Nru v. Ferc ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORTHWEST REQUIREMENTS No. 13-70391
UTILITIES; PUBLIC POWER COUNCIL;
THE CITY OF SEATTLE, FERC Nos.
Petitioners, EL11-44-000
EL11-44-001
POWEREX CORPORATION;
SACRAMENTO MUNICIPAL UTILITY
DISTRICT; TURLOCK IRRIGATION
DISTRICT; AVISTA CORPORATION;
CANNON POWER CORPORATION,
CAITHNESS SHEPHERDS FLAT, LLC; E.
ON CLIMATE & RENEWABLES NORTH
AMERICA LLC; EURUS COMBINE
HILLS II LLC; IBERDROLA
RENEWABLES, LLC; M-S-R PUBLIC
POWER AGENCY; NORTHWEST
UTILITIES; PUGET SOUND ENERGY,
INC.; PACIFICORP; PORTLAND
GENERAL ELECTRIC COMPANY;
PUBLIC UTILITY DISTRICT NO. 1 OF
SNOHOMISH COUNTY, WASHINGTON;
PPL MONTANA, LLC; CHARLES PACE,
Intervenors,
2 NRU V. FERC
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent.
NATIONAL RURAL ELECTRIC No. 13-70499
COOPERATIVE ASSOCIATION; PACIFIC
NORTHWEST GENERATING FERC Nos.
COOPERATIVE; AMERICAN PUBLIC EL11-44-000
POWER ASSOCIATION, EL11-44-001
Petitioners,
CAITHNESS SHEPHERDS FLAT, LLC;
CANNON POWER CORPORATION; E. ON
CLIMATE & RENEWABLES NORTH
AMERICA LLC; EURUS COMBINE
HILLS II LLC; IBERDROLA
RENEWABLES, LLC; M-S-R PUBLIC
POWER AGENCY; NORTHWEST
UTILITIES; PUGET SOUND ENERGY,
INC.; PACIFICORP; POWEREX
CORPORATION; SACRAMENTO
MUNICIPAL UTILITY DISTRICT;
TURLOCK IRRIGATION DISTRICT; PPL
MONTANA, LLC; PUBLIC UTILITY
DISTRICT NO. 1 OF SNOHOMISH
NRU V. FERC 3
COUNTY, WASHINGTON; CHARLES
PACE,
Intervenors,
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent.
PUBLIC UTILITY DISTRICT NO. 1 OF No. 13-70581
SNOHOMISH COUNTY, WASHINGTON,
Petitioner, FERC Nos.
EL11-44-000
CAITHNESS SHEPHERDS FLAT, LLC; EL11-44-001
CANNON POWER CORPORATION; E. ON
CLIMATE & RENEWABLES NORTH
AMERICA LLC; EURUS COMBINE
HILLS II LLC; IBERDROLA
RENEWABLES, LLC; M-S-R PUBLIC
POWER AGENCY; NORTHWEST
UTILITIES; PUGET SOUND ENERGY,
INC.; PACIFICORP; POWEREX
CORPORATION; SACRAMENTO
MUNICIPAL UTILITY DISTRICT; PPL
MONTANA, LLC; CHARLES PACE,
Intervenors,
4 NRU V. FERC
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent.
NORTHWEST REQUIREMENTS No. 13-72928
UTILITIES; PUBLIC POWER COUNCIL;
THE CITY OF SEATTLE; PUBLIC FERC No.
UTILITY DISTRICT NO. 1 OF EL11-44-004
SNOHOMISH COUNTY, WASHINGTON;
NATIONAL RURAL ELECTRIC
COOPERATIVE ASSOCIATION; PACIFIC OPINION
NORTHWEST GENERATING
COOPERATIVE; AMERICAN PUBLIC
POWER ASSOCIATION,
Petitioners,
EDP RENEWABLES NORTH AMERICA
LLC; INDUSTRIAL CUSTOMERS OF
NORTHWEST UTILITIES; M-S-R
PUBLIC POWER AGENCY; NORTHWEST
AND INTERMOUNTAIN POWER
PRODUCERS COALITION; PUGET
SOUND ENERGY, INC; PORTLAND
GENERAL ELECTRIC COMPANY;
POWEREX CORPORATION;
SACRAMENTO MUNICIPAL UTILITY
NRU V. FERC 5
DISTRICT; TRANSALTA ENERGY
MARKETING (U.S.), INC.,
Intervenors,
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent.
On Petition for Review of an Order of the
Federal Energy Regulatory Commission
Argued and Submitted
May 5, 2015—Portland, Oregon
Filed August 10, 2015
Before: William A. Fletcher and Andrew D. Hurwitz,
Circuit Judges and Donald E. Walter, * Senior District
Judge.
