. Davison, Irion A. Sanger, Davison Van Cleve,
Portland, Oregon, for petitioners Industrial Customers of
Northwest Utilities, Benton Rural Electric Association,
Columbia-Snake River Irrigators Association, Umatilla Elec-
tric, Eastern Oregon Irrigators Association.
Denise Peterson, Portland, Oregon, for petitioner Public
Power Council.
Raymond S. Kindley, Schwabe, Williamson & Wyatt, Port-
land, Oregon, for petitioners Public Utility District No. 1 of
Benton County, Public Utility District No. 1 of Cowlitz
County, Public Utility District No. 1 of Franklin County, Pub-
lic Utility District No. 2 of Grant County, Public Utility Dis-
trict No. 1 of Grays Harbor County, Public Utility District No.
1 of Pendoreille County, the City of Seattle, Seattle City Light
Department.
Michael J. Gianunzio, Eric Lee Christensen, Everett, Wash-
ington, for petitioner Public Utility District No. 1 of Snoho-
mish County, Washington.
Gary A. Dahlke, R. Blair Strong, Paine, Hamblen, Coffin,
Brooke, & Miller, LLP, Spokane, Washington, for petitioner-
intervenor Avista Corporation.
R. Erick Johnson, Portland, Oregon, for petitioner-intervenor
Pacific Northwest Generating Company.
Kirstin S. Dodge, Perkins Coie, LLP, Bellevue, Washington,
for petitioner-intervenor Puget Sound Energy.
Eric Lee Christensen, Michael J. Gianunzio, Everett, Wash-
ington, for petitioner-intervenor Public Utility District No. 1
of Snohomish County, Washington.
Randy A. Roach, Marybeth Van Buren, Karin J. Immergut,
United States Attorney, District of Oregon, Stephen J. Odell,
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5677
Assistant U.S. Attorney, Kurt R. Casad, Special Assistant
U.S. Attorney, Portland, Oregon, for respondent Bonneville
Power Administration.
Marcus Wood, Stephen C. Hall, Stoel Rives LLP, Portland,
Oregon, for respondent-intervenor Pacificorp.
Loretta Mabinton, Portland, Oregon, for respondent-
intervenor Portland General Electric Company.
OPINION
THOMAS, Circuit Judge:
This consolidated appeal presents the question, inter alia,
of whether the Bonneville Power Administration (“BPA”)
determination to commence a rate hearing to decide whether
the BPA should impose Safety-Net Cost Recovery Adjust-
ment Charges is a final agency decision subject to judicial
review. We conclude that it is not and dismiss the petitions for
review for lack of jurisdiction.
I
The BPA is a federal agency within the United States
Department of Energy created by Congress in 1937 to market
hydroelectric power generated by the Federal Columbia River
Power System, a series of dams along the Columbia River in
Oregon and Washington. 16 U.S.C. §§ 832-832m. Congress
has since expanded the BPA’s mandate to include marketing
authority over nearly all the electric power generated by fed-
eral facilities in the Pacific Northwest. Id. § 838f. The BPA
is charged with oversight of the federal high-voltage transmis-
sion system used to deliver power generated at a federally
owned and operated facility, as well as non-federal power to
its customers. Id. § 838b. It owns and operates approximately
5678 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
eighty percent of the Pacific Northwest’s high-voltage trans-
mission system and markets approximately forty percent of
the electric power consumed in the Pacific Northwest. Ass’n
of Pub. Agency Customers, Inc. v. BPA, 126 F.3d 1158, 1163
(9th Cir. 1997).
The BPA’s general authority is derived from four organic
statutes: the Bonneville Project Act of 1937 (“the Project
Act”), 16 U.S.C. §§ 832-832m; the Regional Preference Act,
id. §§ 837-837h; the Columbia River Transmission Act (“the
Transmission Act”), id. §§ 838-838l; and the Pacific North-
west Electric Power Planning and Conservation Act of 1980
(“the Northwest Power Act”), id. §§ 839-839h. Ass’n of Pub.
