Public Utility District No. 1 of Snohomish County v. Bonneville Power Administration

Petitioners, publicly owned utilities (“PUDs”) operating in the Pacific Northwest challenge contract amendments entered into in May 2004 (collectively “2004 Amendments”) between the Bonneville Power Administration (“BPA”) and several investor-owned utilities (“IOUs”) arguing that they violate provisions of the Northwest Power Act (“NWPA”). The amendments at issue modify various provisions of several “REP Settlement Agreements” BPA entered into with IOUs in October 2000 and additionally implement a $100M “Reduction of Risk” or “litigation penalty” implemented in agreements between BPA and two IOUs, PacifiCorp and Puget Sound Energy, in May and June of 2001. In a previously issued opinion, we held that BPA was bound by the power exchange requirements of the Northwest Power Act and exercised its settlement authority contrary to those requirements when it entered into the REP Settlement Agreements. Portland Gen. Elec. Co. v. BPA, 501 F.3d 1009 (9th Cir.2007). Because BPA has not had an opportunity to determine the continued validity of the 2004 Amendments, we remand to the agency to determine in the first instance how to treat the amendments in light of our prior decision and this…