Opinion by Judge Hurwitz
*
The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for the Western District of Louisiana, sitting by
designation.
6 NRU V. FERC
SUMMARY **
Federal Energy Regulatory Commission
The panel denied petitions for review, brought by
wholesale electricity customers, seeking review of orders by
the Federal Energy Regulatory Commission that require the
Bonneville Power Administration – a federal agency that
both markets electricity and operates a large portion of the
transmission grid in the Pacific Northwest – to provide
transmission services on terms “not unduly discriminatory
or preferential.”
Petitioners were either “preference customers” of the
Bonneville Power Administration, or trade organizations
representing the interests of the Bonneville Power
Administration’s preference customers. Petitioners alleged
that FERC exceeded its statutory authority in issuing a
nondiscrimination mandate, and FERC failed to provide
reasoning for its decision.
The panel held that petitioners demonstrated Article III
standing where petitioners established injury in fact,
causation, and redressability.
The panel held that petitioners lacked statutory standing
to pursue their claims because they were not “aggrieved”
within the meaning of Federal Power Act § 313(b) and
Administrative Power Act § 10. APA “aggrievement”
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NRU V. FERC 7
requires that the alleged protected interest be “arguably
within the zone of interests to be protected or regulated by
the statute in question.” The panel held that petitioners’
interests were not arguably protected by § 211A of the
Federal Power Act.
COUNSEL
Zabyn Towner, Portland, Oregon, for Petitioner Pacific
Northwest Generating Cooperative.
Betsy Bridge (argued), Portland, Oregon, for Petitioner
Northwest Requirements Utilities.
Irene A. Scruggs, Portland, Oregon, for Petitioner Public
Power Council.
Thomas L. Blackburn and Peter K. Matt, Schiff Hardin LLP,
Washington, D.C., for Petitioners National Rural Electric
Cooperative Association and American Public Power
Association.
Sarah Dennison-Leonard, Portland, Oregon, for Petitioner
The City of Seattle.
Giuseppe Fina, Assistant General Counsel, and Anne L.
Spangler, General Counsel, Everett, Washington, for
Petitioner Public Utility District No. 1 of Snohomish
County, Washington.
David L. Morenoff, Acting General Counsel, Robert H.
Solomon, Solicitor, and Beth G. Pacella (argued), Senior
Attorney, Washington, D.C., for Respondent Federal Energy
Regulatory Commission.
8 NRU V. FERC
Michael G. Andrea, Spokane, Washington, for Intervenor
Avista Corporation.
Scott G. Seidman, Tonkon Torp, LLP, Portland Oregon, for
Intervenor Portland General Electric Company.
Donald G. Kari and Jason T. Kuzma, Perkins Coie LLP,
Bellevue, Washington, for Intervenor Puget Sound Energy,
Inc.
Paul L. Gale (argued), Troutman Sanders LLP, Irvine,
California; Lara L. Skidmore, Troutman Sanders LLP,
Portland, Oregon, for Respondent-Intervenor Iberdrola
Renewables, LLC.
Stephen C. Hall, Troutman Sanders LLP, Portland, Oregon,
for Respondent-Intervenor Cannon Power Group, LLC.
Kari L. Vander Stoep and Andrew B. Young, K&L Gates
LLP, Seattle, Washington, for Respondents-Intervenors
Northwest and Intermountain Power Producers Coalition
and TransAlta Energy Marketing (U.S.), Inc.
Thomas J. McCormack, Chadbourne & Parke LLP, New
York, New York, for Respondent-Intervenor Eurus
Combine Hills II LLC.
John A. Cameron, Davis Wright Tremaine LLP, Portland,
Oregon, for Respondent-Intervenor Caithness Shepherds
Flat, LLC.
Jay T. Waldron and Sara Kobak, Schwabe, Williamson
&Wyatt, PC, Portland, Oregon; Jeffrey B. Erb, PacifiCorp,
Portland, Oregon, for Respondent-Intervenor PacifiCorp.
NRU V. FERC 9
OPINION
HURWITZ, Circuit Judge:
These are consolidated petitions for review of orders by
the Federal Energy Regulatory Commission (“FERC”) that
require the Bonneville Power Administration—a federal
agency that both markets electricity and operates a large
portion of the transmission grid in the Pacific Northwest—
to provide transmission services on terms “not unduly
discriminatory or preferential.” Bonneville has complied
with the orders, and is not a party to this proceeding. The
petitioners, instead, are wholesale electricity customers of
Bonneville who challenge the orders on substantive and
procedural grounds. We conclude that they lack statutory
standing to pursue their claims.
