Port of Seattle v. Federal Energy Regulatory Commission

application ap- Truth’s charter violates the

plicable SEATTLE, clause of the Constitution. WASHINGTON, We PORT OF argument need not reach the merits of this Petitioner, reject premise. because we can Truth Energy; IDACORP Williams Power treatment, unequal was not accorded be- Company Inc.; City Tacoma, Wash cause the denial of third charter was ington; Southern California Edison justified under the First Amendment and Company; Constellation Power upon the Act based general member- Inc.; Source El Paso Merchant Ener ship represented restrictions. This denial gy L.P.; Morgan Stanley Capital application neutral of the Kent School Group, Inc.; Energy District’s policies non-discrimination Tractebel and Mar Inc.; keting therefore did unequal Energy Co., not constitute treat- BP Interve nors, ment. The District argued has also speech rights ASB has free that would be FEDERAL ENERGY REGULATORY

violated if it compelled recognize COMMISSION, Respondent, Truth an organization. ASB The ASB party appeal is not a to this and there is no Agency; M-S-R Public Power Duke En indication that the District has authoriza ergy Trading Marketing, LLC; tion from the ASB to assert such First Energy; City Sound of Los An Amendment claims. We conclude that the geles Department of Water and Pow District prudential standing lacks to assert er; Sempra Energy Trading Corp.; the ASB’s speech rights. free See Kowal Energy LLC; Plus Northern Califor Tesmer, 125, 129, ski v. 543 U.S. 125 S.Ct. Agency, Intervenors, nia Power (2004) (“[A] 160 L.Ed.2d 519 party generally must legal assert his own rights Seattle, Applicant-Intervenor. Port of interests, cannot rest his claim to City Seattle, Petitioner, legal relief on rights or interests of (internal parties.” third quotations omit Energy L.P.; People IDACORP ted)). California; Seattle; State of Port of Energy Duke America, LLC, North VI. Energy Duke Trading Marketing, It prudent only to address those is- LLC, (Collectively, Energy”); “Duke sues necessary for our decision on the Tacoma, Intervenors, third charter application. We only hold that the District did not violate the Act or County, County, Benton Franklin Grant Truth’s First rights by Amendment re- County; Energy; Transcanada Public quiring Truth to general remove its mem- Company Colorado; Service Of Powe bership provision. Because the denial of Corp.; rex Independent California Truth’s third permissible charter was System Operator corporation; Alcoa basis, go we need no further to affirm Inc.; Columbia Falls Aluminum Com summary judgment. pany, LLC; Company Williams Power AFFIRMED. Inc.; Electricity Oversight

Board; Portland General Electric Company; Northern California Power Agency; El Paso Merchant L.P., Intervenors, LLC, America, Energy North Duke v. Marketing, Trading Energy and Duke Regulatory Energy Federal Energy”); (Collectively, LLC, “Duke Respondent, Commission, Tacoma, Washington; Califor City of System Operator Cor Independent nia Energy; The Avista Corporation; Avista Company of Public poration; Service Department Of Angeles City of Los Trading Energy Sempra Colorado; Energy; Power; Sempra and Water Angeles Depart City Los Corp.; of West Energy; Pinnacle Puget Sound Power; Pinnacle ment of Water Energy Commodi Cos.; Constellation (PNW); Corporation, Capital West Co.; Energy Inc.; Group, BP ties LLC; En Power, Transcanada Coral Inc.; Marketing M- Energy Tractebel Company Ltd.; Power ergy Williams Agency; Modesto Power Public S-R Power Inc.; California Northern City (Mid); of The Irrigation District (NCPA); Port of Seattle Agency, Redding; City Coral Clara; of Santa Power Washington; Public M-S-R LLC; PPL Energyplus, Power; PPL Irrigation Dis Modesto Agency; The Montana, Intervenors. Clara, City (“Mid”), of Santa The trict Tacoma, Washington, Clara”) City (“Santa of California

Petitioner, (“Red Redding, California of Electricity Over ding”); California America, LLC, Energy North Duke Inc.; Board; Columbia Alcoa sight Marketing, Trading Energy Duke Company, LLC Falls Aluminum Energy”); (Collectively, LLC, “Duke Stanley Capital (“CFAC”); Morgan General; Attorney Port of California People Inc.; PacificCorp; Group, Intervenors, Seattle, California, ex rel. Bill the State General, Appli Attorney Lockyer, v. cants-Intervenors. Regulatory Energy Federal Respondent, Commission, California; Bill People of the State General, Attorney Lockyer, L.P.; West Energy Pinnacle IDACORP Petitioners, Cali Corporation; Northern Capital v. Energy Agency; Avista Power fornia Corporation; Energy Regulatory M-S-R Inc.; Federal Avista Commission, Respondent, Agency; Service Public Public Power Colorado; City Los Company of Group, Stanley Capital Morgan Department Water Angeles Inc., Applicant-Intervenor. Trading Sempra Energy Power; Company of Corp.; Service Public California, People the State PPL Mexico; Energyplus; PPL New Petitioner, LLC, Power, Interve Montana; Coral Port of Tacoma, Washington; City of nors. Intervenors, Washington, Seattle, Petitioner, Energy, Puget Sound L.P.; Energy IDACORP Board; Transca Oversight Electricity Benton, Ltd.; Franklin Energy nada Regulatory Federal Washington County, Public and Grant Commission, Respondent, Utility Districts; The California Inde

pendent System Operator Corpora

tion; Columbia Falls Aluminum Com

pany, LLC; Alcoa, Inc.; Portland Company;

General Electric Bonne

ville Administration; Power Powerex

Corp.; County; Benton Franklin

County; County, Grant Washington,

Intervenors,

v. Energy

Federal Regulatory

Commission, Respondent, Energy Company;

BP En Constellation

ergy Inc.; Group, Commodities Angeles

Los Department of Water and

Power; Sempra Energy Trading

Corp.; Puget Energy, Inc.; Sound Av Energy,

ista Inc.; Power, Coral

L.L.C.; Northern California Power

Agency; The M-S-R Public Power

Agency; Irrigation Modesto District

(Mid); City of Clara, Santa Califor

nia; City of Redding, California; Pin Companies;

nacle West Public Service

Company Colorado; Energy PPL

plus, LLC; Montana, PPL LLC; Avis

ta Corporation, Intervenors. Public Commission, Utilities

Petitioner,

Federal Regulatory

Commission, Respondent. 03-74139, 03-74472,

Nos. 03-74769,

04-70110, 04-70185, 04-70703,

04-71189.

