Bpa

Opinion by Judge IKUTA; Concurrence by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge BEA.

OPINION

These consolidated petitions for review challenge a contract between the Bonneville Power Administration (BPA) and one of its long-time customers, Alcoa Inc. BPA’s preference customers, as well as other entities and organizations in the Pacific Northwest, filed this petition for review, requesting that we hold that the contract is unlawful because it is inconsistent with the agency’s statutory mandate to act in accordance with sound business principles. They claim that instead of entering into a contract to sell power to Alcoa at the statutorily required Industrial Firm power (IP) rate (a cost-based rate prescribed by 16 U.S.C. § 839e(c)(l) for sales of power to customers such as Alcoa), BPA should sell to other buyers at the market rate. BPA’s decision not to do so, petitioners allege, forgoes revenue that could otherwise be used to lower the rates charged to its preference customers. They further argue that BPA relied on flawed data in determining it would make a modest profit by selling surplus power to Alcoa. Alcoa also petitions for review, asking the court to…

concurring:

I concur fully in Judge Ikuta’s majority opinion. I write separately only to note briefly that I also concur in Judge Bea’s interpretation of Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186-87 (9th Cir.2003), that the only dicta by which we are bound “is well-reasoned dicta.” Concurring and dissenting op. at 804 n.4 (Bea, J.).

Miranda B. adopted the definition of dicta in Judge Kozinski’s separate, minority opinion in United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc) (separate opinion of Kozinski, J.), apparently under the belief that that opinion was the expression of the majority of the en bane court. At least the opinion in Miranda B. does not identify the citation as anything other than the opinion of the en banc majority. The citation in Miranda B. following the quotation of Judge Kozinski’s definition of dicta reads simply “United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (en banc).” But page 914 is part of Judge Kozinski’s separate, minority opinion, which starts on page 909, and is joined in by only three other judges of the 11-judge en banc court. See id. at 909 . Be that as it may, because it was adopted by the Miranda B. panel,…

concurring in part and dissenting in part:

I agree with the panel’s judgment denying the petitions as to the First Period of the contract between the Bonneville Power Authority (“BPA”) and the Aluminum Company of America (“Alcoa”), as extended by the parties. I dissent, however, from the panel’s judgment dismissing the petitions seeking to invalidate the contract’s Second Period because I find Petitioners have standing to press their claims, and that their claims are valid, as far as they are based on BPA’s statutory duty to charge Alcoa the IP rate. See Maj. Op. Part IV. We should grant the petition as to the Second Period of BPA’s contract with Alcoa.

The effect of the BPA-Alcoa contract is that BPA will lose up to $66,000,000 annually for five years ($5,500,000 a month) as the difference between BPA’s costs of production and transmission and the price paid by Alcoa. These losses must be made up by rate hikes to BPA’s other customers, such as Petitioners. Such losses cannot be justified by the agency’s interpretations of what constitutes “sound business practices,” nor by the so-called Equivalent Benefits standard, because BPA is constrained by statute to sell power to Alcoa…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALCOA, INC., 

Petitioner,

PACIFIC NORTHWEST GENERATING

COOPERATIVE AND MEMBERS; PUBLIC

POWER COUNCIL; AVISTA

CORPORATION; IDAHO POWER

COMPANY; PACIFICORP; PORTLAND

GENERAL ELECTRIC COMPANY; No. 10-70211

PUBLIC UTILITY COMMISSION OF

OREGON; PUGET SOUND ENERGY,

 BPA No. 10PB-12175

INC.,

Intervenors, v.

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents. 

CANBY UTILITY BOARD, 

Petitioner,

ALCOA, INC.,

 Intervenor, No. 10-70707 v.

BONNEVILLE POWER

ADMINISTRATION,

Respondent. 

12381 12382 ALCOA, INC. v. BPA

PUBLIC POWER COUNCIL, 

Petitioner,

ALCOA, INC.,

Intervenor, v.  No. 10-70743

BONNEVILLE POWER

ADMINISTRATION; U.S.

DEPARTMENT OF ENERGY,

Respondents. 

INDUSTRIAL CUSTOMERS OF 

NORTHWEST UTILITIES,

Petitioner,

ALCOA, INC.,

Intervenor,  No. 10-70782 v.

BONNEVILLE POWER

ADMINISTRATION,

Respondent.  ALCOA, INC. v. BPA 12383

NORTHWEST REQUIREMENTS 

UTILITIES,

Petitioner,

ALCOA,…