I
A
Bonneville markets electric power generated at federal
hydroelectric dams in the Columbia River Basin. Its power
customers are primarily public and private utilities that
purchase wholesale electricity. See Nw. Envt’l Def. Ctr. v.
Bonneville Power Admin., 477 F.3d 668, 672–73 (9th Cir.
2007); Ass’n of Pub. Agency Customers, Inc. v. Bonneville
Power Admin., 126 F.3d 1158, 1164 (9th Cir. 1997).
Bonneville also operates 80% of the electricity transmission
network in the Pacific Northwest. Thus, Bonneville supplies
interconnection and transmission services to public and
private power generators, including itself.
Bonneville is self-funded and must recover its costs
through rates charged to customers. See 16 U.S.C.
§§ 838g, 839e(a)(1); see also id. § 839(4). Its rates are
“based upon [its] total system costs.” Id. § 839e(a)(2)(B).
10 NRU V. FERC
Bonneville is also subject to a potentially conflicting
mandate to market power “with a view to encouraging the
widest possible diversified use of electric power at the
lowest possible rates to consumers consistent with sound
business principles.” Id. § 838g; see also Ass’n of Pub.
Agency Customers, 126 F.3d at 1164.
Bonneville must also comply with various
environmental protection requirements. The amount of
water that can be stored behind Bonneville’s dams is limited.
See, e.g., Bonneville Power Admin., BPA’s Interim
Environmental Redispatch and Negative Pricing Policies,
Administrator’s Final Record of Decision 11 (May 2011)
(“2011 ROD”), http://tinyurl.com/pcgt3pj. But so is the
amount of water that can pass over a dam’s spillway. See
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422
F.3d 782, 789 & n.3 (9th Cir. 2005) (per curiam); Nat’l
Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 92 F. Supp. 2d
1072, 1074–75 (D. Or. 2000); 2011 ROD 5–6. Under the
Clean Water Act, states have authority to cap the amount of
dissolved gas in Columbia River Basin water. See Nat’l
Wildlife, 92 F. Supp. 2d at 1074–75; 2011 ROD 5–6.
Dissolved gas, which harms fish, increases when water is
spilled over a dam; spill must therefore “be carefully
managed to avoid gas supersaturation.” Nat’l Wildlife, 422
F.3d at 789.
Bonneville is further constrained by the realities of
operating hydroelectric dams on an electrical grid. Water
that cannot be spilled over Bonneville’s dams must pass
through the turbines, generating electricity. This electricity
must be consumed to maintain transmission stability.
Reliability standards therefore require Bonneville to
maintain the balance between supply and demand on its
electrical grid. 2011 ROD 7.
NRU V. FERC 11
B
The demand for electricity is finite. When spill must be
limited, Bonneville can dispose of excess electricity by
marketing it to other generators at low prices or giving it
away, thereby displacing electricity those sources would
ordinarily generate. Fossil fuel and nuclear generators
gladly accept such inexpensive hydropower because it
allows them to save on fuel costs by reducing their more
costly output or shutting down entirely. Wind generators, in
contrast, do not have fuel costs, and are federally subsidized
based on the amount of energy they generate. The
availability of free hydropower therefore does not generally
cause them to reduce production.
In response to a substantial increase in wind generation
on Bonneville’s transmission system and anticipated high
water levels in the Columbia River Basin, Bonneville
promulgated an Environmental Redispatch Policy (“ER
Policy”) in May 2011, to remain in effect until the end of
March 2012. Id. at 8, 14–17. The ER Policy allowed
Bonneville to curtail the customers’ electricity generation
unilaterally through “Dispatch Orders.” Id. at 8, 16–17.
Dispatch Orders were to be issued only as a last resort during
“overgeneration events” when spill limits were reached,
water levels required Bonneville to generate electricity that
outpaced demand, and excess hydropower could not be
disposed of at low or zero prices or by curtailing non-wind
generation. Id. at 14–16.
Under the ER Policy, Bonneville redispatched wind
generation for over two hundred hours between May 18 and
June 18, 2011, curtailing 5.4% of the wind generation on
Bonneville’s transmission system during that period.
Bonneville initially estimated that this caused wind
12 NRU V. FERC
generators to lose approximately $50 million in federal
credits, although the estimate was later reduced.