Agency Customers, 126 F.3d at 1164. The BPA’s rate-making
authority is derived from the Project Act, the Transmission
Act, the Northwest Power Act, and the Flood Control Act of
1944, 16 U.S.C. § 825s. Pursuant to the Northwest Power Act,
the BPA’s power rates are established by the BPA, but subject
to approval by the Federal Energy Regulatory Commission
(“FERC”). Id. § 829e. After 1974, when Congress trans-
formed the BPA into a self-financing agency, see id. § 838i,
the power rates charged by the BPA became its source of rev-
enue. Cent. Lincoln Peoples’ Util. Dist. v. Johnson, 735 F.2d
1101, 1116 (9th Cir. 1984).
The Northwest Power Act requires the BPA to establish
rates that will “produce sufficient revenues to ensure BPA’s
fiscal independence and repay the U.S. Treasury for the fed-
eral funds that were borrowed to build the projects in the Fed-
eral Columbia River Power System.” Cal. Energy Comm’n v.
BPA, 909 F.2d 1298, 1303 (9th Cir. 1990); 16 U.S.C.
§§ 838g, 839e(a)(1). At the same time, Congress requires that
the BPA market federal power “with a view to encouraging
the widest possible diversified use of electric power at the
lowest possible rates to consumers consistent with sound busi-
ness principles.” 16 U.S.C. §§ 838g, 839e(a)(1).
The BPA Administrator is required periodically to revise
rates to recover the capital costs and expenses associated with
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5679
the Columbia River Power System. See id. §§ 832f, 838g,
839e(a)(1). The procedures governing the establishment of
rates are set by statute and include the following: issuance of
a Federal Register notice announcing the proposed rates; one
or more hearings; the opportunity to submit written views,
supporting information, questions, or arguments; and a deci-
sion by the Administrator based on the record developed dur-
ing the hearing process. Id. § 839e. Rates established by the
BPA only become effective after approval by FERC. Id.
§ 839e(a)(2).
The rate schedules proposed by the BPA are termed “Gen-
eral Rate Schedule Provisions” (“GRSP”). The origins of the
present controversy arose out of a supplemental rate proposal
promulgated by the BPA in 2001. The BPA had previously
proposed new wholesale power rates to be effective on Octo-
ber 1, 2001, 64 Fed. Reg. 44,318 (1999), and different rates
to be effective Fiscal Year 2002, 65 Fed. Reg. 44,041 (2000).
After these filings, increased load obligations and higher
market prices caused the BPA to determine that its rate pro-
posals would be insufficient to assure it could cover costs and
repay U.S. Treasury obligations. On December 1, 2000, the
BPA published its proposed amendments to the 2002 whole-
sale power rate adjustment proposal. 65 Fed. Reg. 75,272
(2000). Further market changes caused the BPA to issue sup-
plemental wholesale power rate filing on June 29, 2001. 66
Fed. Reg. 37,664 (2001). The supplemental proposal adjusted
the previous GRSP by replacing the capped single Cost
Recovery Adjustment Clause (“CRAC”) with a three-
component CRAC: the Load-Based CRAC (or “LB CRAC”,
as it is referenced in the BPA filings) designed to cover aug-
mentations costs; the Financial-Based CRAC (or “FB
CRAC”) designed to cover net revenue, and the Safety-Net
CRAC (or “SN CRAC”), available if there were a likelihood
of missing a treasury or other creditor payment.
The CRACs were created to allow the BPA to address any
financial shortfalls without having to raise base rates. In par-
5680 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
ticular, the CRACs were intended to increase the BPA’s Trea-
sury Payment Probability to what it considered acceptable
levels. FERC granted interim approval of the CRAC proposal
on September 28, 2001 and final approval on July 21, 2003.
104 FERC ¶ 61,093 (2003).
When triggered, the Safety-Net CRAC allowed “an upward
adjustment to posted power rates subject to the FB CRAC by
modifying the FB CRAC parameters.” Under the GRSP, the
Safety-Net CRAC would be available if the Administrator
determined that, after implementation of the Financial-Based
CRAC and any adjustments, either of the following condi-
tions existed:
• The BPA forecasts a fifty percent or greater prob-
ability that it will nonetheless miss its next pay-
ment to Treasury or other creditor, or
• The BPA has missed a payment to the Depart-
ment of the Treasury or has satisfied its obliga-
tion to the Department of the Treasury but has
missed a payment to any other creditor.