United States Appeals, Court of

Ninth Circuit.

Argued and Submitted Jan. 2007.

Filed Aug.

Gary D. (argued), Bachman Cheryl Feik Ryan, Howard E. Shapiro, and Meredith Berger Chambers, Feldman, Van Ness PC, Washington, D.C., for petitioner and intervenor Sound Energy, Inc. Philip Chabot, Jr., L. McCarthy, Swee- ney PC, & Harkaway, Washington, D.C., petitioner and intervenor Port of Se- attle.

Rex S. Heinke (argued), Akin Gump Strauss Feld, Hauer & LLP, Los Angeles, CA; and Philip Nowak, G. Jerry E. Roth- rock, and Elder, David A. Akin Gump Strauss Feld, Hauer & LLP, Washington, D.C., petitioner intervenor Seattle.

Michael J. Carr, Kurman and J. Michael Jr., Arent PLLC, Fox D.C., Washington, petitioner for and intervenor of Taco- ma. Lockyer,

Bill Frank, Richard M. and Greene, Thomas Office of the Attorney General of the State of California, Sacra- mento, CA; Kevin J. McKeon (argued), Lillian S. Harris (argued), and Katherine Lovette, E. Hawke, McKeon, Sniscak & LLP, Kennard PA; Harrisburg, and David M. Gustafson, Office the Attorney Gen- eral of the California, State of Oakland, CA, petitioner for and intervenor the Peo- ple of the State of California ex rel. Bill Lockyer, Attorney General.

Erik N. Saltmarsh and Victoria S. Kola- kowski, California Electricity Oversight Board, Sacramento, CA, for petitioner and intervenor California Electricity Oversight Board. Wu,

Randolph Aguilar, Arocles Mary F. McKenzie, Sean H. Gallagher, and Traci Bone, Public Utilities Commission of the California, State of Francisco, CA, San for petitioner and intervenor Public Utilities Commission of the State of California. Cynthia Marlette, A. Lane, Dennis and Robert H. Solomon (argued), Federal En- Duncan, D. Pem- James L. Wallace Commission, Washington, Regulatory ergy Neal, Scanlon, M. Sean broke, and Reg- J. Energy Peter Federal D.C., respondent for Pembroke, & Duncan, Weinberg, Genzer ulatory Commission. Mo- D.C., for PC, Washington, intervenors Burger, J. and Peter Randy Coach District, City of Santa Irrigation desto Administration, Port- Power Bonneville California, Redding, Califor- Clara, City of and Jeff Immergut land, OR; Karin J. and Agency. Power Public nia, the M-S-R and States Attor- United Handy, Office Portland, Oregon, District of Dowden, ney for McDiarmid, G. Lisa Robert C. Power Ad- Bonneville OR, intervenor McDiarmid, & Meiser, Spiegel Meg and ministration. Northern D.C., for intervenor Washington, OR, in- Portland, Agency. Power Early, B.

Michael Falls and Columbia Alcoa Inc. tervenors K. Suzanne D. McGrane John LLC. Company, Aluminum LLP, & Bockius McBride, Lewis Morgan, Cheryl Feik (argued), Bolden, Bachman Gary D.C.; Timothy D. Washington, and Meredith Shapiro, E. Howard Ryan, Phoe- Corporation, Capital Pinnacle West Feldman, Chambers, Ness Van Berger West Pinnacle AZ, nix, for intervenors D.C., Avis- for intervenor PC, Washington, Arizona Public Corporation Capital Inc. Energy, Avista Corporation ta Company. Service & Lewis Haskell, Morgan, R. Mark Saunders, General Portland Denise V. D.C., for inter- LLP, Washington, Bockius Portland, OR; and Company, Electric Company. venor BP Slate, Skadden, Arps, Foley, Cheryl M. Burt, A. and Melissa D.C., N. Carroll Ronald LLP, Washington, & Flom Meagher D.C.; LLP, Washington, Lardner Foley & Electric Portland General for intervenor D. Os- and Randall Decker Lisa M. and Company. Commodities Energy teen, Constellation and Kearney, Fox, Andrea M. W. Paul MD, Baltimore, for intervenor Inc., Group, & Guiliani Bracewell King, E. Deanna Group, Energy Commodities Constellation III, TX; Gunter Austin, J. Clifford LLP, Inc. Busby, Edison, Glenn and Erin M. Andrew Watkiss, & Guilia- Bracewell D. Jeffrey Houston, TX; LLP, & Guiliani Bracewell D.C., intervenor for LLP, ni, Washington, Scott (argued) and Frederick David C. and LLC. Coral Power Hansen, Huber, Kellogg, Angstreich, H. & Will Irvin, McDermott W. Kenneth PLLC, Washington, Todd, Figel, Evans & D.C., for inter- LLP, Washington, Emery Corp. Powerex D.C., for intervenor Marketing, LP. Paso venor El Longstreth, and Kaplan A. John Donald Acker, Snyder, A. Brett G. Lawrence & Rouvelas Meeds Ellis Gates Preston Lamb, LeBoeuf, Thayaparan, and Roshini D.C., for intervenors LLP, Washington, D.C., LLP, Washington, Macrae, & Greene Mon- LLC, PPL and EnergyPlus, PPL LP. IDACORP for intervenor tana, LLC. M. Richard Delgadillo, J. Rockard Dow- Jr., Kevin M. Stough, and T. John Kamine, Office Haber Brown, Marcia D.C., Hartson, Washington, & ney, Hogan Los Angeles, Attorney of Los Company Service Public for intervenor Shapiro CA; E. Howard Angeles, Mexico. New Feldman, Ness Godley, Van F. Patricia Parsons, and Blair, L. Mark S. Bonnie D.C., intervenor P.C., Washington, McNaul, Thompson Coburn E. Margaret of Water Department Angeles Los City of D.C., for intervenors LLP, Washington, and Power. public utility Benton, districts of approval. At time, this we de- Franklin, Counties, and Grant Washing- cline to reach all other issues raised ton. parties. grant We petitions for review in part and Margaret Moore, remand this A. Howard case to Shapiro, FERC to E. Franco, and Vincenzo address the Feldman, manipulation market evidence, Van Ness PC, Washington, D.C.; Alan Z. include the Yudkow- California-consumed energy sky, Stroock LLP, & Stroock & Lavan analysis, Los its and to further consider Angeles, CA; and Beitler, I. Richard Sem- refund decision light related, inter- pra Energy Trading Stamford, Corp., CT, vening opinions of this court. Sempra intervenor Energy Trading Corp. I