C
On June 17, 2012, a group of wind generators filed a
FERC complaint against Bonneville, seeking an order that
Bonneville “immediately revise its [ER Policy] to comport
with the undue discrimination standards of [Federal Power
Act] Section 211A.” Several wholesale energy customers of
Bonneville and trade organizations intervened, contending
that “[i]f the Commission were to order [Bonneville] to pay
the requested compensation to the Complainants,
[Bonneville] could pass on those costs to its customers . . .
in future rate proceedings.” On December 7, 2011, FERC
concluded that the ER Policy “results in noncomparable
transmission service that unfairly treats non-Federal [i.e.,
wind] generating resources connected to Bonneville’s
transmission system,” and ordered Bonneville,
pursuant to section 211A of the FPA, . . . to
file . . . tariff revisions to address the
comparability concerns raised in this
proceeding in a manner that provide[s] for
transmission service on terms and conditions
that are comparable to those under which
Bonneville provides transmission services to
itself and that are not unduly discriminatory
or preferential.
FERC emphasized that its order was prospective and that it
was “making no determinations as to whether actions taken
by Bonneville in the past, whether pursuant to the
Environmental Redispatch Policy or otherwise, were
prohibited.”
NRU V. FERC 13
D
In order to comply with the December 2011 FERC order,
on March 6, 2012, Bonneville submitted for FERC approval
a temporary Oversupply Management Protocol (“OMP I”).
The OMP I, to be effective until March 2013, permitted
Bonneville to unilaterally redispatch wind generation during
oversupply conditions, but called for “compensation to
renewable generators for the costs they incur from being
displaced,” at a rate of 50% of the costs they incurred. On
December 20, 2012, FERC conditionally approved the OMP
I “as a balanced interim measure that addressed Bonneville’s
oversupply problems,” but found that the cost-sharing
arrangement was not equitable and ordered Bonneville to
propose a different scheme.
Bonneville filed a new compliance protocol on March 1,
2013 (“OMP II”), but was granted leave to defer revising the
cost-allocation component of the protocol pending the filing
of a rate-setting proceeding pursuant to the Northwest Power
Act. See Order on Compliance & Revised Oversupply
Management Protocol Proposal, 149 F.E.R.C. ¶ 61,044,
¶¶ 10–12 (2014). 1 The OMP II thus unbundled the rate and
non-rate aspects of the new redispatch policy; aside from
extending the previous policy through September 2015, it
left other material provisions unchanged. Order Confirming
& Approving Rate on a Final Basis, 149 F.E.R.C. ¶ 61,043,
¶¶ 10, 22 (2014); Order on Compliance & Revised
Oversupply Management Protocol Proposal, 149 F.E.R.C.
¶ 61,044, ¶¶ 10–11, 45–46, 52. In early 2014, Bonneville
promulgated a Final Record of Decision in the Northwest
1
The motion for judicial notice of this decision and the decision in
Order Confirming & Approving Rate on a Final Basis, 149 F.E.R.C.
¶ 61,043 (2014), is granted.
14 NRU V. FERC
Power Act rate-setting proceeding with a new cost-
allocation methodology. See Order Confirming &
Approving Rate on a Final Basis, 149 F.E.R.C. ¶ 61,043, ¶ 9;
Bonneville Power Admin., OS-14 Bonneville Oversupply
Rate Proceeding, Administrator’s Record of Decision 22, 47
(Mar. 2014) (“2014 ROD”), http://tinyurl.com/nl3oyvq. 2
This methodology allocated oversupply costs to all
generators using Bonneville’s transmission services that
were in operation during an “oversupply event”—i.e., when
redispatch was in effect—based on the proportion of
Bonneville’s overall transmission that each generator was
scheduled to use during the event. Order on Compliance &
Revised Oversupply Management Protocol Proposal,
149 F.E.R.C. ¶ 61,044, ¶ 13. Bonneville estimated that
under this new formula, it would bear approximately 85% of
the redispatch costs for oversupply conditions that occurred
in 2012. See id. ¶ 13 n.22; 2014 ROD 47. Redispatch costs
falling on Bonneville would be “recovered from power
customers” under a preexisting formula. 2014 ROD 43.
On October 16, 2014, FERC found this methodology
compliant with its nondiscrimination mandate. Order on
Compliance & Revised Oversupply Management Protocol
Proposal, 149 F.E.R.C. ¶ 61,044, ¶ 39. FERC also
confirmed that “the non-rate terms of Bonneville’s [OMP I],
taken together with Bonneville’s cost allocation
methodology . . . , result in comparable transmission
service,” and that because “[t]he [OMP II] is substantially
similar to the [OMP I] . . . the rationale supporting
2
We grant the petitioners’ motion to take judicial notice of this
document. See Transmission Agency of N. Cal. v. Sierra Pac. Power
Co., 295 F.3d 918, 924 n.3 (9th Cir. 2002).