Under the supplemental proposal, once the BPA Adminis-
trator determined that these conditions existed, the BPA
would “propose changes to the FB CRAC parameters that
will, to the extent market and other risk factors allow, achieve
a high probability that the remainder of Treasury payments
during the FY 2002-2006 rate period will be made in full.” In
determining its initial proposal, the BPA was to “give priority
to prudent cost management and other options that enhance
Treasury Payment Probability while minimizing changes to
the FB CRAC.”
When the Administrator determined that the Safety-Net
CRAC had been triggered, the BPA would be required to send
written notification to customers that purchase power under
rates subject to the Financial-Based CRAC and to other inter-
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5681
ested parties. The notice was required to “the documentation
used by the BPA to determine that the SN CRAC has trig-
gered, the amount of any forecast shortfall, and the time and
location of a workshop on the SN CRAC.” The scheduled
workshops are to discuss “the cause of shortfall, and any pro-
posed changes to the FB CRAC that will achieve a high prob-
ability that the remainder of Treasury payments . . . will be
made timely.”
Additionally, “[a]s soon as practicable after a determina-
tion,” the BPA was required to publish “a Federal Register
Notice initiating an expedited hearing process to be conducted
in accordance with Section 7(i) of the Northwest Power Act.”
The hearing was required to be completed within forty days
of publication of the notice.
The BPA experienced continued financial problems in the
winter of 2003. Due to “lower than expected prices and less
than expected hydro production,” the BPA ended up “selling
less energy and at lower prices than forecasted in the Supple-
mental Proposal.” Under the GRSP financial test, the Admin-
istrator determined that the BPA had less than a fifty percent
probability of making the next Treasury payment, due Octo-
ber 1, 2003. On February 7, 2003, the BPA Administrator
commenced an emergency rate adjustment pursuant to the
financial test in the Safety-Net CRAC provisions. The BPA
issued a letter to “interested parties and customers” informing
them of the trigger determination; the letter “included a table
summarizing the documentation used by the BPA to deter-
mine that the SN CRAC had triggered, the amount of the fore-
casted shortfall, and the time and location for a workshop on
the SN CRAC.”
Pursuant to the GRSP, the BPA conducted workshops in
February 2003 to explain the trigger determination. In March,
the BPA published a Federal Register Notice of “Proposed
Safety-Net Cost Recovery Adjustment Clause Adjustment to
2002 Wholesale Power Rates.” 68 Fed. Reg. 12048 (2003).
5682 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
The BPA held full evidentiary hearings and allowed a com-
ment period.
In June 2003, the BPA published its “Administrator’s Final
Record of Decision” (“Final ROD”) for the Safety-Net
CRAC. The Final ROD contains the BPA analysis and con-
clusions based on the evidentiary record compiled, with
respect to the adoption of the Safety-Net CRAC. Subse-
quently, the BPA filed its Safety-Net CRAC rate adjustment
proposal and record with FERC on July 29, 2003, along with
a request for interim and final approval effective October 1,
2003. 105 FERC ¶ 61,006 ¶¶ 2, 3 n.4 (2003). The effect of the
Safety-Net CRAC would be to increase the BPA’s power
rates substantially.
The petitioners in these consolidated petitions for review
are various public utilities and private utility consumers who
challenge the BPA’s Final ROD approving the Safety-Net
CRAC. They contend that the BPA Administrator was not
entitled to impose the Safety-Net CRAC because neither of
the two predicate conditions existed. Respondents concede
that the BPA had not missed any payments that would cause
the trigger. The Petitioners argue that the other predicate con-
dition — the BPA forecast of a fifty percent probability that
it would miss its next payment to the Department of the Trea-
sury — was fundamentally flawed. Petitioners claim that the
BPA acted arbitrarily and capriciously in adopting the Safety-
Net CRAC because the BPA had sufficient financial resources
to make its next Treasury payment, but improperly chose to
exclude sources of revenue such as bond refinancing.