The California energy crisis serves as the backdrop of litigation. That crisis has well-documented, see, been e.g., Pub. Utils. Comm’n State FERC, Cal. v. (9th F.3d Cir.2006) 1036-44 Before: SIDNEY R. THOMAS, M. (“Pub. ”); Utils. Comm’n Bonneville Power McKEOWN, MARGARET FERC, A dmin. 422 F.3d 910-14 CLIFTON, RICHARD R. Judges. Circuit (9th Cir.2005) (“BPA ”); Cal. ex rel. Lock yer v. (9th 1008-11 Opinion by Judge THOMAS; Cir.2004) ”), (“Lockyer and full recitation Concurrence Judge McKEOWN. history is unnecessary here. THOMAS, Judge: Circuit mid-1990’s, the California legisla- This is another in a series of cases aris- ture deregulated the electricity market, ing out of the energy crisis that occurred ostensibly to reduce energy prices for con- in California and other western states sumers. Act of September 23, 1996, 1996 2000 and 2001. We are asked to review (codified Cal. Legis. Serv. 854 at Cal. Pub. the decision by the Federal Energy Regu- 330-398.5). §§ UtiLCode Shortly thereaf- latory (“FERC” Commission or “Commis- ter, for a variety of reasons related to the sion”) deny buyers to wholesale deregulation and other factors, of electricity purchased in energy the wholesale electricity prices skyrocketed. short-term supply market at unusually In May 2000, instance, average prices high prices in the Pacific Northwest. We in the California short-term supply mar- are also asked to review FERC’s decision ket, also known market,” as the “spot were to exclude any potential from refund those twice as high as average prices in May transactions involving energy purchased in 1999. Comm’n, Pub. Utils. 462 F.3d at the Pacific Northwest for consumption in 1040. In June the in a first series of California. We ju- conclude we have power blackouts occurred in Northern Cal- risdiction over FERC’s decision deny to ifornia, potentially as the result of market refunds, and that FERC abused its discre- manipulation. tion in denying potential relief for transac- tions The involving effects of energy that was ultimately crisis were felt in consumed in other areas California. We also the western energy conclude market that in well, determining as “dysfunctions whether as refunds were spot the mar- warranted, FERC should have kets operated by considered the [California Indepen- new evidence of intentional market manip- dent System Operator] and California ulation by submitted parties the with (PX) Power Exchange prices affected the

1023 deter- it must criminatory preferential,” or “inte- Northwest,” due to the Pacific order rate and and reasonable just amine markets.” Western nature grated 16 and in force.” to be “observed al., Inc., 103 that rate et Energy, Sound Puget (2004); Utils. 824e(a) Pub. (“June § (2003) U.S.C. 62,366-67 ¶ 61,348 at FERC may FERC Comm’n, at 1045. F.3d 462 Order”). Northwest Pacific those to pay refunds to sellers Washing- order also Idaho, Oregon, and as defined unrea- unjust or Nevada, at the energy Montana, bought who parts ton, well as 824e(b) (2004); § 16 U.S.C. rate. U.S.C. 16 sonable Wyoming. Utah, at 1045. Comm’n, F.3d Pub. Utils. 839a(14). § a fifteen-month to are limited Such spot Northwest Pacific in the Prices effective “refund following period energy cri- during the skyrocketed market establishes FERC date,” is a date extreme factors, as an such Other sis. days sixty than no earlier may be drought, due supply energy reduction or, complaint filing of after in the Pacific crisis contributed also by instituted proceeding §aof case heavily on relies Northwest, region a after accord, days sixty own of its FERC dams hydroelectric through flow water its intention notice publishes Ener- Puget Sound electricity. generate 16 U.S.C. proceeding. initiate ¶ 63,044 at al., Inc., et gy, not order may 824e(b) (2004). FERC Report”). ALJ (“September (2001) filing before period for the any refunds market, which spot the California Unlike period sixty-day or complaint ex- power centralized through a operated Id.; filing. following immediately price, clearing a central change using Comm’n, F.3d Pub. Utils. operated Pacific in- negotiated Diego Gas & FPA, contracts San bilateral through to the Pursuant sellers, buyers E”) complaint a (“SDG between dependently & Electric price. skyrocketing clearing a central regarding without with 62,367. BPA, ¶ 61,348 at Order, 103 FERC See prices California. energy into thereafter, entered Shortly contracts these ofMost at 912-13. F.3d Systems of Western Sound Puget the terms under October stan- a (“WSPP”) support- now Agreement, Pool Power (“Puget”)—one electricity sales. complaint a contract form decision—filed dard ing Report, caps for sales 24, 2001 ALJ price September requesting with FERC North- 63,044 into energy capacity re- markets. power wholesale west (“FPA”), Act Federal Power Under cap equal price prospective quested utility public charged all rates —de- in the established cap lowest nongovernmental aas fined, confusingly, al- complaint markets. at 917—must BPA, 422 entity, the California leged or rate reasonable, any such “just and same of the part were markets is just reasonable is charge that Inter- Western of the market integrated unlawful,” 16 U.S.C. be declared hereby conditions market connection, and that FPA, 824d(a). § 206 Under § conditions market influenced California on investigate, authority to has FERC complaint also The Northwest. the Pacific a request at the initiative its own effec- refund set FERC requested particular whether party, complaining nec- date, extent tive Utils. Pub. “just and reasonable.” rate is filing after sixty days essary, finds If FERC Comm’n, at 1045. 462 2000, earli- 25, or December complaint, dis- unreasonable, unduly “unjust, a rate 1024 possible est refund pursuant effective date tling past accounts related to sales 824e(b).

