Bonneville Power Administration v. Federal Energy Regulatory Commission

The California energy crisis of 2000 and 2001 is a subject that is well-known to this court and to the public. 1 Following moves in the mid-1990s to deregulate and restructure the California market, prices soared. In an effort to remedy in part what it termed a “dysfunctional” and “seriously flawed” market, the Federal Energy Regulatory Commission (“FERC” or “Commission”) ordered both public and non-public utilities to make refunds.

In this appeal, various non-public utilities — which somewhat confusingly are public, governmental entities, but are not classified by federal statute as public utilities — challenge the refund orders. The utilities take the position that FERC’s refund authority extends only to “public utilities” and that the public entities, as governmental bodies, are not “public utilities” and are expressly exempted from FERC’s refund jurisdiction. FERC, which is the federal agency charged with regulation of all facilities for transmission and sale of electric energy for resale in interstate commerce, acknowledges that while it does “not have direct regulatory rate authority over power sales by non-public utilities,” it *911 has the “authority to order them to…