On judicial review under the Administrative Procedures
Act, we may grant a petition for review from a final decision
of the BPA if it is “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). We review subject matter jurisdiction de novo.
Chang v. United States, 327 F.3d 911, 922 (9th Cir. 2003).
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5683
II
The threshold question is whether we have jurisdiction over
the consolidated petitions for review. The BPA contends that
the Administrator’s decision to trigger the Safety-Net CRAC
is not subject to judicial review until FERC confirms and
approves the rate,1 reasoning that the final agency action in
this instance rests with FERC. We agree and conclude that we
lack appellate jurisdiction because the Final ROD was not the
final rate determination and therefore, not the final agency
action.
A
[1] Under the Northwest Power Act, we have original juris-
diction for all cases brought challenging actions under the
Project Act, 16 U.S.C. §§ 832 et seq. Id. § 839f(e)(5). The act
vests us with exclusive jurisdiction for review of final actions
and decisions of the BPA Administrator. Pub. Util. Dist. No.
1 of Clark County v. Johnson, 855 F.2d 647, 648 (9th Cir.
1988). Our jurisdiction is limited to “[s]uits to challenge the
constitutionality of [the Project Act], or any action thereunder,
final actions and decisions taken pursuant to this [Act] by the
Administrator or the Council, or the implementation of such
final actions.” Id. The statute delineates eight actions consid-
ered “final actions subject to judicial review.” 16 U.S.C.
§ 839f(e)(1). This list includes “final rate determinations,”
which are deemed final only “upon confirmation and approval
by the Federal Energy Regulatory Commission.” Id.
§ 839f(e); Cent. Lincoln Peoples’ Util. Dist., 735 F.2d at
1109.
[2] Because the BPA’s decision to trigger the Safety-Net
CRAC is ultimately subsumed into the rate subject to FERC
1
Final confirmation did in fact occur on May 10, 2004. 107 FERC
¶ 61,138 (2004). It is the subject of a separate petition for review pending
before this Court.
5684 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
approval, this statutory scheme would seem to present a fairly
straightforward administrative process for review of the
BPA’s trigger determination. However, FERC does not have
the authority to review the BPA’s initial trigger decision.
Although FERC must approve all rate changes before they
become final, FERC’s power to review the BPA proposals is
limited: It can affirm or remand the rates, but cannot modify
them. 16 U.S.C. §§ 839e(a), 839e(k); 107 FERC ¶ 61,138
¶ 23. FERC has described its role in the BPA ratemaking as
that “of an appellate body,” whose “function is to determine
from the record before it whether ‘due process requirements
have been met and [whether] the Administrator’s program of
rate schedules and the decision of [the Assistant Secretary]
are rational and consistent with the statutory standards.’ ” Alu-
minum Co. of Am. v. BPA, 903 F.2d 585, 592-93 (9th Cir.
1989) (quoting United States v. City of Fulton, 475 U.S. 657,
663 (1986)) (alterations in original).
The basis of the Commission’s review of regional power
and transmission rates is restricted to whether the proposed
rates meet the three specific requirements of Section 7(a)(2),
namely that they:
(A) are sufficient to assure repayment of the Fed-
eral investment in the Federal Columbia River
Power System over a reasonable number of years
after first meeting the Administrator’s other costs,
(B) are based upon the Administrator’s total sys-
tem costs, and
(C) insofar as transmission rates are concerned,
equitably allocate the costs of the Federal transmis-
sion system between Federal and non-Federal power
utilizing such system.
16 U.S.C. § 839e(a)(2).
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5685
FERC reviews non-regional, non-firm rates to determine
whether such rates comply with the statutory mandates of the
Project Act, the Flood Control Act of 1944, and the Transmis-
sion System Act. Id. § 839e(k). These statutes require BPA
“to design its non-regional, non-firm rates: (1) to recover the
cost of generation and transmission of such electric energy,
including the amortization of investments in the power proj-
ects within a reasonable period; (2) to encourage the most
widespread use of Bonneville power; and (3) to provide the
lowest possible rates to consumers consistent with sound busi-
ness principles.” 107 FERC ¶ 61,138 ¶ 22.