to 16 U.S.C. FERC’s notice of Pacific Northwest.” San Diego Gas & the Puget complaint published in the Co., al., Elec. ¶ et 95 61,425 FERC at Federal Register 8, 2000, November 62,583 (“June (2001) 22, Order”). 2001 stating that Complaint “[t]he seeks a re- 22, Also 2001, June Puget filed a date, fund effective to the extent re- motion dismiss and a notice that it was for, fund is called sixty days after the withdrawing complaint, its explaining that filing of the Complaint.” Puget Sound 19, the June 2001 Order instituting price Inc., Energy, al.; et Electric Rate and mitigation in the Pacific Northwest satis Corporate Regulation Filings, 65 Fed.Reg. fied complaint. 9, On July 2001, (Nov. 66,986 2000). 8, Port of Seattle and the City of Tacoma On 15, 2000, December shortly after filed an answer opposing Puget’s motion, finding that prices in the spot explaining that a dismissal would prejudice markets were unjust and unreasonable, other entities in the Pacific Northwest that Pub. Comm’n, Utils. 462 1041; F.3d at on Puget’s relied complaint. On the same San Diego Co., & al., Gas Elec. et day, the City of Seattle and the Attorney ¶ 61,121 FERC 61,349 at (2000), FERC General of Washington filed late motions dismissed complaint, San Diego to intervene as well as answers in Co., Gas & al., Elec. opposi ¶ et 61,294 93 FERC tion to Puget’s 62,019 (2000) (“December at notice of withdrawal. Al 2000 Or der”). though it Puget does not filed a timely normally grant request for late interventions, rehearing on January granted 2001. On FERC April the late mo 26, 2001, in response to tions SDG & E intervene the City of complaint, imposed FERC price caps on Seattle and the Attorney General of Wash sales in the California spot ington markets and because “over the course of the instituted a “Westr-Wide 206 Investiga SDG E& proceeding,[FERC] expand has tion” into rates spot markets outside of ed scope of its just focus from Califor California, believing that such rates might nia to include the entire Western intercon unjust and unreasonable. San Diego nect and also to implicate wholesale spot Co., Gas & al., Elec. ¶ et 61,115 market transactions of non-public utilities.” 61,365 (2001) at (“April 26, Order”). San Diego Gas Co., & al., Elec. et Then, on 19, 2001, acknowledging ¶ 61,120 61,504 (2001) (“July that “the California market integrated Order”). day, next July 26, with those of other [West],” states Port Seattle and the City of Tacoma FERC adopted “a market monitoring and also filed late motions to intervene in the mitigation plan for the [western] mar Puget proceeding. granted those kets.” San Diego Co., Gas & al., Elec. et motions as well. 62,567-68 (2001) July 25, (“June Order”). noted The “need for that there had been little time during uniform pricing throughout the Western California settlement region” made plan discussions to ad- necessary. Id. 62,568. dress issues raised by FERC also the Pacific ordered North- par west Id. ticipants parties. engage in result, settlement As a discus sions, with goal FERC directed “all settling past ac to the Id. at 62,570. counts. Sound complaint days later, Three proceeding to participate FERC clarified that the in separate pro [a settlement preliminary evidentiary pro- ceeding was not to limited ceeding] “California-re and to focus on settling past ac- lated matters” but could also focus on “set- counts related to spot market sales in the Pacific in the manipulation market on to parties Interested Northwest. Pacific tactics of Enron’s some because Northwest may participate proceeding E&SDG the electric- of export and import the The 61,520-21. on relied Id. at discretion.” at their Pacific the and California evi- from to and preliminary ity “separate the purpose refunds seeking parties The explained, FERC Northwest. proceeding,” dentiary on counter- a relied Enron development allege that “facilitate also to be would North- the Pacific in may there sellers energy whether part on record factual strate- for manipulative charges carry out unreasonable unjust and west to been Pacific the in sales bilateral market spot gies. De- beginning period the for Northwest evi- newly-released this to response 20, 2001.” June through 25, 2000 cember ma- market intentional Enron’s dence 61,520. at Id. mo- parties some nipulation, evidentiary proceeding in preliminary evidentiary The record reopen the to tions 2001, Septem- to 1, August 19, from place took December On complaint. Puget the law administrative The 17, 2001. ber the eviden- reopen 2002, agreed FERC proceeding the (“ALJ”) expedited judge Feb- until parties record, the giving tiary busi- four responses discovery limiting evi- “additional 2003, to submit ruary depositions, prohibiting days, ness for refunds potential concerning dence in hearing three-day conducting in transactions sales bilateral market spot frequently waived. was cross-examination Janu- period the for Northwest Pacific the Report, ALJ September through June 1, 2000 ary found ALJ 65,300. The 63,044 at FERC findings modified new and/or proposed ener- California in the prices although that al., Inc., et Energy, Sound Puget fact.” Pacific the prices affected markets gy (“De- (2002) 62,221 ¶ 61,304 at FERC thing only the not Northwest, was “this later Order”). FERC 19, 2002 cember 65,370. at Id. there. prices” the driving up submitting addi- for the deadline extended evidence no found also ALJ The 17, 2003. March evidence tional Pacific power of market exercise al., FERC Inc., et Energy, Sound found 65,369, and Northwest, at id. (2002). 61,444 ¶ 61,163 at “per- spot market Northwest Pacific evidence new receiving After during market” competitive aas formed ruled argument, oral holding 65,386. As id. period, relevant three-commis- A divided findings. ALJ’s prices result, determined ALJ ALJ, denying with agreed panel sioner unreasonable unjust not were pur- energy refunds 65,385. request Id. unwarranted. were mar- spot Northwest Pacific in the transactions chases determined also ALJ in- market spot ket. Northwest Pacific Energy, Puget Sound 62,367; ¶ 61,348 in Cali- consumed energy volving (“No- (2003) al., Inc., Pacific 105 FERCT et refunded could fornia not, Order”). did trans- such because proceeding vember Northwest account into Pug- take to or however, scope respond beyond were actions ma- market of Enron’s evidence new complaint. et approv- with submitted nipulation released 6, May On explic- an to make declined also al. ma- Enron’s relating documents website prices whether finding as it mar- energy nipulation unjust or seeking According to kets. even concluding that unreasonable, instead reflected also evidence new refunds, 1026 prices if were unreasonable, the balance tration, Puget&emdash;the public utility that filed factors tipped against ordering refunds. the initial complaint in this proceeding but 25, ¶ June Order, 2003 103 61,348 refunds&emdash;-and which now opposes many 62,367. equitable These factors includ- public utility intervenors. These ed, (1) alia, inter presence in the Pa- parties will be to, referred collectively, as cific Northwest market governmental the “Refund Opponents.” subject

