Pacific Power & Light Co. v. Duncan
Decision Date | 21 October 1980 |
Docket Number | Civ. No. 80-82. |
Citation | 499 F. Supp. 672 |
Parties | PACIFIC POWER & LIGHT COMPANY, Plaintiff, v. Charles William DUNCAN, Jr., Secretary of the United States Department of Energy; Ruth M. Davis, Assistant Secretary of the United States Department of Energy for Resource Application; and Sterling Munro, Administrator of the Bonneville Power Administration, Defendants. Portland General Electric Company, and Public Utility Commissioner of Oregon, Intervenors-Plaintiffs. Public Power Council, Intervenor-Defendant. |
Court | U.S. District Court — District of Oregon |
Hugh Smith, George M. Galloway, Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., for plaintiff.
Sidney I. Lezak, U. S. Atty., Thomas C. Lee, Asst. U. S. Atty., Portland, Or., for government defendants.
James W. Durham, Warren Hastings, Alvin Alexanderson, Portland, Or., for intervenor-plaintiff Portland Gen. Elec.
James M. Brown, Atty. Gen., Paul A. Graham, Asst. Atty. Gen., Dept. of Justice, Salem, Or., for intervenor-plaintiff State of Oregon.
Norman A. Stoll, Alan S. Larsen, Stoll & Stoll, P. C., Portland, Or., for intervenor-defendant.
Rate increases for electricity distributed by the Bonneville Power Administration (BPA) were proposed by its Administrator. An Assistant Secretary of the Department of Energy (DOE) approved the rates on an interim basis under authority delegated to her by the Secretary of Energy. Pursuant to the same delegation order, the Federal Energy Regulatory Commission (FERC) is now reviewing the proposed rate changes. Pacific Power & Light (PP&L) filed this suit against the Secretary, the Assistant Secretary, and the Administrator, challenging the interim rates. Portland General Electric (PGE) and the Public Utility Commissioner of the State of Oregon (PUC) intervened as plaintiffs, and the Public Power Council (PPC) intervened as a defendant.
Before trial, the government filed a motion to dismiss and a motion for summary judgment. I deferred ruling on the motions and conducted an abbreviated trial on stipulated facts. The parties have presented all relevant evidence. For the reasons outlined below, I reach the merits and grant judgment for the defendants.
The problem arises as a result of the transfer of authority over the BPA from the former Federal Power Commission (FPC) and Secretary of the Interior to the new DOE and FERC. The division of responsibility between the DOE and the FERC differs significantly from the division that existed between the FPC and the Secretary of the Interior. Under the new system, proposed rate increases by the BPA and similar entities are subject to interim approval by an Assistant Secretary of the DOE before full consideration by the FERC.
The central issue in this case is whether Congress, in enacting the DOE legislation, granted ratemaking authority for the BPA to the Secretary of Energy. I conclude that it did.
To the extent that plaintiffs base their challenges on contract, the remedy of specific performance is not available against the government. To the extent that the plaintiffs challenge the power of the Secretary of Energy to approve interim rates, I find that the Secretary has such power. To the extent that plaintiffs challenge the procedures employed in promulgating and approving the rates, I find that the defendants followed appropriate procedures. Finally, to the extent that the plaintiffs challenge the substance of the interim rates, I hold that judicial review is precluded because there is "no law to apply."
Accordingly, I grant judgment to the defendants.
I rely upon the following stipulated facts: numbers 1, 5, 19, 25, 26, 27, 28, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 44 and 45. Objections to the relevancy of any of these stipulated facts are overruled. See generally, Port of Astoria, Oregon v. Hodel, 595 F.2d 467, 471-73 (9th Cir. 1979); Natural Resources Defense Council v. Hodel, 435 F.Supp. 590, 591-95 (D.Or.1977) ( ).
1. Are claims under a government contract cognizable in this forum?
2. Does the Secretary of Energy have the authority to approve interim rates of the BPA?
3. Have the plaintiffs been given all the process due them?
4. With respect to the substance of the interim rates, is there any law to apply?
42 U.S.C. § 7192 provides in pertinent part:
42 U.S.C. § 7191 provides in pertinent part:
(a)(1) Subject to the other requirements of this subchapter, the provisions of subchapter II of chapter 5 of title 5 5 U.S.C. §§ 551 et seq. shall apply in accordance with its terms to any rule or regulation, or any order having the applicability and effect of a rule ....
5 U.S.C. § 702 provides for judicial review of agency action, limiting that review by stating:
Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.
5 U.S.C. § 701 also provides in pertinent part that:
As stated in City of Santa Clara, California v. Andrus, 572 F.2d 660, 669 n. 5 (9th Cir.), cert. denied, 439 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978) (quoting East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524, 533-34 (9th Cir. 1972)):
Because the plaintiffs challenge an agency's actions, I am limited to a very narrow scope of review. As a general rule:
Asarco, Inc. v. U.S.E.P.A., 616 F.2d 1153, 1158 (9th Cir. 1980). The scope of review is even more restricted when applied to energy regulatory agencies:
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