[3] Given these limitations, the Petitioners quite correctly
point out that FERC’s rate review will not provide them with
an opportunity to challenge the BPA’s trigger decision during
FERC’s review. However, the absence of FERC review does
not preclude judicial review of the BPA’s trigger determina-
tion after final FERC action. Indeed, the BPA concedes that
the petitioners have the full right to judicial review of its trig-
ger decision as part of the petition for review of the ultimate
FERC rate decision. However, because the trigger determina-
tion was a component of the rate, it is not subject to judicial
review until final agency action with respect to the rate. See
Pub. Util. Comm’r of Oregon v. BPA, 767 F.2d 622, 629 (9th
Cir. 1985) (noting that challenges to the BPA’s rate-making
process not subject to FERC review may still be raised on
judicial review of final FERC rate decision, but cannot be
raised in an interlocutory petition for review). In sum, the
petitions before us are not ripe for review, but are a proper
part of a petition for review of the final FERC rate decision.
B
[4] The petitioners contend that we have appellate jurisdic-
tion pursuant to our “catchall” jurisdiction under the North-
west Power Act, which provides that “[n]othing in this section
shall be construed to preclude judicial review of other final
actions and decisions by the Council or Administrator.” 16
5686 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
U.S.C. § 839f(e)(3). The Northwest Power Act does not delin-
eate what constitutes a “final action” under this section.
Therefore, the courts have been left to define the term. In
doing so, we have looked to the “more general doctrine of
finality in administrative agency law.” See Puget Sound
Energy, Inc. v. United States, 310 F.3d 613, 624 (9th Cir.
2002). The finality doctrine is “concerned with whether the
initial decisionmaker has arrived at a definitive position on
the issue that inflicts an actual, concrete injury.” Idaho Water-
sheds Project v. Hahn, 307 F.3d 815, 828 (9th Cir. 2002)
(quoting Darby v. Cisneros, 509 U.S. 137, 144 (1993)).
[5] The Supreme Court provided guidance in this determi-
nation in Bennett v. Spear, 520 U.S. 154 (1997). In Bennett,
the Supreme Court held that an agency action is considered
“final” when the two sets of conditions are satisfied. Id. at
177-78. “First, the action must mark the ‘consummation’ of
the agency’s decisionmaking process — it must not be of a
merely tentative or interlocutory nature.” Id. (citations omit-
ted). Secondly, “the action must be one by which ‘rights or
obligations have been determined,’ or from which ‘legal con-
sequences will flow.’ ” Id. at 178 (citations omitted). As the
Supreme Court has stated, “[t]he core question is whether the
agency has completed its decisionmaking process, and
whether the result of that process is one that will directly
affect the parties.” Franklin v. Massachusetts, 505 U.S. 788,
797 (1992).
In applying these principles, we have determined that cer-
tain factors provide an indicia of finality, such as “whether the
[action] amounts to a definitive statement of the agency’s
position, whether the [action] has a direct and immediate
effect on the day-to-day operations of the party seeking
review, and whether immediate compliance [with the terms]
is expected.” Cal. Dep’t of Water Res. v. FERC, 341 F.3d
906, 909 (9th Cir. 2003) (citing Mt. Adams Veneer Co. v.
United States, 896 F.2d 339, 343 (9th Cir. 1990) (citing FTC
v. Standard Oil Co., 449 U.S. 232, 239-40 (1980))).
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5687
[6] The decision by the BPA Administrator to trigger the
Safety-Net CRAC rate adjustment process fails the first prong
of the Bennett test of finality, in that it does not “mark the
‘consummation’ of the agency’s decisionmaking process,” but
is merely the beginning of the decision-making process. “An
interlocutory order or decree is one which does not finally
determine a cause of action but only decides some intervening
matter pertaining to the cause, and which requires further
steps to be taken in order to enable the court to adjudicate the
cause on its merits.” Dalton Equip. Co. v. Brown, 594 F.2d
195, 197 (9th Cir. 1979).
