Portland General Electric Company v. Peter Johnson, Administrator of the Bonneville Power Administration, Intalco Aluminum Corporation, Intervenors

Petitioner Portland General Electric Company (PGE) challenges reduced-rate sales of electric power by the Bonneville Power Administration (BPA) to BPA’s direct service industrial customers that took place in 1983. 1 Petitioner alleges that BPA failed to follow ratemaking procedures mandated by the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. §§ 839 -839h (1982).

We find that petitioner had standing to bring this action, that the action is timely, and that the petitioner is not barred from bringing this action by failure to raise its objections before the agency. On the merits, we find that under the circumstances of this case BPA was not required to follow ratemaking procedures.

I.

STATEMENT OF THE CASE

A. Background

Respondent BPA is a federal government agency that markets power from federal *1477 hydroelectric projects and other federally-owned sources of electric power in the Pacific Northwest. BPA’s operations and statutory mandate are discussed in detail in Central Lincoln Peoples’ Util. Dist. v. Johnson, 686 F.2d 708 (9th Cir.1982), rev’d sub nom. Aluminum Co. of America v. Central Lincoln Peoples’ Util. Dist., — U.S. —, 104 S.Ct. 2472 , 81…

dissenting:

Congress has carefully circumscribed the statutory authority of the Bonneville Power Administration (“BPA”) to sell hydroelectric power in the Pacific Northwest by requiring BPA to follow detailed procedures in establishing rates. 16 U.S.C. § 839e(i). In this case it is undisputed that BPA sold surplus hydroelectric power to aluminum manufacturers, referred to as direct service industrial customers (“DSI’s”), at rates not established in conformity with the statutory procedures.

Portland General Electric Company (“PGE”) challenges the sales to the DSI’s because the statutory ratemaking procedures were not followed. The majority excuses BPA’s failure to conform to the statutory ratemaking procedures because of what the majority considers to be the “unusual circumstances” of the case.

Thus, the majority carves out an “unusual circumstances” exception to the absolute statutory command that “in establishing rates ... the Administrator shall use the following procedures ...” 16 U.S.C. 839e(i). 1 I submit that the majority’s statutory exception is created out of whole judicial cloth. It finds no support either in the statutory language or legislative history. Indeed, Judge…

754 F.2d 1475 PORTLAND GENERAL ELECTRIC COMPANY, Petitioner, v. Peter JOHNSON, Administrator of the Bonneville Power Administration, Respondent, Intalco Aluminum Corporation, et al., Intervenors. No. 83-7546. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 3, 1984. Submission Withdrawn July 11, 1984. Resubmitted Oct. 1, 1984. Decided March 4, 1985. Alvin Alexanderson, Alvin L. Alexanderson, Portland, Or., for petitioner. John Cameron, Asst. Gen. Counsel, Bonneville Power Admin., Portland, Or., for respondent. Harry Poth, Robert T. Hall, III, Reid & Priest, New York City, Charles H. Turner, U.S. Atty., Jack G. Collins, Chief, Civil Div., Portland, Or., for intervenors. Petition for Review of Sales of Electric Power by the Bonneville Power Administration. Before KILKENNY, SNEED, and NORRIS, Circuit Judges. SNEED, Circuit Judge: 1 Petitioner Portland General Electric Company (PGE) challenges reduced-rate sales of electric power by the Bonneville Power Administration (BPA) to BPA's direct service industrial customers that took place in 1983. 1 Petitioner alleges that BPA failed to follow ratemaking procedures mandated by the Pacific Northwest Electric…