FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT IDAHO CONSERVATION No. 22-70122 LEAGUE; GREAT OLD BROADS FOR WILDERNESS; IDAHO RIVERS UNITED, OPINION Petitioners, v. BONNEVILLE POWER ADMINISTRATION, Respondent, ______________________________ NORTHWEST REQUIREMENTS UTILITIES; ALLIANCE OF WESTERN ENERGY CONSUMERS; PUBLIC POWER COUNCIL; PUGET SOUND ENERGY INC, Intervenors. On Petition for Review of an Order of the Bonneville Power Administration Argued and Submitted June 8, 2023 Seattle, Washington 2 IDAHO CONSERVATION LEAGUE V. BPA Filed October 16, 2023 Before: Michael Daly Hawkins, Carlos T. Bea, and Daniel A. Bress, Circuit Judges. Opinion by Judge Bress; Dissent by Judge Bea SUMMARY * Bonneville Power Administration / Article III Standing The panel denied a petition for review brought by environmental groups alleging that the Bonneville Power Administration (“BPA”) failed to comply with its statutory duties in the Northwest Power Act (“NWPA”) relating to fish and wildlife when BPA issued a decision setting power rates for the 2022-2023 fiscal period (“BP-22”). BPA is a federal agency tasked with selling the power generated at various hydroelectric facilities in the Pacific Northwest. The Pacific Northwest Electric Power and Conservation Planning Council (“the Council”) is a policymaking body responsible for developing a document called the “Program,” which lays out measures to protect, mitigate, and enhance the fish and wildlife that are affected by dam and reservoir projects within the Columbia River Basin. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. IDAHO CONSERVATION LEAGUE V. BPA 3 Petitioners alleged that in its BP-22 ratemaking, BPA failed to abide by NWPA § 4(h)(11)(A), which requires BPA provide equitable treatment for fish and wildlife, and take into account the Council’s Program. The panel held that petitioners had Article III standing. First, petitioners have alleged injury in fact where they are interested in the fish populations in the Columbia River Basin, and ongoing harm to these fish populations inflicts an injury on petitioners’ members. Second, any harm to the fish populations is traceable to BPA’s BP-22 ratemaking. Third, petitioners have adequately alleged redressability where it is a reasonable inference from the historical record that petitioners’ injuries would be at least partially redressed by a favorable decision on the merits. Turning to the merits, the panel held that the text and structure of the NWPA as a whole convincingly provides that NWEPA § 4(h)(11)(A) does not apply to ratemaking where that provision does not mention ratemaking, and other features of the statutory scheme buttress this conclusion. Dissenting, Judge Bea would hold that petitioners have not demonstrated that they have Article III standing because the alleged injury is not fairly traceable to BPA’s ratemaking decisions, and therefore this court lacks subject matter jurisdiction over the petition for review. 4 IDAHO CONSERVATION LEAGUE V. BPA COUNSEL Andrew R. Missel (argued), Advocates for the West, Portland, Oregon; Laurence J. Lucas, Advocates for the West, Boise, Idaho; for Petitioners. J. Courtney Olive (argued), Special Assistant United States Attorney, …
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