entities not jurisdiction and thus not (2) liable refunds, II unfairness of awarding parties refunds to We review FERC orders to determine that imprudently relied on market whether they are “arbitrary, capricious, an for their energy needs, (3) the adverse abuse discretion, unsupported by sub consequences might have stantial evidence, or not in accordance with market, (4) the time and effort re- law.” Cal. Dep’t Water FERC, Res. v. quired to calculate refunds in the Pacific 906, (9th 341 F.3d Cir.2003). 910 We defer Northwest bilateral spot market. Id. at to FERC’s factual findings if those find 62,367-69. FERC also affirmed the rec- ings are supported by substantial evidence. ommendation of the ALJ to exclude from 16 (b); U.S.C. 825Í Bear Watch, Lake the refund proceeding transactions involv- FERC, Inc. v. 1071, 324 (9th F.3d 1076 ing energy that was ultimately consumed “ Cir.2003). Substantial evidence ‘means California. 10, November Order, 2003 such relevant ¶ evidence as a 61,183 105 FERC reasonable 61,964 43; n. mind might accept as adequate Sound Energy, Inc., support al, et 106 FERC ” ¶ 61,109 conclusion.’ 61,368 (2004) Bear Watch, Lake (“February 9, Order”). F.3d at 1076 (quoting SEC, Commissioner Massey Eichler dis- “ sented, 1066, (9th F.2d stating Cir.1985)). he would order re- ‘If the funds from the refund evidence date, effective is susceptible of De- more than one cember 2000, through rational interpretation, we must uphold ” June 25, 103 FERC findings.’ [FERC’s] Id. (quoting Eichler, 1069) (alteration 757 F.2d at in original). We review questions In this lawof appeal, governmental de novo. Am. entities Northwest&emdash;the from Rivers v. (9th City of Seattle, Cir.1999). Seattle, Port of FERC’s interpretation Tacoma, all of FPA purchased, reviewed under the analysis estab whole, more electricity lished in during the energy Chevron U.S.A. Inc. v. Natural crisis than they sold&emdash;petition Council, Res. review 467 U.S. Def. of FERC’s decision deny refunds. The S.Ct. (1984), L.Ed.2d 694 and its State California, the Public Utilities progeny, BP 422 F.3d at 914. A Commission of California, and the Califor- As a matter, threshold we must deter- nia Electricity (“the Oversight Board Cali- mine whether we jurisdiction to re- Parties”), fornia petition for review of view FERC’s decision deny refunds for FERC’s decision to exclude from the re- energy transactions in the Pacific North- fund proceeding involving transactions en- west. FERC contends that we juris- lack ergy that was ultimately consumed in Cali- diction to review its denial of refunds be- fornia, as well as FERC’s decision to deny cause this decision is committed to agency refunds. These will to, be referred discretion law. collectively, as the Proponents.” “Refund Supporting FERC’s decision to deny re- jurisdiction We lack to review funds are the Bonneville Power Adminis- “an agency’s decision not to prosecute or

1027 ques- aof importance the note it to for er criminal or civil through enforce, whether and take tariff, request concerning a tion 470 U.S. Chaney, v. Heckler process.” a hear- hold and parties, the 714 from L.Ed.2d evidence 1649, 84 831, S.Ct. 821, 105 Accordingly, matter....”). is be 701(a)(2). the This ing § (1985); 5 U.S.C. to a determination made to enforce not has FERC decision where agency “an cause towards steps aof balancing take or dispute a complicated adjudicate a involves often out- law, the are peculiarly of factors which a violation enforcing of number re- questions judicial as to subject such expertise,” is its it chooses within come re agency’s set of review use best standards about under view 831, 105 at Heckler, Act U.S. 470 Procedure sources. Administrative forth cau has Court Supreme Dep’t The 706; 1649. Cal. S.Ct. (“APA”). U.S.C. 5 ju to exception however, tioned, 910. Res., F.3d 341 Water 838, one, id. narrow is a review dicial has FERC here. case is the That Over Preserve to 1649; Citizens 105 S.Ct. re to commit a decision already made 410, 402, 401 U.S. Park, Volpe, v. Inc. ton re of whether an examination to sources (1971), over- 136 814, L.Ed.2d 28 S.Ct. 91 energy certain for warranted are funds v. grounds Califano mled a for Northwest the Pacific transactions S.Ct. 97 Sanders, 430 U.S. re In 2001. 2000 and time period situa to those (1977), limited 192 L.Ed.2d complaint, aof filing to the sponse meaningful stan nois there in which tions to evidence taken hearings and agency’s held an has judge to which against dard as Heckler, dispute between a 470 U.S. act, adjudicate to not decision situations, awarded. should refunds those to whether 105 S.Ct. do in taken has not steps should Although courts is that the concern pick to are prerogative refunds find agency’s to an upon require trude not its allocate regarding priorities, its decision choose appropriate, demanding accordingly, re is awarding resources propriety Thus, enforce. or prosecute Indeed, regu agency we an court. by this viewable unre- presumption limited Heckler over judicial review exercise larly to institute “agency to ability refunds, view Pub. refusals deny or grant to decision proceedings.” enforcement investigative 1027(reviewing Comm’n, F.3d 462 Utils. add (emphasis 1649 S.Ct. 105 refunds); Lockyer, grant decision to pro instituted has agency an ed). When deny re decision (reviewing F.3d to re exist meaningful standards ceedings, N.Y., v. Inc. Co. Edison funds); Consol. an “when has done: agency what view (re (D.C.Cir.2003) F.3d enforce, action act does agency refunds), we deny viewing decision review, judicial focus provides itself here. do so exer must agency inasmuch ac manner. in some power its cised Ill to determine be reviewed can at least tion whether decide must alsoWe statutory agency exceeded whether com- original finding erred (em S.Ct. Id. at powers.” North- Pacific launched plaint, Tele also MCI See original). phasis with- was proceeding, refund west FCC, 41-42 Corp. comms. If July 2001. law in matter aas drawn (“It thing (D.C.Cir.1990) is one with- opinion erred tariff in investigate to decline FCC evi- entire drawn, the entrusted that decision place; first ALJ, as before dentiary proceeding anoth- quite It is discretion. unreviewable well as FERC’s subsequent decision to cross-appellants who “might ag- become deny refunds, would be proeedurally grieved upon reversal on the ap- direct If, barred. on the hand, other peal.” we deter- Mumaw, Hilton v. 588, mine that Puget’s complaint (9th was Cir.1975). not with- case, In such a “the drawn, we must decide whether risk Puget [a cross-appellant] might become complaint failed to set a aggrieved refund upon effective reversal on the ap- direct date, which is a statutory peal is requirement sufficient” to confer standing, even seeking refunds. when “the words, final order from Puget which the di- and the Refund rect was Opponents appeal ask taken was us to affirm entirely favor- the outcome able to procedural cross-appellants.” below on grounds, Id.

rather than reach the merits. This we Puget undoubtedly prevailed before the decline to do. agency; indeed, it argues that reached the correct result in not granting

