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PACIFIC NORTHWEST GEN. CO-OP. v. DEPT. OF ENERGY

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

580 F.3d 792 (2009)

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.

Amended August 5, 2009.

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.

ORDER AND AMENDED OPINION

BERZON, Circuit Judge:

ORDER

The opinion filed on December 17, 2008, and published at 550 F.3d 846, is hereby amended as follows:

1. Slip Op. 16570, line 31: Replace <Each of these justification> with <Each of these justifications>

2. Slip Op. 16571, line 4: Remove the sentences <This explanation is undercut, first of all, by the fact that the subsidized...

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