Ferc

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF REDDING, CALIFORNIA, 

Petitioner,

NORTHERN CALIFORNIA POWER

AGENCY,

Petitioner-Intervenor, v. FEDERAL ENERGY REGULATORY No. 09-72775 COMMISSION,  FERC No. Respondent, EL00-95-202

PEOPLE OF THE STATE OF

CALIFORNIA; PACIFIC GAS AND

ELECTRIC COMPANY; PUBLIC

UTILITIES COMMISSION OF THE

STATE OF CALIFORNIA; SOUTHERN

CALIFORNIA EDISON COMPANY,

Respondents-Intervenors. 

9649 9650 CITY OF REDDING v. FERC

ARIZONA ELECTRIC POWER 

COOPERATIVE, INC.,

Petitioner,

NORTHERN CALIFORNIA POWER

AGENCY,

Petitioner-Intervenor, No. 09-72789 v.  FERC No.

FEDERAL ENERGY REGULATORY EL00-95-202

COMMISSION,

Respondent,

CALIFORNIA INDEPENDENT SYSTEM

OPERATOR CORPORATION,

Respondent-Intervenor. 

BONNEVILLE POWER 

ADMINISTRATION; WESTERN AREA

POWER ADMINISTRATION, No. 09-72791 Petitioners, v.  FERC No.

EL00-95-202

FEDERAL ENERGY REGULATORY …

Opinion by Judge CLIFTON; Dissent by Judge McKEOWN.

*831 OPINION

This story begins over a decade ago during the California energy crisis of 2000 and 2001. This court 1 and this panel 2 have become very familiar with those events. After California deregulated and restructured its electricity market in the mid 1990s, prices skyrocketed. The Federal Energy Regulatory Commission (“FERC”) attempted to ameliorate this problem by ordering refunds from both jurisdictional (public) and non-jurisdietional (non-public) entities for prices paid above what FERC later determined to be the just and reasonable rate. We held, in Bonneville Power Administration v. FERC, 422 F.3d 908 (9th Cir.2005), that FERC lacked authority to order refunds from those entities not under its jurisdiction, namely the non-public utilities. In a set of orders subsequent to Bonneville— the orders that we now review — FERC stated that it had “revised” or “reset” 3 the market rates for the period for which it had ordered refunds, and that its authority to do so stemmed from § 206 of the Federal Power Act (“FPA”), 16 U.S.C. § 824e. It is from these Orders that Petitioners, 4 a group of municipal and federal governmental…

dissenting:

The Federal Power Act’s (“FPA”) delineation of FERC’s authority under § 206(b) is unambiguous: FERC lacks the “broad power under FPA § 206 to retroactively reset rates for all market participants.” Maj. Op. 837-38. From this rejection of FERC’s position, the end of the line seems clear — FERC’s orders exceeded its authority by resetting market rates retroactively, and the petition should be granted. Apparently not so. In a surprise twist ending, notwithstanding the plain language of the orders at issue and FERC’s litiga *843 tion position, the majority determines that FERC merely declared fair market clearing prices without actually attempting to “retroactively alter” these prices. Maj. Op. at 841-42. This semantic resolution is at odds with the record and basic principles of administrative law, and undermines the majority’s standing analysis, endangering the utilities’ claim to standing.

To understand why the majority’s conclusion takes a wrong turn, it is helpful to step back and track FERC’s bidding in this multi-year saga. FERC has stated throughout these proceedings that it has reset rates retroactively, and claims authority to do so under § 206(b) of the FPA.…