INDUSTRIAL CUST'S OF NORTHWEST v. BONNEVILLE POWER

Nos. 11-71368, 11-71396, 11-71401, 11-71419.

767 F.3d 912 (2014)

INDUSTRIAL CUSTOMERS OF NORTHWEST UTILITIES, Petitioner, v. BONNEVILLE POWER ADMINISTRATION, Respondent, Port Townsend Paper Corporation; Avista Corporation; Alcoa Inc.; Idaho Power Company; Puget Sound Energy, Inc; Pacificorp; Portland General Electric Company, Respondents-Intervenors. Public Power Council, Petitioner, v. U.S. Department of Energy; Bonneville Power Administration, Respondents, Avista Corporation; Alcoa Inc.; Idaho Power Company; Portland General Electric Company, Respondents-Intervenors. Pacific Northwest Generating Cooperative; Blachly-Lane County Cooperative Electric Association; Central Electric Cooperative Inc.; Clearwater Power Company; Consumers Power, Inc.; Coos-Curry Electric Cooperative, Inc.; Douglas Electric Cooperative; Fall River Rural Electric Cooperative, Inc.; Lane Electric Cooperative; Lincoln Electric Cooperative, Inc.; Northern Lights, Inc.; Okanogan County Electric Cooperative, Inc.; Raft River Rural Electric Cooperative, Inc.; Umatilla Electric Cooperative Association; West Oregon Electric Cooperative, Inc., Petitioners, v. U.S. Department of Energy; Bonneville Power Administration, Respondents, Alcoa Inc.; Avista Corporation; Idaho Power Company; Puget Sound Energy, Inc; Pacificorp; Portland General Electric Company, Respondents-Intervenors. Canby Utility Board, Petitioner, v. U.S. Department of Energy; Bonneville Power Administration, Respondents, Alcoa Inc.; Idaho Power Company; Avista Corporation; Puget Sound Energy, Inc; Pacificorp; Portland General Electric Company, Respondents-Intervenors.

United States Court of Appeals, Ninth Circuit.

Filed September 18, 2014.


Attorney(s) appearing for the Case

Melinda J. Davison (argued) and Irion Sanger , Davison Van Cleve, P.C., Portland, OR, for Petitioner Industrial Customers of Northwest Utilities.

Zabyn Towner , Pacific Northern Generating Cooperative, Portland, OR, for Petitioners Pacific Northwest Generating Cooperative and Members.

David F. Doughman , Beery Elsner & Hammond LLP, Portland, OR, for Petitioner Canby Utility Board.

Irene A. Scruggs (argued), Public Power Council, Portland, OR, for Petitioner Power Council.

Randy A. Roach , General Counsel, Timothy A. Johnson , Assistant General Counsel, Jon D. Wright (argued) and Hilary Browning-Craig , Attorneys, Bonneville Power Administration, Portland, OR; and S. Amanda Marshall , United States Attorney, District of Oregon, Stephen J. Odell , Assistant United States Attorney, David J. Adler and J. Courtney Olive , Special Assistant United States Attorneys, Portland, OR, for Respondent Bonneville Power Administration.

Michael C. Dotten (argued) and Dustin T. Till , Marten Law, Portland, OR, for Intervenor Alcoa Inc.

Jay T. Waldron and Sara Kobak , Schwabe Williamson & Wyatt P.C., Portland, OR; and Ryan L. Flynn , PacifiCorp, Portland, OR, for Intervenor PacifiCorp.

Donald G. Kari and Jason Kuzma , Perkins Coie LLP, Bellevue, WA; and Dan L. Bagatell , Perkins Coie LLP, Phoenix, AR, for Intervenor Puget Sound Energy, Inc.

Michael G. Andrea , Avista Corporation, Spokane, WA, for Intervenor Avista Corporation.

R. Blair Strong , Paine Hamblen LLP, Spokane, WA, for Intervenor Idaho Power Company.

Scott G. Seidman , Tonkon Torp LLP, Portland, OR, for Intervenor Portland General Electric Company.

Leonard J. Feldman , Marcus Wood , and Maren R. Norton , Stoel Rives LLP, Seattle, WA, for Intervenor Port Townsend Paper Corporation.

Opinion by Judge Berzon; Partial Concurrence and Partial Dissent by Judge Reinhardt.


OPINION

BERZON, Circuit Judge:

The Bonneville Power Administration ("BPA") is an agency within the Department of Energy that markets the energy output of federal power projects in the Pacific Northwest. In two previous decisions, we invalidated three sets of contractual arrangements in which BPA agreed to subsidize certain longtime industrial customers rather than sell them power directly. See Pac. Nw. Gen. Coop. v. Bonneville Power Admin. ("PNGC...

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