Public Utility District No. 1 v. Bonneville Power Administration

MEMORANDUM *

Petitioners ask us to review BPA’s decision to implement a provision of the 2001 Load Reduction Agreement BPA entered into with PacifiCorp and Puget Sound Energy (“PSE”). The controversy concerns a “Reduction of Risk Discount” provision, which Petitioners term a “litigation penalty.” The details of the provision are discussed in our opinion, Public Util. Dist. No. 1 of Snohomish County v. BPA, 506 F.3d 1145 (9th Cir.2007), filed concurrently with this memorandum, and we do not repeat them here.

Under the Northwest Power Act, we have “original subject matter jurisdiction 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. § 839f(e)(5)). We lack jurisdiction to adjudicate chal *823 lenges to decisions taken by BPA that are not “final actions” or the implementation of a “final action.” Public Util. Dist. No. 1 of Snohomish County, 506 F.3d at 1151 . In its October 21, 2003 Record of Decision (“2003 ROD”), BPA attempted to settle all pending legal challenges to its 2000 Residential Exchange Program (“REP”) Settlement Agreement. In exchange for the public utility litigants…