NRU V. FERC 15
conditional acceptance of the non-rate terms and conditions
of the [OMP I] . . . appl[ies] with equal force to the [OMP
II].” Id. ¶ 52. 3
E
In January 2012, shortly before Bonneville promulgated
the OMP I, various parties, including Bonneville and
Bonneville power customers and trade organizations that
had intervened in the FERC proceedings, filed petitions for
rehearing of FERC’s December 2011 order. FERC denied
these petitions on December 20, 2012. In January 2013, the
power customers requested rehearing of the December 20
order, raising the question of whether FERC in its previous
orders had “requir[ed] Bonneville to act in a manner that
violates its other governing statutes.” FERC denied the
motion on June 26, 2013.
F
Before us are various consolidated petitions for review
of the FERC orders. The petitioners, intervenor-respondents
in the proceedings below, are either “preference customers”
of Bonneville—entities with statutory preferences to buy
wholesale electricity, see 16 U.S.C. § 832c(a), (d)—or trade
organizations representing the interests of Bonneville’s
3
Because the rate component of the OMP II was proposed in a rate-
setting proceeding, approval was also required under the Northwest
Power Act; FERC granted that approval by separate order on the same
day. See Order Confirming & Approving Rate on a Final Basis,
149 F.E.R.C. ¶ 61,043, ¶¶ 1, 22.
16 NRU V. FERC
preference customers. Bonneville does not challenge the
FERC orders. 4
The petitioners raise two claims. First, they argue FERC
exceeded its statutory authority in issuing the
nondiscrimination mandate because § 211A only permits
regulation of “transmission services,” 16 U.S.C. § 824j-1(b),
and redispatch involves generation, not transmission.
Second, they argue FERC failed to provide reasoning for its
decision to issue the nondiscrimination mandate and to
consider relevant evidence.
Our jurisdiction to review the petitions is governed by
§ 313(b) of the FPA, 16 U.S.C. § 825l(b), and § 10 of the
Administrative Procedure Act, 5 U.S.C. § 702. 5 Before
considering the claims, however, we must assess the
petitioners’ constitutional and statutory standing. See Ass’n
of Pub. Agency Customers v. Bonneville Power Admin., 733
F.3d 939, 949–50 (9th Cir. 2013).
4
Bonneville initially filed two petitions for review of the FERC orders,
but voluntarily dismissed them before the opening briefs in the
consolidated cases were filed.
5
The substantive challenge arises under the FPA; we have treated
procedural challenges to FERC actions as arising under both the FPA
and the APA—both of which provide for review on “arbitrary and
capricious” grounds. See Cal. Trout v. FERC, 572 F.3d 1003, 1012 n.6
(9th Cir. 2009); see also Friends of Cowlitz v. FERC, 253 F.3d 1161,
1165–66 (9th Cir.) (finding jurisdiction under the FPA and APA),
amended on other grounds by 282 F.3d 609 (2001).
NRU V. FERC 17
II
To satisfy Article III standing requirements, the
petitioners must establish injury in fact, causation, and
redressability. 6 See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992). The petitioners have the burden to
demonstrate a “substantial probability” of standing. Sierra
Club v. EPA, 292 F.3d 895, 898–99 (D.C. Cir. 2002).
Standing turns on the facts that existed when the petitions
were filed. See D’Lil v. Best W. Encina Lodge & Suites, 538
F.3d 1031, 1036 (9th Cir. 2008); N.M. Att’y Gen. v. FERC,
466 F.3d 120, 122 (D.C. Cir. 2006) (per curiam).
A
An injury in fact is “an invasion of a legally protected
interest which is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical.”
Lujan, 504 U.S. at 560 (citations, footnote, and quotation
marks omitted). A future injury need not be “literally
certain,” but there must be a “substantial risk” that it will
occur. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1150
n.5 (2013); see Munns v. Kerry, 782 F.3d 402, 409–10 (9th
6
Petitioners American Public Power Association, National Rural
Electric Cooperative Association, Northwest Requirements Utilities, and
Public Power Council are trade organizations representing the interests
of Bonneville’s “preference customers.” Their standing as organizations
depends on whether their “members would otherwise have standing to
sue in their own right, the interests at stake are germane to the
organization[s’] purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in the
lawsuit.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc.,
528 U.S. 167, 181 (2000). It is plain that the second and third
requirements are satisfied, and thus the standing inquiry for the
association petitioners and customer petitioners is the same.
18 NRU V. FERC
Cir. 2015); see also San Luis & Delta-Mendota Water Auth.
v. United States, 672 F.3d 676, 701 (9th Cir. 2012)
(“[T]hreatened injury constitutes ‘injury in fact.’”).
