Association of Public Agency Customers v. Bonneville Power Administration

Opinion by Judge PAEZ; Dissent by Judge ALARCÓN.

OPINION

In this opinion, we consider whether a settlement agreement between the Bonneville Power Administration (“BPA”) and a large number of its customers is lawful. We invalidated a previous settlement between BPA and a class of customers because it did not comply with the Pacific Northwest Electric Power Planning and Conservation Act (“NWPA”). See Portland Gen. Elec. Co. v. BPA, 501 F.3d 1009, 1036-37 (9th Cir.2007) (“PGE”); Golden Nw. Aluminum, Inc. v. BPA, 501 F.3d 1037, 1048 (9th Cir.2007) (“Golden Nw.”). On remand, BPA initiated a complex rate-making process, under which it calculated both (1) overcharges resulting from the. unlawful settlement, and (2) new rates, intended to comply with PGE and Golden Northwest. Its customers, in turn, filed numerous petitions for review in this court, challenging various aspects of BPA’s rate-making.

In the face of potentially unending litigation, BPA and a large number of its customers entered into the Residential Exchange Program Settlement Agreement (“REP-12 Settlement Agreement” or “Settlement”). Record of Decision (“ROD”) 14. 2 The Settlement sets terms for refunding customers who…

dissenting:

I respectfully dissent.

In this matter, we must initially determine whether APAC, 1 a group whose members are not direct customers of BPA, has standing to challenge the REP-12 Settlement Agreement. BPA and the inter *969 vening parties, 2 some of whom supply electricity to APAC’s members, contend that APAC’s members lack standing to bring this challenge because they are not direct customers of BPA. APAC counters that it has standing on account of its members’ cost-based pass-through contracts with the COUs. 3 I would deny the petition because it is my view that we lack the power to review its merits because APAC has failed to demonstrate that it has Article III standing. Accordingly, I am persuaded I lack the power to comment on the majority’s opinion regarding the merits of APAC’s petition.

I

Because standing was not at issue in the agency proceeding below, we must consider the question in the first instance. Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009) (“Questions of standing ... may be raised and considered for the first time on appeal, including sua sponte.” (citations omitted)). We must first consider whether at least one of APAC’s members…