Summary of PPC Litigation (updated 9/25/08)
Issue
NOAA’s Biological Opinion re Effects of FCRPS Operations on
ESA-listed Salmon / Steelhead
National Wildlife Federation, et al. v. NMFS, et al.
Parties
Jurisdiction
Summary of Issue(s)
Recent Case Events
(bold type shows events that
are new since last update)
Anticipated Actions
BPA’s Residential Exchange Program Settlement Agreements
(REPSAs) with Northwest Investor-Owned Utilities
PPC’s status: Intervenor Defendant
Petitioners: Portland General Electric Company, PacifiCorp, PPC,
Atofina Chemicals, Inc., et al. v.
Respondent: BPA
US District Court- Oregon (01-640RE)
Ninth Circuit (Case Nos. 01-70003, etc.)
Whether NMFS’s (now NOAA-Fisheries’) revised Biological
Opinion (BiOp) violates the ESA.
Whether BPA’s residential exchange settlement agreements with
the IOUs violate BPA’s statutes.
09/02/08 Federal defendants file Administrative Record.
09/03/08 Plaintiffs file Motion for Leave to File Amended Complaint;
memorandum in support.
09/05/08 Plaintiffs file Joint Motion to File Excess Pages.
09/10/08 Plaintiffs file revised schedule proposal for review of the 2008
FCRPS BiOp; Irrigators file answer to complaint; Ninth Circuit issues
mandate, finalizing prior denial of government’s appeal regarding
judge’s order that BiOp is unlawful; Federal defendants file response to
motion for leave to file amended complaint.
09/12/08 Plaintiffs file Reply to Motion for Leave to File Amended
Complaint; Judge issues order adopting joint revised schedule, request
for excess pages, and plaintiffs’ motion for leave to file amended
complaint; Plaintiffs file fifth amended complaint for declaratory and
injunctive relief.
09/15/08 Federal defendants file Fifth Spill Status Report.
09/17/08 Idaho files answer to Amended Complaint; judge files order
setting oral argument on motions for summary judgment for 1/16/09 at
9:30.
09/19/08 Plaintiffs file Motion for Relief From Rule 56(a)(1),
memorandum in support, and motion for summary judgment,
memorandum in support; Plaintiffs file declarations in support of
motion for summary judgment from Patty Glick, Frederick E. Olney,
Steven Orzack, Ph.D.,
Jack Williams; Plaintiffs file Concise Statement of Material Fact in
Support of NWF's Motion for Summary Judgment;
09/19/08 Nez Perce Tribes files Memorandum in Support of Plaintiffs'
Motion for Summary Judgment; declarations by Emmit E. Taylor, Jr.;
Oregon files motion for summary judgment, memorandum in support,
Concise Statement of Material Fact, and declaration by Edward
Bowles.
09/23/08 Judge issues order granting Plaintiffs' Motion for Relief From
Time Limits of Rule 56(a)(1); Federal defendants file Administrative
Records.
3/8/07 WPAG, NRU, and PPC jointly file notice of additional
authority, citing NEDC v. BPA case opinion issued recently.
5/3/07 Court issues order, finding IOU Residential Exchange
Program Settlement Agreements are Illegal.
6/8-11/07 BPA, IOUs, and State Commissions file motion to
extend deadline by which they must file petitions for rehearing of
the Court’s opinion.
6/18/07 Court grants motions for extension of time in which to file
for rehearing.
7/18/07 PacifiCorp, Avista, PGE, Puget Sound, Oregon PUC and
Washington PUC file motions for rehearing of Court’s opinion;
BPA does not file.
10/5/07 Court denies petitions for rehearing.
11/28/07 Mandate issued.
12/18/07 IOUs file motion with the Supreme Court seeking to
extend the deadline by which they must file for Supreme Court
review of the case.
12/27/07 Supreme Court justice grants extension of time through
2/3/08.
2/1/08 PGE, Puget Sound, and Avista file Petition for Writ of
Certiorari with Supreme Court, seeking review of this case.
2/26/08 Oregon PUC files notice of intent to file brief with
Supreme Court in support of IOUs’ petition.
5/7/08 Joint Response to IOUs’ Petition for Cert. filed by WPAG,
PPC, NRU, Snohomish, ICNU; Solicitor General files brief
opposing Supreme Court review of the case.
6/9/08 Supreme Court denies IOUs’ petition for certiorari.
New round of review by the Court of the latest BiOp will ensue.
Case is final. BPA is currently conducting remand proceedings in
the form of the WP-07 Supplemental Rate Case.
Summary of PPC Litigation (updated 9/25/08)
Issue
Parties
Jurisdiction
WP-02 – BPA’s Rate Case Decisions
BPA’s DSI Benefits Decisions for ‘07-11
Petitioners: PPC, Golden Northwest Aluminum, et al., Benton
PUD No. 1, et al., Canby Utility Bd., Avista (and PGE, Idaho Power
Puget, PacifiCorp, NorthWestern Energy), Tacoma, Columbia River
PUD, Benton REA and Grays Harbor v.
Respondent: BPA
Intervenor: Alcoa, Inc.
Petitioners: PNGC, Alcoa v.
Respondent: BPA
Intervenors: PPC, ICNU
Ninth Circuit (Case Nos. 03-73426, etc.)
