Idaho Conservation League, et al. v. Bonneville Power AdministrationIdaho Conservation League, et al. v. Bonneville Power Administration
Before: Milan D. Smith, Jr., Eric D. Miller, and Patrick J. Bumatay, Circuit Judges.
Opinion by Judge Miller
SUMMARY*
Northwest Power Act
The panel denied petitions for review brought by environmental groups led by the Idaho Conservation League (ICL) challenging the decision of the Bonneville Power Administration (BPA) to spend only about 10 percent of its excess financial reserves on measures to protect fish and wildlife.
BPA is a federal agency responsible for marketing power generated at federal hydroelectric facilities in the Columbia River Basin. To maintain stable rates for the power it sells, BPA holds financial reserves. When those reserves grow too large, BPA is required to spend the excess money. ICL argued that BPA’s decision to spend only about 10 percent of its excess reserves on measures to protect fish and wildlife transgressed its obligations under section 4(h)(11)(A) of the Pacific Northwest Electric Power Planning and Conservation Act, also known as the
The panel held that the petitions for review were timely because they were filed within 90 days of BPA’s final allocation of its excess reserves. The cases were not moot because, although BPA has distributed the funds from 2022 and perhaps from 2023 as well, BPA’s decisions about how to allocate its excess reserves raised issues that were capable of repetition while evading review.
On the merits, the panel held that BPA’s allocation of its excess financial reserves was not subject to the requirements of section 4(h)(11)(A) of the NWPA. A separate provision of the NWPA, section 4(h)(10), specifically addresses BPA’s use of the excess financial reserve fund for fish and wildlife, and does not require that fish and wildlife be put on an equal footing with BPA’s power interests, nor does it require that BPA prioritize the Council’s program “to the fullest extent practicable.” Instead, section 4(h)(10)(A) requires BPA to consider the Council’s plan and ensure that spending under that section be “consistent with the plan.” Because section 4(h)(11)(A)’s
COUNSEL
Andrew R. Missel (argued) and Laurence J. Lucas, Advocates For The West, Boise, Idaho, for Petitioners.
J. Courtney Olive (argued), Special Assistant United States Attorney; Richard A. Greene, Neal M. Gschwend, and B. Tucker Miles, Attorneys; Timothy A. Johnson and Annе E. Senters, Assistant General Counsels; Marcus H. Chong Tim, General Counsel; Bonneville Power Administration, Portland, Oregon; Sean E. Martin, Assistant United States Attorney; Natalie K. Wright, United States Attorney; Office of the United States Attorney, United States Department of Justice, Portland, Oregon; for Respondent.
Sommer Moser, Davison Van Cleve PC, Portland, Oregon; Matthew Schroettnig, Northwest Requirements Utilities, Portland, Oregon; Thomas Creekpaum, Public Power Council, Portland, Oregon; for Intervenors.
John Shurts, Northwest Power and Conservation Council, Portland, Oregon, for Amicus Curiae Northwest Pоwer and Conservation Council.
OPINION
MILLER, Circuit Judge:
The Bonneville Power Administration (BPA) is a federal agency responsible for marketing power generated at various federal hydroelectric facilities in the Columbia River Basin. To maintain stable rates for the power it sells, BPA holds financial reserves. When those reserves grow too large, BPA spends the excess money. In these petitions for review, environmental groups led by the Idaho Conservation League (ICL) challenge BPA’s decision to spend only about 10 percent of its excess reserves on measures to protect fish and wildlife. ICL argues that BPA’s decision transgressed BPA’s obligations under section 4(h)(11)(A) of the Pacific Northwest Electric Power Planning and Conservation Act, also known as the
I
Congress created BPA in 1937 to improve power generation and transmission in the Pacific Northwest. See generally
Although the hydroelectric facilities in the Columbia River Basin are important sources of electricity, they have also contributed to the decline of what were once the largest salmon runs in the world. See Northwest Res. Info. Ctr., Inc. v. Northwest Power Plan. Council, 35 F.3d 1371, 1375–76 (9th Cir. 1994). In 1980, Congress enacted the NWPA to balance BPA’s power-marketing objectives with environmental considerations, including the conservation of fish and wildlife. See
Unlike most federal agencies, BPA does not receive annual appropriations from Congress. Rather, it uses power marketing revenues, which are deposited in the “BPA fund,” to finance its expenses. See
Varying market conditions sometimes make BPA’s revenue and cost projections inaccurate. To ensure rate stability, BPA attempts to maintain financial reserves in the BPA fund as a cushion against unexpectedly low revenues or high costs. But when revenues are higher or costs are lower than BPA anticipated, excess financial reserves accumulate. When financial reserves cross a certain threshold, BPA’s financial-reserves policy requires it to spend them. A Reserve Distribution Clause (RDC), which BPA adopts as part of the rate case, governs how those excess reserves may be spent. During the period at issue here, the RDC permitted BPA to use its excess reserves for “debt reduction, incremental capital investment, rate reduction through a Power Dividend Distribution . . . , distribution to customers, or any other Power-specific purposes determined by the Administrator.” Before spending excess reserves, BPA publishes the amount it intends to spend, the allocation of that amount, and the data underlying those decisions. It then must hold at least one public meeting and provide an opportunity for comment on its proposal before making a final decision.
