PUBLIC UTILITY DISTRICT NO. 1 OF SNOHOMISH COUNTY WASHINGTON v. FEDERAL ENERGY REGULATORY COMMISSION

No. 03-72511, No. 03-74757, No. 04-70712, No. 03-74617, No. 03-74208.

471 F.3d 1053 (2006)

PUBLIC UTILITY DISTRICT NO. 1 OF SNOHOMISH COUNTY WASHINGTON, Petitioner, RELIANT ENERGY SERVICES INC., Intervenor, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. SOUTHERN CALIFORNIA WATER COMPANY, Petitioner, ENRON POWER MARKETING INC., Intervenor, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. ATTORNEY GENERAL, STATE OF NEVADA, Petitioner, BP ENERGY COMPANY; MIRANT AMERICAS ENERGY MARKETING, L.P., Intervenors, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. NEVADA POWER COMPANY; SIERRA PACIFIC POWER COMPANY, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. PUBLIC UTILITY DISTRICT NO. 1 OF SNOHOMISH COUNTY WASHINGTON Petitioner, CALPINE ENERGY SERVICES, L.P.; EL PASO MERCHANT ENERGY L.P.; MORGAN STANLEY CAPITAL GROUP, INC.; MIRANT AMERICAS ENERGY MARKETING, LP; BP ENERGY CO.; ALLEGHENY ENERGY SUPPLY CO., LLC; AMERICAN ELECTRIC POWER SERVICE CORPORATION, Intervenors, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

United States Court of Appeals, Ninth Circuit.

Filed December 19, 2006.


Attorney(s) appearing for the Case

Stephen M. Ryan, Manatt, Phelps & Phillips LLP, Washington, DC, argued the case and was on the briefs of petitioners Nevada Power Company and Sierra Pacific Power Company. Roger A. Berliner, Manatt, Phelps & Phillips LLP, Washington, DC, and C. Stanley Hunterton, Hunterton & Associates, Las Vegas, Nevada, were also on the briefs as attorneys for the same parties.

Randolph Lee Elliot, Miller, Balis & O'Neil PC, Washington, DC, argued the case and was on the briefs of petitioner Southern California Water Company. Christopher M. Lyons was also on the briefs as attorney for the same party. Eric L. Christensen, Assistant General Counsel, argued the case and was on the briefs of petitioner Public Utility District No. 1 of Snohomish County, Washington. Howard M. Goodfriend, Edwards, Sieh, Smith & Goodfriend PS, Seattle, Washington, and Michael J. Gianunzio, General Counsel, were also on the briefs as attorneys for the same party. Timothy Hay, Chief Deputy Attorney General and Consumer Advocate, John E. McCaffrey, Stinson, Morrison, & Hecker LLP, Washington, DC, and Eric Witkowski, Senior Deputy Attorney General, were on the briefs of petitioner Office of the Nevada Attorney General, Bureau of Consumer Protection.

Lona T. Perry, Attorney, Federal Energy Regulatory Commission, Washington, DC, argued the case and was on the briefs of the respondent. Cynthia A. Marlette, General Counsel, and Dennis Lane, Solicitor, were also on the briefs as attorneys for the respondent.

Richard L. Hinckley, General Counsel, was on the brief of intervenor Public Utilities Commission of Nevada.

William J. Kayatta, Jr., Jared S. des Rosiers, Louise K. Thomas, Deborah L. Shaw, Christopher T. Roach, Pierce Atwood, Portland, Maine, and Erik N. Saltmarsh, Erin Koch-Goodman, California Electricity Oversight Board, Sacramento, California, were on the joint brief of the intervenors, as attorneys for California Electricity Oversight Board. Arocles Aguilar, Sean Gallagher, Jonathan Bromson, Public Utilities Commission of the State of California, San Francisco, California, were on the joint brief of the intervenors, as attorneys for the Public Utilities Commission of the State of California.

Richard P. Bress, Michael J. Gergen, Jared W. Johnson, David G. Tewksbury, Stephanie S. Lim, Latham & Watkins LLP, Washington, DC, were on the brief of intervenor Mirant Americas Energy Marketing LP.

Paul J. Pantano, Jr. and Catherine M. Krupka, McDermott, Will & Emery LLP, Washington, DC, were on the brief of intervenor Morgan Stanley Capital Group Inc.

Kenneth W. Irvin, Morrison & Foerster LLP, Washington, DC, argued the case and was on the joint brief of the intervenors in support of the respondent, as attorney for El Paso Merchant Energy, LP. Edward J. Twomey and Bruce Barnard were also on the joint brief as attorneys for the same party.

Merrill L. Kramer, Robert Shapiro, and Robin D. Ball, Chadbourne & Park LLP, Washington, DC, were on the joint brief of the intervenors in support of the respondent, as attorneys for Allegheny Energy Supply Company, LLC.

Clark Evans Downs, Martin V. Kirkwood, Kenneth B. Driver, Jonathan F. Christian, Jones Day, Washington, DC, were on the joint brief of the intervenors in support of the respondent, as attorneys for American Electric Power Service Corp.

Mark R. Haskell, Morgan, Lewis & Bockius LLP, Washington, DC, was on the joint brief of the intervenors in support of the respondent, as attorney for BP Energy Company.

Sarah G. Novosel, Calpine Corporation, Washington, DC, was on the joint brief of the intervenors in support of the respondent, as attorney for Calpine Energy Services, LP.

Charles A. Moore, Leboeuf, Lamb, Greene & MacRae, LLP, Houston, Texas, was on the joint brief of the intervenors in support of the respondent, as attorney for Enron Power Marketing, Inc.

Randoplph Q. McManus and Melissa E. Maxwell, Baker Botts LLP, Washington, DC, were on the joint brief of the intervenors in support of the respondent, as attorney for Reliant Energy Services, Inc.

Before: James R. Browning, Harry Pregerson, and Marsha S. Berzon, Circuit Judges.


Argued and Submitted December 8, 2004 — Pasadena, California.

Opinion by Judge Berzon.

OPINION

BERZON, Circuit Judge:

The energy crisis in 2000-2001 resulted in extreme power shortages and price volatility in California and other western states. This consolidated appeal raises several interrelated issues concerning a series of wholesale energy contracts for future energy supplies — known as "forward" contracts — entered...

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