A refunds. Puget has standing, however, be- As a matter, threshold cause, we conclude while not technically bringing a that Puget has standing to assert cross-appeal, this it essentially finds itself in challenge, even though it position prevail of a cross-appellant who lost a ing party before the agency. collateral issue FPA below but ultimately pre- judicial limits vailed. review those With who Refund Proponents ap- “aggrieved been pealing by an order refunds, denial of issued by the Commission.” collateral (b). § refusal to let Puget U.S.C. 825i withdraw its In addition, complaint all parties expose “[l]ike would seeking Puget to greater ac cess refund courts, liability to the federal should we [Puget reverse. Ac- is] held cordingly, Hilton, under requirement constitutional risk Pug- of stand et “might become ing.” aggrieved upon Shell Oil v. rever- Co. 47 F.3d sal” it to bring allows (D.C.Cir.1995). appeal. The D.C. Cir cuit has held that aggrievement both B standing require “that petitioners estab Although it has lish, standing to at a them, raise minimum, ‘injury in fact’ to a Puget’s procedural arguments protected are unavail- interest.” Id. (interpreting the ing. On June 2001, FERC similar aggrievement extended requirement of 28 price mitigation beyond California to 2344). § U.S.C. rest of the states, western including the disagreement “[M]ere with an Pacific Northwest. June 2001 Order, agency’s rationale a substantively fa ¶ 61,418 62,568. The June decision, vorable even where such dis 2001 Order also required public utility sell- agreement focuses an interpretation ers and buyers to engage in settlement law to which a party objects, does not discussions to determine the amount of constitute the sort of injury necessary for refunds owed. Id. at days Three purposes of Article III standing....” Id. later, on 22, 2001, June FERC clarified 1202(internal quotation omitted). marks that the settlement discussions should not The general rule is that a party may not be limited to California entities “may but appeal from a decree in its favor. Lin also focus on settling past accounts related dheimer Co., Illinois Bell Tel. 292 U.S. to sales in the Pacific Northwest.” 151, 176, 54 S.Ct. 78 L.Ed. 1182 22, 62,- (1934). are, however, There exceptions to 583. On the same day, Puget filed a mo- general rule, one of which we find tion to dismiss complaint and notice of applicable here. This is the exception for withdrawal. “any “participant” turn define lations notice contends Puget the Commis- employee or party” upon complaint withdrawal one is 385.102(b). “party” A § Id. sion. is proceeding refund respon- ais complaint, filed has who lawof matter as a effective became based has effec- who proceeding, notice, dent after days fifteen 385.102(c). The intervened. tively proceeding refund entire nullifying rel- particularly intervening, not process argument case. in this issue 18 C.F.R. out laid here, is evant Proponents Refund some although that § 385.214. no Puget’s to opposition in motions filed not could 18 C.F.R. opposition in interpreted tice, motions has these FERC from on withdrawal limitation no Puget’s 385.216(b)(1) placing as prevented have § Pro of with- the Refund notice because party’s a effect may oppose into going who time, to Order, 103 FERC not, at that 2003 were June ponents drawal. alternative, defer to must we the Because In 62,365 n. 19. proceeding. 61,348 at the regula as its own of regulations the interpretation interpreted also is not with- interpretation] the oppose to as non-party long [the a “so tion permitting the simultaneously with by or inconsistent complaint erroneous of a plainly drawal FERC, Servs., Inc. to withdrawal Entergy opposition in regulation,” motion filing a (inter Id.; (D.C.Cir.2004) intervene. to 1209 a motion as 375 F.3d well as disagree. omitted), Order, we marks quotation nal November situation, that 61,958-59. ¶ 61,183 at a with- that provide regulations not FERC did if even according to at the is effective any pleading “of drawal a later until to intervene motion the grant if ... filing of date days from of 15 end to motion granted date, could it of notice to the opposition in motion no were motions both day intervene period that within is filed withdrawal inter- an non-party making filed, thus an issue not authority does decisional a motion filing of capable party vening within withdrawal disallowing order 385.212(a)(2). § 18 C.F.R. under 385.216(b)(1). opposition § C.F.R. period.” that ¶ 61,348 Order, 25, 2003 opposi- hand, “a motion If, on the 10, 2003 19; November n. with- filed is withdrawal of a notice to tion Accord- 61,958-59. ¶ 61,183 at not withdrawal day period, the 15 Attorney General because ingly, authority is- decisional until effective filed, City of Seattle Washington withdrawal.” accepting order an sues to motions simultaneous July contends 385.216(b)(2). Puget § Id. opposition motions intervene opposed Proponents Refund although Order, 105 withdrawal, November ef- not notice, opposition Puget’s 13, FERC 61,958 n. ¶ 61,183 at states regulation another because fective com- argument rejected par- “a only filed may be motions a matter withdrawn had been timely plaint a filed has who person or a ticipant notice filed its days after fifteen law been not has which to intervene motion 61,958-59.2 withdrawal, id. regu- 385.212(a)(2). The § denied.”1 category because into this fall would nents person “a permitting language Although the out intervene motions their intervene timely motion a has filed who time. C.F.R. been not denied/’ has added), might ap- (emphasis 385.212(a)(2) § Seattle Port of City Tacoma "partici- 2. The officially yet not someone ply to in the intervene motions their file did not Propo- of the Refund none "party,” pant” We see no error in FERC’s interpreta- cause Puget’s complaint did request tion of own regulations. The regulation required “refund date,” effective thus addressing notices of withdrawal does not stripping FERC of any authority to order explicitly state opposition to such no- refunds for electricity purchases in the may tices only made by formal parties Pacific Northwest. reject We this argu- proceeding. 18 C.F.R. ment as well. 385.216(b)(1). § FERC did not err Congress provided “[wjhenever has treating the Attorney General of Washing- [FERC] institutes a proceeding under this ton and City of Seattle as intervenors section, [FERC] shall establish a refund for purposes of opposing Puget’s notice of effective date.” 824e(b) U.S.C. withdrawal. We also find support (2004). This refund effective date may not FERC’s decision in the fact that FERC be earlier than sixty days after the filing granted of Tacoma and the Port a complaint or the filing of a notice party Seattle status in the California FERC that it intends to investigate refund rates proceeding 9, on July 2001. See sua sponte.3 Id. The Domtar refund effective FERC, Maine date Corp. v. 347 F.3d is important 304, because any 309 (D.C.Cir.2003) refunds ordered (permitting retro- by FERC are grant active intervention). limited to the fifteen-month Given the period extremely following close ties refund between the effective date. proceeding Without and the a refund Pacific date, Northwest effective pro- ceeding, and entire Pacific frequent Northwest proceeding treatment would of the two refund have proceedings been moot as one and because FERC would same, see, e.g., 22, have Order, powerless been to order refunds for ¶ 61,425 the period (using the sought SDG by the Refund Propo- & E heading and clarifying that “all par- nents. ties to the SDG & E complaint proceeding The Refund Opponents argue that Pug- ... may also focus on settling past ac- et’s complaint never requested refunds counts related to sales in the Pacific setting a refund effective date. To Northwest”), FERC could also have ac- the contrary, Puget’s complaint clearly cepted opposition motions of Tacoma stated that “[Puget] requests any that re- and the Port of Seattle as filed by parties funds ordered the Commission reflect to the proceeding. For these reasons, we the prospective nature of the relief sought. hold that the withdrawal of Puget’s com- If and to the extent any refund is called plaint did not become effective aas matter for in response to [Puget’s] petition, [Pug- law, may use the complaint et] respectfully requests that the refund as a basis for awarding refunds in the effective date be set (60) ... sixty days Pacific Northwest. after the date of filing of this Complaint.”