In the Final ROD, the BPA represented that “[t]he trigger
determination for the SN CRAC is purely procedural.” As the
Final ROD explains, “[t]he trigger determination does not
propose an SN CRAC or establish an SN CRAC.” Instead, the
trigger determination only initiates the process. The Adminis-
trator considered the Safety-Net CRAC process to be com-
prised of three phases, as delineated in the GRSP. The trigger
determination constitutes the first phase. The second phase is
the “SN CRAC Notification Process,” which is “intended to
inform customers and interested third parties of the Adminis-
trator’s determination, and the basis for it.” The third phrase
is “SN CRAC Hearing Process,” which is governed by the
procedural requirements of § 7(i). After the § 7(i) evidentiary
hearing, which must be completed within forty days, the BPA
must submit the required documentation, including the admin-
istrative record to FERC. Only after FERC’s confirmation and
approval are rate determinations deemed final. 16 U.S.C.
§ 839f(e)(4)(D); Cent. Lincoln Peoples’ Util. Dist., 735 F.2d
at 1109.
Petitioners argue, with much justification, that the trigger
decision is a discrete decision that has immediate financial
impact. However, the fact that a statement may be definitive
on some issue is insufficient to create a final action subject to
judicial review. In Standard Oil, for example, Standard Oil
Company of California (“Socal”) brought an action against
5688 INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER
the FTC for issuing a complaint averring that the Commission
had “reason to believe” Socal was violating the Federal Trade
Commission Act. 449 U.S. at 234-35. The court found that the
FTC’s averment of “reason to believe” was not a definitive
statement of position, but “represent[ed] a threshold determi-
nation that further inquiry is warranted and that a complaint
should initiate proceedings.” Id. at 242. As the court
explained:
To be sure, the issuance of the complaint is defini-
tive on the question whether the [FTC] avers reason
to believe that the respondent to the complaint is vio-
lating the Act. But the extent to which the respon-
dent may challenge the complaint and its charges
proves that the averment of reason to believe is not
“definitive” in a comparable manner to [other cases].
. . . [T]he averment of reason to believe is a prerequi-
site to a definitive agency position on the question
whether Socal violated the Act, but itself is a deter-
mination only that adjudicatory proceedings will
commence.
Id. at 241.
[7] Although it is the predicate act for rate readjustment,
the trigger determination itself has no final consequences. The
trigger decision only determines whether a hearing will or
will not occur. Like the complaint at issue in Standard Oil,
the determination “[s]erv[es] only to initiate the proceedings.”
Id. at 242. As the BPA noted in the Final ROD, “[t]he actual
determination of whether the BPA will have an SN CRAC
and, if so, the nature of the SN CRAC rate adjustment, is
determined in the section 7(i) hearing.” Any change in actual
rate only occurs after being submitted to and approved by
FERC. Because it is not an actual rate decision, the BPA
Administrator is allowed, and in fact required, to “make a
decision on the trigger determination in the absence of a for-
mal evidentiary record.” The BPA explains that “[t]he
INDUSTRIAL CUSTOMERS v. BONNEVILLE POWER 5689
requirements for making the trigger determination are very
limited, which is perfectly consistent with the nature of the
trigger determination . . . [which] has no substantive effect on
any customer or interested party.”
In the real world, of course, the trigger determination has
economic consequences — sometimes profound conse-
quences — because companies must take it into consideration
when negotiating power contracts, particularly long-term
power contracts. Nonetheless, the companies have a right of
judicial review at the conclusion of FERC proceedings and do
not waive any of their objections to the predicate determina-
tions by failing to seek judicial review at an earlier stage.
III
[8] For these reasons, we dismiss the petitions for lack of
jurisdiction. We need not, and do not, reach any other issue
raised by the parties. Each party shall bear its own costs.
PETITION DISMISSED.