In both fiscal year 2022 and fiscal year 2023, the RDC required BPA to spend excess reserves. For 2022, BPA proposed allocating 70 percent of the excess reserves to its customers through a power dividend distribution, 20 percent to debt reduction, and 10 percent to addressing the maintenance needs of existing assets designed to mitigate the impact of hydroelectric power generation on fish and wildlife. The proposed allocation in 2023 was similar: 58.0 percent for a power dividend distribution, 31.5 percent for debt reduction, and 10.5 percent for fish and wildlife mitigation assets. Across both years, BPA proposed allocating a total of $80 million of its excess reserves to fish and wildlife mitigation assets, from a pool of $785.4 million.
In both years, BPA received comments on the proposed allocation from interested parties, including States, tribes, and environmental organizations. Many commenters, including ICL, objected that the proposed allocation to fish and wildlife mitigation efforts was too limited. As relevant here, ICL argued that BPA had failed to comply with a pair of statutory obligations in the NWPA. Those duties—codified in section 4(h)(11)(A) of the NWPA—require BPA and other agencies that are “responsible for managing, operating, or regulating Federal or non-Federal hydroelectric facilities located on the Columbia River or its tributaries” to exercise their responsibilities “in a manner that provides equitable treatment for . . . fish
BPA defended its proposed allocation on the ground that section 4(h)(11)(A) of the NWPA does not apply to funding decisions for fish and wildlife but only to the physical operation and management of hydroelectric facilities. BPA ultimately finalized its preliminary allocation.
ICL filed two petitions for review: one challenging the allocation of excess reserves fоr 2022 and another challenging the allocation of excess reserves for 2023. See
II
We begin by considering whether the petitions were timely filed. The NWPA provides for judicial review of a final action taken by BPA if a petition for review is “filed within ninety days of the time such action or decision is deemed final.”
ICL challenges BPA’s decisions to allocate only about 10 percent of its excess financial reserves in 2022 and 2023 to fish and wildlife mitigation efforts. BPA responds that ICL’s claims relate “to how the RDC provision functions—i.e., the criteria BPA would use when implementing that provision of the rate schedule.” But as BPA concedes, the RDC merely sets out permissible uses for excess financial reserves; it does not require BPA to allocate any particular amоunt to any particular use. Thus, the alleged underfunding of fish and wildlife efforts of which ICL complains did not materialize when the RDC was adopted. It happened later, when the excess financial reserves were allocated in the decisions that ICL now challenges.
BPA’s alternative conception of ICL’s challenges is similarly flawed. Contrary to BPA’s characterization, ICL is not challenging what it believes to be the chronic underfunding of fish and wildlife projects that occurred many years ago. It is challenging BPA’s decision not to spend morе money now. In ICL’s view, spending more money now is necessary to ameliorate the effects of chronic underfunding, but that does not transform the petitions into challenges to past underfunding.
Because both petitions for review were filed within 90 days of BPA’s final allocation of its excess reserves, they satisfy the statutory time limit. But they are arguably too late in a different sense: As ICL concedes, BPA has now distributed the funds from 2022, and perhaps (though it is unclear from the parties’ briefing) from 2023 as well. That raises the possibility that the cases are moot, and although BPA does not raise a mootness objection, we must consider the issue sua sponte because it affects our subject-matter jurisdiction. See Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir. 2004).