The petitioners claim they suffered increased energy
prices as a result of the nondiscrimination mandate. Because
financial harm in the form of increased prices is concrete and
particularized, see Aluminum Co. of Am. v. Bonneville Power
Admin., 903 F.2d 585, 590 (9th Cir. 1989), the only question
is whether, at the time the petitions were filed, this injury
was imminent.
It plainly was. The December 2011 order found “that
Bonneville’s [ER Policy] results in noncomparable
transmission service” and “direct[ed] Bonneville to file . . .
tariff revisions that address the comparability concerns
raised in this proceeding.” Bonneville responded by revising
the redispatch policy to provide compensation to
redispatched generators. Because Bonneville is statutorily
required to operate on a cost-plus basis, the logical “side-
effect” of an increase in costs is “an increase in the rates paid
by . . . customers.” Pac. Nw. Generating Coop. v. Dep’t of
Energy, 580 F.3d 800, 821 (9th Cir. 2008) (citing 16 U.S.C.
§ 839e(a)(2)); see also Nw. Envt’l Def. Ctr., 477 F.3d at 673
(“As a self-financing power marketing agency, [Bonneville]
must set its prices high enough to cover its costs.”). At the
time of filing, there was therefore a substantial risk that
redispatch costs would be passed through to the petitioners.
See Ass’n of Pub. Agency Customers, 733 F.3d at 952–53
(concluding that retail customers of Bonneville’s wholesale
energy buyers suffered injury in fact sufficient to permit
them to challenge a settlement entered by Bonneville that
would increase Bonneville’s costs because the customers’
“pass-through” contracts required them to absorb increases
in the cost of wholesale energy); Cent. Ariz. Water
Conservation Dist. v. EPA, 990 F.2d 1531, 1537–38 (9th Cir.
NRU V. FERC 19
1993) (concluding that customers of a power generator had
suffered injury in fact from an EPA rule requiring the
reduction of the generator’s emissions, as the generator’s
costs would likely be passed on to the customers). 7
B
To satisfy the causation requirement, the petitioners
“must show that the injury is causally linked or ‘fairly
traceable’” to the FERC orders, and not the result of
independent choices by a party not before the Court. Wash.
Envt’l Council v. Bellon, 732 F.3d 1131, 1141 (9th Cir.
2013). The agency actions need not be the sole source of
injury, and a “causal chain does not fail simply because it
has several links, provided those links are not hypothetical
or tenuous and remain plausible.” Id. at 1141–42. When the
petitioner “is not [it]self the object of the government action
or inaction [it] challenges, standing is not precluded,” but it
may be “substantially more difficult to establish.” Lujan,
504 U.S. at 562 (quotation marks omitted).
Although electricity rate increases to the petitioners were
the result of actions by Bonneville, that non-party’s choices
were not “unfettered” in a way that breaks causation. Id.
Because it is undisputed that unilateral redispatch of wind
generation is sometimes required for Bonneville to comply
with various statutory requirements during “oversupply
events,” Bonneville’s only realistic response to the
nondiscrimination mandate was to compensate wind
generators for redispatching them. This compensation might
7
Although the nondiscrimination mandate was prospective only,
oversupply conditions in 2012 had already caused Bonneville to accrue
$2.7 million in expenses (which were indeed ultimately included in
subsequent rate increases). See Order Confirming & Approving Rate on
a Final Basis, 149 F.E.R.C. ¶ 61,043, ¶ 10.
20 NRU V. FERC
have taken a variety of forms, see, e.g., Order Confirming &
Approving Rate on a Final Basis, 149 F.E.R.C. ¶ 61,043,
¶ 11 (noting various cost-allocation possibilities), but any
compensation would increase Bonneville’s costs—which,
given Bonneville’s cost-plus business model, would in turn
increase prices for the petitioners. The FERC orders thus
had a determinative effect on the petitioners regardless of
what course of action Bonneville ultimately undertook, and
the causation requirement is satisfied. See Bennett v. Spear,
520 U.S. 154, 169 (1997) (“While, as we have said, it does
not suffice if the injury complained of is the result of the
independent action of some third party not before the court,
that does not exclude injury produced by determinative or
coercive effect upon the action of someone else.”
(alterations, citation, emphasis, and quotation marks
omitted)); Ass’n of Pub. Agency Customers, 733 F.3d at
953–54 (finding causation when nonparty’s actions were
necessarily determined by challenged actions of party).
C
Whereas “causality examines the connection between
the alleged misconduct and injury, . . . redressability
analyzes the connection between the alleged injury and
requested judicial relief.” Wash. Envt’l, 732 F.3d at 1146.
“Redressability does not require certainty, but only a
substantial likelihood that the injury will be redressed by a
favorable judicial decision.” Id.
