California Energy Com'n v. Johnson, No. 83-7962
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | William David Sprayberry, Judith A. Bearzi, Vancouver, Wash.; Before KENNEDY, ALARCON, and FERGUSON; KENNEDY |
| Citation | 767 F.2d 631 |
| Parties | CALIFORNIA ENERGY COMMISSION, a State Agency; and Charles R. Imbrecht and Geoffrey D. Commons, individuals, Petitioners, v. Peter JOHNSON, as Administrator of the Bonneville Power Administration, Department of Energy; Donald Hodel, as Secretary of the Department of Energy; Federal Energy Regulatory Commission; and the United States of America, Respondents. |
| Docket Number | No. 83-7962 |
| Decision Date | 01 August 1985 |
Page 631
R. Imbrecht and Geoffrey D. Commons, individuals,
Petitioners,
v.
Peter JOHNSON, as Administrator of the Bonneville Power
Administration, Department of Energy; Donald Hodel, as
Secretary of the Department of Energy; Federal Energy
Regulatory Commission; and the United States of America, Respondents.
Ninth Circuit.
Decided Aug. 1, 1985.
Page 632
Jonathan Blees, William M. Chamberlain, Sacramento, Cal., for petitioners.
William David Sprayberry, Judith A. Bearzi, Vancouver, Wash., J. Richard Baxendale, Portland, Or., for Public Power Council.
John A. Cameron, Jr., Jack G. Collins, Thomas C. Lee, Kurt R. Casad, BPA Portland, Or., for respondents.
M. Laurence Popofsky, Eric Redman, Dian M. Grueneich, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., Eric Redman, Heller, Ehrman, White & McAuliffe, Seattle, Wash., Michael C. Dotten, Heller, Ehrman, White & McAuliffe, Portland, Or., for Direct Service Indus.: Customers of BPA:
Petition for Review of 1983 Rate Determination of the Bonneville Power Administration.
Before KENNEDY, ALARCON, and FERGUSON, Circuit Judges.
KENNEDY, Circuit Judge:
Petitioners filed this original action seeking review by this court of certain aspects of the Bonneville Power Administration ("BPA") 1983 wholesale power rates, promulgated under authority of the Pacific Northwest Electric Power Planning and Conservation Act (the "Act"), 16 U.S.C. Secs. 839-839(h) (1982).
Petitioners are the California Energy Commission ("CEC") and two of its individual members. CEC, a statutory agency responsible for adoption and implementation of California energy policy, forecasts energy needs and certifies construction of power plants in California. Respondents are the United States, the BPA Administrator, the Secretary of the Department of Energy, and the Federal Energy Regulatory Commission (FERC). Several public and private BPA customers have been granted leave to intervene.
Respondents move to dismiss this case for lack of jurisdiction. 1 We grant the motion. This court lacks jurisdiction under the Act because the 1983 rates are not yet final. This case, moreover, does not entail extraordinary circumstances that would warrant exercise of our power under the All Writs Act, 28 U.S.C. Sec. 1651(a) (1982).
The BPA Administrator filed proposed 1983 wholesale power and transmission rates with FERC on October 3, 1983. BPA requested waiver of FERC's ninety-day advance filing requirement and sought interim approval, enabling the rates to go into effect on November 1, 1983. In an order issued October 26, 1983, FERC granted BPA's request for waiver and granted interim approval of the 1983 wholesale power rates. FERC permitted the rates to go into effect November 1, 1983, on an interim basis, subject to refund with interest, pending FERC final confirmation and approval, or disapproval. Order Granting Interim Approval of Rates in Part, Granting Interventions, Denying Motion for Partial Summary Disposition, and Extending Prior Confirmation of Transmission Rates, 25 FERC (CCH) p 61,140 at 61,376 (October 26, 1983). FERC has yet to give final confirmation and approval to the 1983 rates.
CEC challenges the 1983 rate for sale of power to customers outside the Pacific Northwest. In order to understand the nature of CEC's complaint, it is necessary to explore briefly the BPA system.
BPA assumes initially that each operating year will be equivalent to the driest year in recorded history. The power that would be generated under such conditions is considered firm power. BPA is obligated to provide firm power, without interruption, to certain classes of customers in the Pacific Northwest. Because no operating
Page 633
year has matched the driest year, BPA has always produced a surplus of power. That surplus is sold on a nonfirm, or interruptible, basis. Nonfirm energy is most plentiful during spill conditions, when BPA has so much excess that it must spill water rather than use it to produce energy. At such times, nonfirm energy is sold at "spill rates."Nonfirm energy may be sold outside the Pacific Northwest when no customer in the region will purchase it at established rates. California is the main purchaser of nonfirm power, which is transported to California via the Pacific Intertie. Approximately two-thirds of the power transported over the Intertie is produced by federal facilities. The remaining one-third is produced by Pacific Northwest utilities and transported over the Intertie pursuant to a contract, styled an Exportable Agreement, between BPA and the utilities. See Central Lincoln Peoples' Utility District v. Johnson, 735 F.2d 1101, 1106-07 (9th Cir.1984) (Central Lincoln II ).
CEC alleges that the 1983 nonfirm rates unlawfully discriminate against California ratepayers, and that the rates are based not upon the cost of providing service but with a view toward subsidizing rates charged Pacific Northwest customers. CEC alleges that the rates suppress competition among Pacific Northwest utilities for the California energy market because the nonfederal entities transporting energy over the Intertie all charge the going BPA rate. CEC complains that, under spill conditions, the BPA Administrator retains unbridled discretion to reestablish rates. CEC also alleges that BPA did not properly follow ratemaking procedure because the rates adopted allegedly vary widely from the proposed rates upon which hearings were conducted.
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