Ninth Circuit (Case Nos. 05-75639, etc.; Case No. 06-73756)
Whether BPA’s decisions in its WP-02 rate case with regard to its
treatment of the costs of the IOUs’ residential exchange settlement
agreements violate the Northwest Power Act.
Whether BPA’s June 30, 2005 Record of Decision regarding DSI
benefits during the 2007-2011 period violates the Northwest Power
Act. (Case Nos. 05-75639, etc.)
Whether BPA’s June 1 Supplemental Record of Decision regarding
DSI benefits for the 2007-11 period violates the Northwest Power
Act or Administrative Procedure Act. (Case No. 06-73756)
Summary of Issue(s)
Whether BPA’s June 27 contracts with the DSIs and participating
public utilities violate the Northwest Power Act. (Case No. 0673756)
Recent Case Events
(bold type shows
events that are new
since last update)
Anticipated Actions
5/3/07 Court issues opinion finding that BPA’s treatment of the IOU
Residential Exchange Program Settlement Agreements in its WP-07
rate proceeding was unlawful; Also finds that BPA’s service to DSIs
in last rate period was legal, and that BPA’s fish and wildlife funding
decisions in WP-02 rate proceeding were flawed.
6/8-11/07 BPA, IOUs, and State Commissions file motion to extend
deadline by which they must file petitions for rehearing of the
Court’s opinion.
6/18/07 Court grants motions for extension of time in which to file
for rehearing.
7/18/07 Avista, Pacificorp, and PGE file motion for rehearing of
Court’s opinion; BPA does not file.
10/5/07 Court denies petitions for rehearing.
2/1/08 PGE, Puget Sound, and Avista file Petition for Writ of
Certiorari with Supreme Court, seeking review of this case.
2/26/08 Oregon PUC files notice of intent to file brief with Supreme
Court in support of IOUs’ petition.
5/7/08 Joint Response to IOUs’ Petition for Cert. filed by WPAG,
PPC, NRU, Snohomish, ICNU; Solicitor General files brief
opposing Supreme Court review of the case.
6/9/08 Supreme Court denies IOUs’ petition for certiorari.
10/3/07 PNGC files response to Alcoa’s motion to extend oral
argument time.
10/5/07 Court files order, granting extension of time, but requesting
parties limit number of counsel appearing at oral argument.
10/10/07 Parties file joint proposal regarding oral argument time.
10/15/07 Court grants joint proposal regarding oral argument time.
11/5/07 BPA files motion for leave to file corrected pages to its
answering brief.
11/7/07 Case argued to Judges Fisher, Berzon, and Moskowitz.
11/21/07 Alcoa files “post-argument brief” and motion seeking
permission to file such brief. Alcoa also files motion to take judicial
notice, or in the alternative, supplement the record.
12/3/07 PPC, ICNU, PNGC file joint response in opposition to
Alcoa’s motion to file post-argument brief. BPA and PNGC files
opposition to motion to take judicial notice or supplement record.
12/19/07 Court denies Alcoa’s motion to file a post-argument brief.
Case is final. BPA is currently conducting remand proceedings in
the form of the WP-07 Supplemental Rate Case.
Court will determine whether to have supplemental briefing in the
case, and will issue decision at some future time.
Summary of PPC Litigation (updated 9/25/08)
Issue
Parties
Jurisdiction
Summary of Issue(s)
Recent Case Events
(bold type shows
events that are new
since last update)
Anticipated Actions
BPA’s Regional Dialogue Decisions
Petitioners: PPC, Alcoa
Respondent: BPA
Intervenors:
Ninth Circuit (Case Nos. 07-74094)
Whether BPA’s decisions in its Regional Dialogue Record of Decision and
Final Policy comport with the Northwest Power Act and other law
applicable to BPA. (Precautionary petition for review to ensure ability
to challenge in the future).
11/1/07 Court grants PPC’s motion to stay proceedings. Case is
stayed until 7/3/08. New schedule is: admin. record due 8/4/08;
opening brief due 9/15/08; answering brief due 10/15/08; optional
reply brief due 14 days after service of answering brief.
11/9/07 ICNU files motion to intervene.
11/13/07 PNGC files motion to intervene, to expand stay, and to
consolidate Alcoa’s petition.
11/14/07 Avista, PGE, and Puget Sound Energy file motion to
intervene.
11/15/07 Idaho Power, PacifiCorp, and NRU file motion to
intervene.
12/17/07 Court grants motions to intervene of PNGC, ICNU,
Avista, Puget Sound Energy, Portland General Electric, PacifiCorp,
and Idaho Power; Opening briefs are due 9/15/08.
1/7/08 Oregon PUC files motion for permission to intervene out of
time and motion to intervene.
1/29/08 Court grants OPUC’s motion to intervene.
6/16/08 PPC, Alcoa, and BPA file joint motion to extend the stay of
proceedings for an additional three months.
6/19/08 Court grants motion, sets following schedule: the record is
due Dec. 15, 2008, the opening briefs are due Feb. 13, 2009,
intervenors' brief(s) are due Apr. 14, 2009; respondent's brief due
Apr. 28, 2009; optional reply briefs due 14 days after service of
respondent's brief.
Case is stayed pending further developments in Regional Dialogue.