Blachly-Lane Electric Cooperative Ass'n v. U.S. Dept. of Energy

MEMORANDUM *

Petitioners (certain public utilities) and the Tribal Intervenors challenge the *977 Bonneville Power Administration’s (“BPA”) decision to sell power to Direct Service Industry (“DSI”) customers.

To the extent that the September 18, 2001 Petition for Review seeks to challenge rate determinations, Petitioners acknowledge this issue is outside the scope of the Petition for Review and not properly before this court. After submission of this appeal on July 10, 2008, the Federal Energy Regulatory Commission (“FERC”) granted final confirmation and approval of the proposed rates on July 21, 2003. Counsel for BPA made the following to statements at oral argument: “All the ratemaking issues regarding allocation of FBS [Federal Base System] costs, etc., are properly reviewed by FERC to the extent that they regard our cost recovery,” and “Any issue regarding FBS is solely an issue of price or cost.” We agree with these statements. Consequently, the following claims (along with any others that fall within the “ratemaking” rubric described by BPA counsel), while unripe for purposes of this action, may be raised by Petitioners in a separate action now that FERC review is…