C In the alternative, the Refund Op The Refund Opponents ponents supporting Pug- argue that because FERC dis et argue further the Pacific Northwest missed Puget’s complaint on 15, December proceeding was procedurally doomed be- 2000, 15, December 93 FERC Pacific Northwest proceeding 26, July until 3. Amendments 8, August 2005, effective re- 2001, nearly three weeks filing after their moved the sixty-day waiting period, permit- motions opposition to the withdrawal. ting the refund effective date to be early set as They had, however, intervened in the Califor- as the date the complaint is filed or the date nia refund proceeding at they the time op- the Commission files notice of its investiga-

posed Puget's notice of withdrawal. tion. 16 824e(b) (2006). U.S.C. aas matter request was denied rehearing prevented 62,019-20, 61,294 at filed, this it was days after thirty of law refund effective aof establishment ability for strip FERC petition a not denial though did even date 12, modify In its decision January 2001. its mind change rehearing and sellers buyers that words, they argue 2003 Order. the June could spot market explained already Moreover, we December that on notice have been keep market rehearing petitions date the effective 2000, may serve as an alternative notice that participants requesting complaint because date, rejected once effective refund prior to December dismissed date made be the future might rea- for two fails argument This 2000. Utils. Pub. date. effective refund First, participants market sons. 1047(“Further, some Comm’n, prior notified Pacific Northwest sought promptly Parties of the California complaint FERC’s dismissal determination initial rehearing of FERC’s effective a refund requested Puget had August in its effective date refund itself of December date short, partici- Order. Complaint,” a “Notice created origi- apprised quickly pants were re- “seeks complaint stated subject might date nal effective refund re- date, the extent fund effective revision.”). Here, petition Puget filed days for, sixty after is called fund order challenging FERC’s rehearing for notice FERC’s Complaint.” filing of the Thus, sellers in complaint. dismissing its filing of this “[cjopies that explained also already WSPP, Pacific Northwest —who to the upon parties were served a requesting complaint electronically to Puget’s notice on transmitted (www. sufficiently on its website on date —were posting for refund effective WSPP to distribution at- for electronic wspp.org) complaint Puget’s that notice In Agreement.” to the WSPP still all date were effective refund tendant published was addition, notice a filed because viable potentially 8, 2000. November Register Federal Any reliance rehearing. for petition Fed.Reg. 65 effective a refund the lack sellers “ of a final order issuance ‘prior date support Second, not FPA does ” De- (quoting risk.’ their own atwas Opponents. Refund contention ¶ 61,275 Order, FERC 97 if 2001 hand, provides cember FPA On the one application an 62,198). respond at not FERC does fil days after thirty within rehearing ar Opponents Refund Finally, the be deemed “may application ing, the to set required gue that (a) § U.S.C. 825i 16 denied.” been all, insti date, if at effective refund before added). regulations FERC’s (emphasis proceeding. refund §a tuting automatic, stating denial make this Com that “[t]he its brief acknowledges in request upon acts [FERC] “[u]nless 206(b) § FPA an never established mission request days after rehearing within ” matter.... for this date effective refund 18 C.F.R. denied.” filed, request is is FPA language However, the plain hand, the stat 385.713(f). On the § on when any restriction place does is the record that until also states ute date. effective the refund may set may at appeals, court of with Inc., Partners, Dignity Hertzberg v. notice, modify time, reasonable with any Cir.1999) (“Where (9th made. it has finding or order set aside text, clear from a statute meaning of (a). Thus, if even § 825i 16 U.S.C. further.”)- Rather, we need look no Order, 62,198), “[wjhenever statute states the Com long as that protection is balanced mission institutes a proceeding under this against fairness to market participants by section, the Commission shall establish a providing them with the necessary notice refund effective date.” 16 U.S.C. change practices their prior to the date 824e(b). § The statute mandates the es might start to accrue. date, tablishment of an effective but it does sum, reject we the procedural chal- not mandate when FERC must establish lenges raised the Refund Opponents it. To the extent the word “institutes” is and hold that Puget’s complaint requested ambiguous, connoting both the date date, a refund effective FERC’s dismissal shall be established at pro the time the of Puget’s complaint did not disturb ceeding begins the date shall be ability FERC’s to set the refund effective anytime established FERC is involved in date, and required FERC was not to for- such a proceeding, we owe deference to mally set the refund effective prior date interpretation of the ambiguous instituting a language. Chevron, 206 refund proceeding. 842-43, We 467 U.S. also S.Ct. 2778. hold that Puget’s FERC made complaint clear its was not interpretation when it announced withdrawn as that the a matter of law because the statute permit would FERC to set the Refund Proponents timely opposed Puget’s refund effective date at December notice of withdrawal. Accordingly, FERC 103 FERC had authority to order refunds for ¶ 61,348 62,366 n. 25. transactions in the Pacific interpretation, during permissible period, time would permit it to set the although refund it effective date declined to do so on the merits. any time, is consistent with the overall statute,

