Public Utility District No. 1 v. Department of Energy

MEMORANDUM *

Petitioners seek to challenge the Reduction of Risk Discount (or “litigation penalty”) provisions of the 2001 Load Reduction Agreements (“LRA”) BPA signed with PacifiCorp and Puget Sound Energy (“PSE”) in May and June 2001, respectively. BPA did not conduct a public proceeding for the development of these contracts and did not publish the accompanying Record of Decision in the Federal Register. In October 2003, in response to a FOIA request from The Oregonian, BPA produced the contracts with PacifiCorp and PSE and posted the documents on its website. Petitioners filed this suit within 90 days of BPA posting the contracts on its website. A more comprehensive explanation of the 2001 LRAs and BPA in general can be found in our opinion, Pub. Util. Dist. No. 1 of Snohomish County v. BPA 506 F.3d 1145 (9th Cir.2007), filed concurrently with this memorandum.

As an initial matter, we must determine whether we have jurisdiction to hear this appeal. Under the Northwest Power Act, we have “original subject matter jurisdic *821 tion over BPA’s ‘final actions and decisions’ taken pursuant to the Act.” Portland Gen. Elec. v. BPA 501 F.3d 1009 (9th Cir.2007) (quoting 16 U.S.C. §…