The cases are not moot because ICL’s challenges to BPA’s decisions about how to allocate its excess reserves raise issues that are capable of repetition while evading review. See Turner v. Rogers, 564 U.S. 431, 439–40 (2011); Alcoa, Inc. v. Bonneville Power Admin., 698 F.3d 774, 786 (9th Cir. 2012). That limited exception to mootness applies when “(1) the challenged action
That test is satisfied here. First, because BPA’s allocation of excess reserves covers only a single fiscal year, its decisions have too short a duration to be fully litigated before the reserves are distributed. The 2022 decision is illustrative: BPA issued its final decision on January 6, 2023, but by the time ICL filed its opening brief, the 2022 funds had already been fully distributed. See Alcoa, 698 F.3d at 787 (“[A]s a practical matter a transactiоn set for a term of 17 months . . . would be likely to expire before our review (let alone the Supreme Court’s) could be completed.“). Second, ICL can reasonably be expected to be subject to the same action again in the future. After ICL petitioned for review of the 2022 decision, but before any adjudication of the legality of that decision, BPA announced a 2023 allocation that was similar in relevant respects. The repetitive nature of BPA’s actions demonstrates that ICL has a reasonable expectation of facing BPA’s allegedly illegal conduct again. See id. We therefore conclude that the cases are not moot.
III
On the merits, the petitions turn on whether section 4(h)(11)(A) of the NWPA governs BPA’s decisions about how to allocate excess reserves. That provision states:
(A)The [BPA] Administrator and other Federal agencies responsible for managing, operating, or regulating Federal or non-Federal hydroelectric facilities located on the Columbia River or its tributaries shall—
(i) exercise such responsibilities consistent with the purposes of this chapter and other apрlicable laws, to adequately protect, mitigate, and enhance fish and wildlife, including related spawning grounds and habitat, affected by such projects or facilities in a manner that provides equitable treatment for such fish and wildlife with the other purposes for which such system and facilities are managed and operated;
(ii) exercise such responsibilities, taking into account at each relevant stage of decisionmaking processes to the fullest extent practicable, the program adopted by the Council under this subsection.
BPA contends that those requirements apply only to operational decisions “relating to physical water management“—in other words, turning valves and throwing switches. BPA emphasizes that section 4(h)(11)(A)(i) refers to thе “purposes for which such system and facilities are managed and operated,” and it observes that the system and facilities at issue are dams and reservoirs whose “purposes depend on or involve, in some way, the physical storage or movement of water.” ICL responds by pointing to the initial clause of section 4(h)(11)(A), which imposes duties on BPA “and other federal agencies responsible for managing, operating, or regulating” the facilities in the Columbia River Basin. It
In resolving that dispute, we do not read the words of section 4(h)(11)(A) in a vacuum. To the contrary, “[i]t is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989); see also Brown v. Gardner, 513 U.S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of statutory context.“). “We must thus interpret § 4(h)(11)(A) within the ‘overall structure and design’ of the statute that Congress enacted.” ICL I, 83 F.4th at 1192 (quoting Chicken Ranch Rancheria of Me-Wuk Indians v. California, 42 F.4th 1024, 1035 (9th Cir. 2022)).
The text and structure of the NWPA persuade us that section 4(h)(11)(A) does not apply to BPA’s decision about how to allocate excess reserves. As we have explained, BPA’s excess financial reserves accumulate in the BPA fund. A separate provision of the NWPA, section 4(h)(10), specifically addresses BPA’s use of that fund for fish and wildlife. See
Likewise, section 4(h)(10)(A) directs BPA to use the BPA fund to “protect, mitigate, and enhance fish and wildlife . . . in a manner consistent with . . . the program adopted by the Council.”
If we were to adopt ICL’s position and construe section 4(h)(11)(A) to apply to BPA’s decisions about how to spend excess reserves, that provision would conflict with section 4(h)(10)(A). But we must read a statute “to harmonize and give meaningful effect to all of [its] provisions.” New Process Steel, L.P. v. NLRB, 560 U.S. 674, 680 (2010). Thus, we understand the statute to provide that section 4(h)(10)(A) governs the allocation of excess reserves, but section 4(h)(11)(A) does not.
