Avista Corporation v. Bonneville Power Administration

FILED
NOT FOR PUBLICATION MAY 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AVISTA CORPORATION; et al. Nos. 09-70265, 09-70268, 09-
70292, 09-70313, 09-70316, 09-
Petitioners, 70317, 09-70640
PACIFIC NORTHWEST GENERATING BPA No. 09PB-13021
COOPERATIVE; et al.,
Intervenors,
MEMORANDUM *
v.
BONNEVILLE POWER
ADMINISTRATION; UNITED STATES
DEPARTMENT OF ENERGY,
Respondents.
On Petition for Review of an Order of the
Bonneville Power Administration
Argued and Submitted May 4, 2010
Portland, Oregon
Before: KLEINFELD, BEA and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
These consolidated petitions for review arise out of the latest set of Regional
Dialogue contracts offered by the Bonneville Power Administration (“BPA”) to its
customers. We deny the petition filed by the Public Utility District No. 1 of Grays
Harbor County, Washington (“Grays Harbor”), No. 09-70640. We dismiss the
other consolidated petitions, Nos. 09-70265, 09-70268, 09-70292, 09-70313, 09-
70316, 09-70317, for lack of jurisdiction because those petitions are not ripe.
Grays Harbor voluntarily waived its rights to billing credits and participation
in the Residential Exchange Program under sections 5 and 6 of the Pacific
Northwest Electric Power Planning and Conservation Act of 1980, 16 U.S.C.
§§ 839c–d (“Northwest Power Act”). Waivers of rights are not rendered
involuntary “whenever motivated by the . . . desire to accept . . . certainty or
probability . . . rather than face a wider range of possibilities” representing
unknown better or worse outcomes. Brady v. United States, 397 U.S. 742, 751
(1970).
In the Regional Dialogue Contract Record of Decision, the BPA clearly
stated that customers were not required to sign the Regional Dialogue Contract if
they found its terms unacceptable. Specifically in response to Grays Harbor’s
comments, the BPA explained:
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Customers entitled to participate in billing credits are not being forced to
waive their rights to do so. (The same holds true for the residential
exchange.) BPA is affording customers a choice. They can sign contracts
that are based on tiered rates and, in exchange for the greater pricing
certainty afforded by tiered rates, agree not to request billing credits and to
participate only in a limited fashion in the residential exchange.
Alternatively, BPA will provide customers contracts that are, as has
historically been the case, based on melded cost rates, and that do not require
the customer to limit[] its requests for billing credits or the residential
exchange. In essence, customers are being asked to make their own
decisions as to the pricing certainty they wish to enjoy.
That the BPA promised to offer an alternative contract, but did not make one
immediately available, did not render Grays Harbor’s adoption of its Regional
Dialogue Contract involuntary.
“[A]bsent some affirmative indication of Congress’ intent to preclude
waiver, we . . . presume[] that statutory provisions are subject to waiver by
voluntary agreement of the parties.” United States v. Mezzanatto, 513 U.S. 196,
201 (1995). “[W]e will not interpret Congress’ silence as an implicit rejection of
waivability.” Id. at 203–04. Grays Harbor has not pointed to any provisions of
sections 5 or 6 of the Northwest Power Act that preclude waiver of benefits as
effected in sections 12.1 or 12.2 of its Regional Dialogue Contract.
Section 6(h)(1) of the Northwest Power Act explicitly provides that the BPA
need grant billing credits only “[i]f a customer so requests.” 16 U.S.C.
§ 839d(h)(1).
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Likewise, section 5(c) of the Northwest Power Act requires the BPA to
participate in the Residential Exchange Program only when “a Pacific Northwest
electric utility offers to sell electric power . . . at the average system cost of that
utility’s resources in each year.” 16 U.S.C. § 839c(c). Neither provision limits a
customer’s ability to waive the right to request such benefits nor, in the latter case,
to agree to a particular formula for determining that customer’s “average system
cost.”
Similarly, Grays Harbor has not established a violation of sections 6(e)(1) or
6(k). Although section 6(e)(1) requires the BPA “to the maximum extent
practicable” to “make use of [its] authorities . . . to acquire conservation measures
and renewable resources, to implement conservation measures, and to provide
credits and technical financial assistance for the development and implementation
of such resources and measures,” the provision does not define “maximum extent
practicable.” 16 U.S.C. § 839d(e)(1). Here the BPA has reasonably concluded,
supported by a lengthy administrative record, that seeking waivers of requests for
billing credits from its customers is consistent with its tiered-rate approach to
maximizing conservation efforts. We must defer to the BPA’s reasonable
interpretation of the statute. See Portland Gen. Elec. Co. v. Bonneville Power
Admin., 501 F.3d 1009, 1025 (9th Cir. 2007).
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Likewise, the obligation under section 6(k) to “distribute[] equitably”
various “benefits under this section” does not impose an affirmative obligation on
BPA to provide billing credits, nor does it prevent BPA from seeking waivers of
the right to request such credits. 16 U.S.C. § 839d(k). Accordingly, we reject
Grays Harbor’s challenges to the Regional Dialogue Contract, and conclude that
sections 12.1 and 12.2 of the Regional Dialogue Contract are not contrary to the
Northwest Power Act.
For the reasons stated in California Energy Resources Conservation &
Develop. Comm’n v. Johnson, 807 F.2d 1456, 1463 (9th Cir. 1987), we dismiss as
unripe the other consolidated petitions filed by several Investor Owned Utilities,
which challenge provisions of the BPA’s Regional Dialogue Contracts that give
“Renewable Energy Credits” to the BPA’s preference customers at no extra charge,
but not to the Investor Owned Utilities in this case. The petitions raise challenges
under section 7 of the Northwest Power Act, which defines the BPA’s ratemaking
authority, but the BPA has not yet set rates, nor has the Federal Energy Regulatory
Commission yet approved those rates. Specifically, the Investor Owned Utilities
claim that the transfer of Renewable Energy Credits to preference customers
conflicts with sections 7(b)(1) and 7(g) of the Northwest Power Act by inequitably
allocating benefits, or else making rates not of “general application.” 16 U.S.C.
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§§ 839e(b)(1), (g). Because the BPA has not yet completed a ratemaking
proceeding, and the Investor Owned Utilities are not challenging an actual rate
made in violation of section 7, these particular challenges are not ripe for decision.
See California Energy Resources Conservation & Develop. Comm’n v. Johnson,
807 F.2d at 1463 (“[a] decision at this juncture would resolve a dispute about
hypothetical rates.”). Because the petitions are not ripe for review, there is no
“case or controversy” and thus we have no jurisdiction to review the merits of the
petitions. See City of Seattle v. Johnson, 813 F.2d 1364 (9th Cir. 1987) (dismissing
a challenge to an earlier BPA ruling for lack of jurisdiction because the BPA had
not set rates and FERC had not approved them, and thus the controversy was not
ripe); see also Pac. Nw. Generating Co-op. v. Dep’t of Energy, 580 F.3d 792,
805–06 (9th Cir. 2009) (quoting Pub. Utils. Comm’r of Or. v. BPA, 767 F.2d 622,
629 (9th Cir.1985), for the proposition that a challenge to methodology in the
ratemaking context, dismissed as unripe at this stage, could become reviewable at a
later date because “[i]f FERC fails to correct any defects in the methodology
[which affected ratesetting], redress is available in the court of appeals,” where
“any . . . cognizable challenges will be fully reviewable . . . .”).
PETITION No. 09-70640 DENIED; PETITIONS Nos. 09-70265, 09-
70268, 09-70292, 09-70313, 09-70316, 09-70317 DISMISSED.
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