Redress for the petitioners in the form of lower
electricity rates depends on whether Bonneville would revert
to a compensation-free redispatch policy if the FERC orders
were invalidated. To be sure, substantial effort had already
been expended in promulgating and approving new
redispatch policies and corresponding electricity rates, and
this effort would not automatically be undone if the orders
NRU V. FERC 21
were invalidated. But even if amending the current policy
were not worth the effort, the OMP II expires in September
2015, see Order Confirming & Approving Rate on a Final
Basis, 149 F.E.R.C. ¶ 61,043, ¶ 10, and increases in wind
generation on Bonneville’s grid make future oversupply
crises increasingly likely, see 2011 ROD 8. There is
therefore a substantial likelihood that new redispatch
policies will be promulgated for the near future. And given
that Bonneville is required to provide “the lowest possible
rates to consumers consistent with sound business
principles,” 16 U.S.C. § 838g; see also id. § 839f(b)
(requiring that Bonneville conduct its affairs in a “sound and
businesslike manner”); Pac. Nw. Generating Coop. v.
Bonneville Power Admin., 596 F.3d 1065, 1080–81 (9th Cir.
2010) (invalidating a contract requiring Bonneville to pay
“up to almost $32 million over a nine month period” because
Bonneville would “receive nothing in return”), there is also
a substantial likelihood that policies promulgated in the
absence of a § 211A nondiscrimination mandate would be
more favorable to the petitioners. Invalidation of the FERC
orders would, accordingly, provide a sufficient likelihood of
redress for Article III purposes. 8
8
The petitioners’ challenge on the merits is part substantive and part
procedural, and outright invalidation is therefore only one possible
outcome. But this has no bearing on the Article III standing inquiry
because, under the “procedural rights” doctrine, uncertainty regarding
whether an agency will stay its course after following proper procedures
on remand does not undermine redressability. See Mendoza v. Perez,
754 F.3d 1002, 1010 (D.C. Cir. 2014).
22 NRU V. FERC
III
The petitioners must demonstrate not only Article III
standing, but also statutory standing. 9 See Ass’n of Pub.
Agency Customers, 733 F.3d at 949–50; City of Redding, 693
F.3d at 835. This requires that the petitioners have been
“aggrieved” within the meaning of FPA § 313(b) and APA
§ 10. 10 APA “aggrievement” requires that “the interest
sought to be protected by the complainant . . . be arguably
within the zone of interests to be protected or regulated by
the statute in question,” Ass’n of Pub. Agency Customers,
733 F.3d at 954—in this case, § 211A of the FPA. A similar
standard applies to substantive challenges brought directly
under the FPA. See Transmission Agency of N. Cal. v.
FERC, 495 F.3d 663, 670 (D.C. Cir. 2007) (applying the
zone-of-interests test); see also Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1388 (2014)
(“[The zone-of-interests test] applies to all statutorily created
causes of action; . . . it is a requirement of general
application; and . . . Congress is presumed to legislate
against the background of the zone-of-interests limitation,
which applies unless it is expressly negated.” (alteration and
quotation marks omitted)). Accordingly, statutory standing
for all claims turns on whether the petitioners’ interests are
arguably protected by § 211A. See Liquid Carbonic Indus.
Corp. v. FERC, 29 F.3d 697, 702–04 (D.C. Cir. 1994). This
test “is not meant to be especially demanding,” Match-E-Be-
9
Unlike Article III standing, however, “statutory standing” does not
implicate our subject-matter jurisdiction. Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1387 n.4 (2014).
10
Procedural aggrievement is cognizable under APA § 10 and FPA
§ 313(b), see Cal. Trout, 572 F.3d at 1012 n.6, whereas substantive
aggrievement is cognizable exclusively under FPA § 313(b).
NRU V. FERC 23
Nash-She-Wish Band of Pottawatomi Indians v. Patchak,
132 S. Ct. 2199, 2210 (2012), but is not toothless, see, e.g.,
Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940
(9th Cir. 2005) (“[W]hen, as here, the plaintiff is not the
subject of the contested regulatory action, the test denies a
right of review if the plaintiff’s interests are so marginally
related to or inconsistent with the purposes implicit in the
statute that it cannot reasonably be assumed that Congress
intended to permit the suit.” (quotation marks omitted)); see
also Air Courier Conference of Am. v. Am. Postal Workers
Union, AFL-CIO, 498 U.S. 517, 530–31 (1991) (dismissing
under APA zone-of-interests principles); Grand Council of
Crees (of Quebec) v. FERC, 198 F.3d 950, 954–60 (D.C. Cir.
2000) (same).