ICL attempts to reconcile sections 4(h)(10)(A) and 4(h)(11)(A) by arguing that the former grants BPA the authority to
In addition, ICL’s characterization of section 4(h)(10)(A) as merely an authority-granting provision ignores the rest of the text. Elsewhere in section 4(h)(10), Congress imposed significant procedural requirements on BPA’s use of the authority that it granted. For example, when BPA funds fish and wildlife projects from its annual fish and wildlife budget, which implements the Council’s plan, the NWPA requires that it submit its project proposals to the Council’s Independent Scientific Review Panel.
ICL argues that BPA’s interpretation is undermined by BPA’s concession that certain power-marketing activities are subject to section 4(h)(11)(A). Power marketing is the purchase and sale of power to and from the grid, and BPA sometimes purchases power to ease the power-generation requirements at facilities across the Basin to make it easier for fish to migrate. Those power purchases are made using the BPA fund, so ICL contends that they are no different from BPA’s allocation of excess reserves. See
Our interpretation is reinforced by our decision in ICL I, in which we held that section 4(h)(11)(A) does not apply to BPA’s rate-setting decisions. See 83 F.4th at 1192. In that case, ICL argued that BPA had set its rates too low, preventing it from generating the revenue necessary to comply with section 4(h)(11)(A)’s mandate. See id. But, guided by the structure of the NWPA, we held that section 4(h)(11)(A) does not constrain ratemaking. See id. at 1192. We observed that section 7 of the
ICL attempts to distinguish ICL I on the theory that the “exceedingly detailed” nature of the ratemaking process in section 7 created a strong inference that Congress meant to exclude ratemaking decisions from section 4(h)(11)(A)’s coverage. See ICL I, 83 F.4th at 1192. In contrast, ICL contends, BPA’s decision making about how to allocate its excess financial reserves is “highly informal,” making a comparable inference unreasonable. But no matter how informal BPA’s process for allocаting its excess reserves may be, it is authorized by a complex statutory provision that, like section 7, imposes obligations related to fish and wildlife without mentioning the fish and wildlife obligations contained in section 4(h)(11)(A). Section 7 requires BPA to “equitably allocate to power rates . . . all costs and benefits . . . including, but not limited to, . . . fish and wildlife measures.”
ICL argues that our conclusion is in tension with two of our prior decisions: Northwest Env’t Def. Ctr. v. Bonneville Power Admin. (NEDC), 117 F.3d 1520 (9th Cir. 1997), and Confederated Tribes, 342 F.3d 924. In NEDC, the petitioners argued that BPA violated section 4(h)(11)(A) by acquiring new water storage capacity but failing to dedicate enough of that capacity to fish and wildlife interests. 117 F.3d at 1532. In evaluating that argument, we explained that “BPA’s responsibilities to protect fish and wildlife do not end with even complete adoption of the Council’s Program.” Id. But we did not say, as ICL suggests, that the “equitable treatment” mandate encompasses BPA’s obligation to fund fish and wildlife mitigation efforts. To the contrary, we described the “equitable treatment” mandate as “independent” of BPA’s responsibilities vis-à-vis the Council’s Program. Id. And our concern in NEDC was principally with what section 4(h)(11)(A) requires when it applies, not, as in this case, with the antecedent question of which actions it applies to. We had no occasion to consider that question in NEDC because the challenged decision—how much water-storage capacity to dedicate to fish and how much to dedicate to electricity production—bore directly on BPA’s operation and management of its hydroelectric facilities, and BPA did not argue otherwise.
In Confederated Tribes, petitioners challenged a BPA decision document as violative of the “equitable treatment” mandate because it “lack[ed] a special document or section fully detailing its efforts to treat
Finally, ICL argues that construing section 4(h)(11)(A) as not governing BPA’s allocation of its excess reserves will “undermine[] the overall efficacy of the Council’s Fish and Wildlife Program, frustrating the statutory scheme.” Of course, although promoting the Council’s program was undoubtedly one of Congress’s purposes, we do not presume “that any result consistent with . . . the statute’s overarching goal must be the law.” Henson v. Santander Consumer USA Inc., 582 U.S. 79, 89 (2017). In any event, we find ICL’s policy concern unfounded. As we have explained, section 4(h)(10)(A)—which all agree governs BPA’s use of the BPA fund for fish and wildlife protection—requires BPA to consider the Council’s plan and ensure that spending under that section be “consistent with the plan.”
In sum, we hold that BPA’s allocation of its excess financial reserves is not subject to the requirements of section 4(h)(11)(A) of the NWPA.
PETITIONS DENIED.