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PACIFIC NORTHWEST GENERATING v. DEPT. OF ENERGY

Nos. 05-75638, 05-75639, 06-73756, 06-74223, 06-74237, 06-74797, 06-75361.

550 F.3d 846 (2008)

PACIFIC NORTHWEST GENERATING COOPERATIVE; Blachy-Lane County Cooperative Electric Association; Central Electric Cooperative Inc.; Clearwater Power Co.; Consumers Power, Inc., Coos-Curry Electric Cooperative, Inc.; Douglas Electric Cooperative; Fall River Rural Electric Cooperative, Inc.; Lane Electric Cooperative; Lost River Electric Cooperative, Inc.; Northern Lights, Inc.; Okanogan County Electric Cooperative, Inc.; Raft River Rural Electric Cooperative, Inc.; Salmon River Electric Cooperative, Inc.; Umatilla Electric Cooperative Association; and West Oregon Electric Cooperative, Inc., Petitioners, v. DEPT. OF ENERGY; Bonneville Power Administration, Respondents. Alcoa, Inc., Petitioner, Public Power Council, Intervenor, v. Bonneville Power Administration, Respondent. Alcoa, Inc., Petitioner, Columbia Falls Aluminum Company; Industrial Customers of Northwest Utilities; Public Power Council, Intervenors, v. Bonneville Power Administration; Dep't Of Energy, Respondents. Pacific Northwest Generating Cooperative; Blachy-Lane County Cooperative Electric Association; Central Electric Cooperative Inc.; Clearwater Power Company; Consumers Power Inc.; Coos-Curry Electric Coop., Inc.; Douglas Electric Cooperative; Fall River Rural Electric Cooperative, Inc.; Lane Electric Cooperative Inc.; Lost River Electric Cooperative, Inc.; Northern Lights Inc.; Okanogan County Electric Cooperative Inc.; Raft River Rural Electric Cooperative, Inc.; Salmon River Electric Cooperative Inc.; Umatilla Electric; West Oregon Electric Cooperative, Inc., Petitioners, v. Bonneville Power Administration, Respondent. Pacific Northwest Generating Cooperative; Blachy-Lane County Cooperative Electric Association; Central Electric Association Inc.; Clearwater Power Company; Consumers Power Inc.; Coos-Curry Electric Coop., Inc.; Douglas Electric Cooperative; Fall River Rural Electric Cooperative; Lane Electric Cooperative Inc.; Lost River Electric Cooperative, Inc.; Northern Lights Inc.; Okanogan County Electric Cooperative Inc.; Raft River Rural Electric Cooperative Inc.; Salmon River Electric Cooperative Inc.; Umatilla Electric; West Oregon Electric Cooperative, Inc., Petitioners, v. Bonneville Power Administration, Respondent. Alcoa, Inc., Petitioner, v. Bonneville Power Administration, Respondent. Industrial Customers of Northwest Utilities, Petitioners, v. Bonneville Power Administration, Respondents.

United States Court of Appeals, Ninth Circuit.

Filed December 17, 2008.

Attorney(s) appearing for the Case

Michael C. Dotten, Matthew Harrington, Heller Ehrman LLP, Seattle, WA, for petitioner-intervenor Alcoa, Inc.

Melinda J. Davison, Irion Sanger, Davison Van Cleve, P.C., Portland, OR, for petitioner Industrial Customers of Northwest Utilities.

R. Erick Johnson, Lake Oswego, OR, for petitioners Pacific Northwest Generating Cooperative, et al.

Karin J. Immergut, United States Attorney; Randy Roach, General Counsel; Stephen J. Odell, Assistant U.S. Attorney; David J. Adler, Special Assistant U.S. Attorney; Timothy Johnson, Assistant General Counsel; Kurt Runzler, Jon D. Wright, J. Courtney Olive; Portland, OR, for respondent Bonneville Power Administration.

Leonard J. Feldman, Heller Ehrman LLP, Seattle, WA, for intervenor Port Townsend Paper Company.

Mark R. Thompson, Portland, OR, for intervenor Public Power Council.

Before: RAYMOND C. FISHER, MARSHA S. BERZON, Circuit Judges, and BARRY TED MOSKOWITZ, District Judge.

BERZON, Circuit Judge:

A. Introduction

At their origins during the New Deal, the Bonneville Project's hydroelectric operations in the Pacific Northwest, administered by the Bonneville Power Administration ("BPA"), were promoted as spreading the benefits of affordable federal power widely, to "the farmer and the factory, and all of you and me."2 At the same time, the Project gave a vital boost to the aluminum industry of the Pacific...

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