A
Under § 211A, FERC
may, by rule or order, require an
unregulated transmitting utility to provide
transmission services—
(1) at rates that are comparable to
those that the unregulated
transmitting utility charges itself;
and
(2) on terms and conditions (not
relating to rates) that are
comparable to those under which
the unregulated transmitting
utility provides transmission
services to itself and that are not
unduly discriminatory or
preferential.
24 NRU V. FERC
16 U.S.C. § 824j-1(b). This provision was enacted as part of
the Energy Policy Act of 2005 (“EP Act”), Pub. L. No. 109-
58, 119 Stat. 594, a comprehensive statute that, among other
things, expanded FERC’s authority to regulate energy
markets. See, e.g., Hunter v. FERC, 711 F.3d 155, 157 (D.C.
Cir. 2013). Section 211A extended FERC’s jurisdiction over
discrimination in electricity transmission to “unregulated
transmitting utilities,” including government agencies like
Bonneville and electric cooperatives. 11 See 16 U.S.C.
§ 824(f). Under § 211A, FERC has the discretion to prevent
discrimination in unregulated utilities’ transmission services
on a prospective basis. Id. § 824j-1(b).
Section 211A was designed to foster an open and
competitive energy market by promoting access to
transmission services on equal terms. This is evident from
the language of the provision, which prevents
anticompetitive behavior by utilities that seek to stifle
competitors’ generation through control over transmission.
See New York v. FERC, 535 U.S. 1, 10 (2002) (“[M]arket
power through control of transmission is the single greatest
impediment to competition.”). It is also evident from the
section’s title, which mentions “open access,” and from the
statutory and historical context of the provision, which
places it as a recent step in the legislative and administrative
effort to progressively open energy markets and level the
playing field for generators. See, e.g., 151 Cong. Rec. S7465
(daily ed. June 28, 2005) (statement of Sen. Kyl) (“[T]he
Energy bill expands jurisdiction over those stakeholders in
11
Such entities were, with some exceptions, previously excluded from
FERC’s jurisdiction and therefore generally not subject to other statutory
nondiscrimination mandates enforced by FERC. See 16 U.S.C.
§§ 824d(b), 824e(a) (permitting FERC to regulate discrimination in
electricity transmission by investor-owned utilities).
NRU V. FERC 25
electric markets that were previously unregulated by the
[Commission]. [It] . . . addresses the Federal Energy
Regulatory Commission’s efforts to provide open access
over all transmission facilities in the United States . . . .”).
B
The interests of Bonneville’s wholesale energy
customers and their organizational allies do not align with
these goals. Ultimate consumers of energy plainly stand to
benefit from open access and increased competition in
energy markets. See Order No. 890, Preventing Undue
Discrimination & Preference in Transmission Serv.,
F.E.R.C. Stats. & Regs. ¶ 31,241, ¶ 60, 72 Fed. Reg. 12,266,
12,276 (2007) (noting that impeded access to transmission
“can have significant cost impacts on consumers”). But the
interests of Bonneville’s wholesale energy customers are
different. They seek to reduce Bonneville’s costs, which are
passed on to them by statutory mandate. This goal is, at best,
“orthogonal” to the purposes of a statutory provision
intended to increase access to transmission markets. 12
Grand Council of Crees, 198 F.3d at 958; cf. Ashley Creek,
420 F.3d at 936–37, 940 (noting that bare economic interests
are outside the zone of interests of the National
Environmental Policy Act, which protects environmental
interests, regardless of whether economic and environmental
interests coincide). Indeed, as this litigation demonstrates, it
can be diametrically opposed to the statute’s purposes.
12
Bonneville’s electricity prices are, moreover, heavily regulated by
an intricate array of other statutory provisions, and “to hold [the
petitioners have statutory] standing would be to create a considerable
potential for judicial intervention that would distort the regulatory
process.” Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 871 (D.C.
Cir. 2001) (per curiam) (quotation marks omitted).
26 NRU V. FERC
Congress sought to open access and increase competition,
while the petitioners seek to reduce access by asserting
Bonneville’s unilateral right to transmit only its own
electricity during overgeneration events. Cf. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582–
83 (1986) (“Nor can respondents recover damages for any
conspiracy by petitioners to charge higher than competitive
prices . . . . Such conduct would indeed violate the Sherman
Act, but it could not injure respondents: as petitioners’
competitors, respondents stand to gain from any conspiracy
to raise the market price . . . .” (citations omitted)). The
likelihood that Bonneville’s wholesale energy customers
will “frustrate [rather] than . . . further [the] statutory
objectives” renders them unreliable litigants under § 211A.
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 397 n.12 (1987).
The zone-of-interests test is therefore not satisfied, and the
petitioners lack statutory standing.
IV
The petitions for review are therefore DENIED.