693 F.3d 828
9th Cir.2012Background
- California energy crisis of 2000–2001 led to FERC refunds for rates deemed unjust and reasonable; FERC issued refund orders targeting public utilities (within its jurisdiction) and, later, non-public entities; Bonneville held FERC lacked authority to order refunds from non-jurisdictional entities; post-Bonneville, FERC issued orders revising or resetting market rates; Petitioners are non-public governmental entities challenging those orders; petitions allege FERC retroactively reset prices for all market participants; majority denies petitions while dissent argues ultra vires action and broader retroactivity defenses; the case centers on whether FERC had authority to retroactively reset rates for non-public entities and the effect of the July 2001 Order and subsequent orders against Petitioners.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Petitioners have standing to seek review. | Petitioners aggrieved by retroactive rate action. | FERC actions did not injure Petitioners beyond remand context. | Petitioners have standing. |
| Whether Petitioners collateral attack prior FERC orders. | July 2001 Order retroactively reset rates; timely appeal required. | No clear notice; no timely challenge possible. | Not barred by collateral attack; timely standing to review. |
| Whether FERC §206(b) grants retroactive rate setting for non-public entities. | §206(b) authorizes retroactive rate setting for all market participants. | Authority limited to refunds for jurisdictional public utilities; cannot fix past rates for non-jurisdictional sellers. | §206(b) does not authorize retroactive ratesetting for non-jurisdictional entities. |
| Whether the post-Bonneville Orders exceeded FERC’s authority. | Orders retroactively reset market rates for all participants. | Orders established just and reasonable prices to calculate refunds for public entities. | Orders did not exceed authority; they set just prices to determine refunds. |
Key Cases Cited
- Bonneville Power Admin. v. FERC, 422 F.3d 908 (9th Cir. 2005) (limited FERC refunds to public utilities under §206(b))
- Port of Seattle v. FERC, 499 F.3d 1016 (9th Cir. 2007) (standing aggrievement requirement under §313 and injury in fact)
- Exxon Mobil Corp. v. FERC, 571 F.3d 1208 (D.C. Cir. 2009) (Chevron step one; §206(a) prospective limits; refunds via §206(b))
- City of Anaheim v. FERC, 558 F.3d 521 (D.C. Cir. 2009) (prospective rate setting; retroactive rate changes prohibited under §206(a))
- Pac. Gas & Elec. Co. v. FERC, 464 F.3d 861 (9th Cir. 2006) (collateral attack framework for reviewing FERC orders)