framework of the which indicates IV primary the concern Congress of was to The California Parties challenge afford notice to participants of the FERC’s decision exclude to from the Pa- period of time during they may which cific Northwest refund proceeding pur- liable for refunds. The sixty-day pro- rule of energy chases by made the California vides notice to the market that if FERC (“CERS”) Resources Scheduling ever to decides order refunds based on a in the division Pacific Northwest mar- given complaint, those refunds could cover CERS, ket. a division of the California period beginning sixty days after the Department of Resources, Water began filing of complaint, that and no earlier. purchasing power wholesale on behalf of This permissible is a construction of the California consumers in the California and statute, and supported by is prior our deci- Pacific Northwest spot markets during the sion regarding the California proceeding, energy crisis. Comm’n, See Pub. Utils. in which we found that “key the question is 462 F.3d at 1042. FERC ruled that the whether the SDG & E complaint afforded CERS transactions were outside scope the sufficient notice to partici- alert market of the Pacific Northwest refund proceeding pants purchases that sales and might be Puget because the complaint, subject on to which the refund.” Comm’n, Pub. Utils. proceeding based, F.3d focused at 1046. That on sales opinion of made clear that energy “into” has some Northwest, discretion in the Pacific setting “ ‘the earliest refund purchases whereas by effective date made allowed CERS were in order give protection actually maximum purchases California, “into” where ” consumers,’ id. (quoting December the energy was consumed. November occurred, to the pursuant ¶ 61,964 energy of the Order, 105 FERC at interconnec- Agreement, Confirmation adopted the addition, FERC n. 43. Pacific Northwest. of the within deliveries located CERS tions that the finding ALJ’s California, suggest- in the not in record in no place is evidence took There energy reaffirmed ownership occurred change Id. of Northwest. ing that Pacific the California it denied in the Pacific California, when than decision rather this February rehearing. request Parties’ Northwest. ¶ 61,- 61,109 at 9, 2004 attempt distin- Furthermore, FERC’s focus was complaint Puget’s (“Clearly, change the location where between guish Northwest, into the Pacific transactions on and the electricity occurs of ownership bilateral explained, ALJ as the physically electricity that where location were sales CERS involving transactions by either supported not is changes hands into the Pacific not into contractual governing the law or 9, 2004 Or- Northwest.”). February The energy CERS between agreements ALJ had found that claimed also der Pacific Northwest. sellers that for CERS testified a witness that California, actually occurred that Having deliveries established Id. record, Northwest. found, in the Pacific that not have could in Califor occurred purchases CERS a constrained accept such cannot We sales whether First, nia, determine we must complaint. Puget reading the Pacif scope of energy outside finding CERS FERC’s factual if the in Cali- even proceeding was delivered refund ic CERS purchased evi- in the occurred ownership substantial supported change is not legal fornia explicitly found are doing, we ALJ never In so dence. The Northwest. admitted witness a CERS deference we owe mindful California. place took energy Puget’s deliveries com scope interpretation ALJ discusses Corp. section v. Pipeline Hess Amerada plaint. actually a recitation witness 604(D.C.Cir.1997); CERS FERC, 117 F.3d Oppo- by the Refund made arguments ICC, N. R.R. Co. Burlington Report, 2001 ALJ September nents. (D.C.Cir.1993). contrast, 65,312. By 63,044 at interpretation conclude We solely focus recommendations ALJ’s is arbi- complaint scope of complaint. scope of discre- an abuse trary, capricious, of findings 65,331. proposed ALJ’s The pro- face, complaint its tion. On in Cali- place took deliveries state fact to exclude an intent of no vides indication CERS wit- mentioning the fornia without in the Pacif- purchased energy for basis clarifying the and without ness consumption market spot ic Northwest 65,385-86 finding. proposed this The com- area. geographical the outside 28). Fact of Findings (Proposed prices cap petitioned plaint hand, pages cites FERC, other on the jurisdic- to FERC’s subject sellers which evidentiary pro- the ALJ transcript of the the into energy or capacity “may sell tion employee con- a CERS ceeding where power mar- wholesale Pacific Northwest’s with- delivery is taken physical firmed prospec- order that seeks an [Puget] kets. Angeles the Los area in the control sales for wholesale prices tively caps the The Power. of Water Department North- into capacity energy or however, physi- if shows, that even record indicates language ...” This west. place took energy delivery of cal (1) sellers with concerned complaint was ownership change of California, legal (2) who were energy in selling the Pacific of the California proceeding. We accepted Northwest market. complaint is si- arguments these and excluded the CERS lent as constraint on the identity of transactions from that case. Id. at 1063- buyers or where energy ultimately 64. It would be inconsistent with our rea- would be consumed. soning to exclude the transactions from the California interpretation proceeding based in Puget’s com- sub- plaint part stantial is also on inconsistent with existence of prior pro- interpretation ceeding complaint involving filed the Pacific Northwest E market, SDG & in the California proceeding. and then to exclude the transac- complaint That similarly petitioned tions from this proceeding based “for an emergency order capping ... argument that the transactions were con- prices at which subject sellers juris- to ducted the California market. may diction bid energy ancillary ser- We therefore conclude must, that FERC vices into California’s large two bulk-pow- remand, include the CERS transactions ” er added.) (Emphasis markets.... when it determines whether refunds are contrast to its interpretation of the Puget warranted for sales in the Pacific North- complaint, FERC interpret did west market. complaint California as limiting refunds to entities that purchased energy for ultimate V consumption in California, fact some Finally, we must determine parties whether who benefited from refunds in the required to take California into account proceeding did not consume the evidence of manipulation fruits of their purchases in California. parties after interpretation ALJ hearing. permitted complaint one, Refund Proponents better upon one to sub- relied, mit new we evidence and its conflicting inter- market manipulation pretation of a similar complaint emerged after in a similar the ALJ’s evidentiary refund proceeding renders its subsequent proceeding. December interpretation unworthy of 61,304 (‘We deference. will Koch Gateway Pipeline Co. v. allow the movants and in this (D.C.Cir.1998) (“[Wjhere 815-16 proceeding to conduct additional discovery an agency treats similar situations differ- period for the January 2000 to June ently without explanation, reasoned 2001.”). its de- The Refund Proponents argued cision will be vacated as arbitrary and that new evidence had emerged as a result capricious.”). Both complaints served to of various investigations into the practices notify all sellers of energy in respec- Enron. Id. at See Lockyer, 383 tive markets that they may be liable for F.3d at 1015(explaining many of Enron’s refunds for sales energy in those mar- tactics). manipulative Despite great deal kets, regardless of where energy would of new evidence submitted to FERC in the be consumed. spring 2003, however, FERC failed to addition, take account, of it argued FERC in into relying the SDG & instead E case that the the CERS ALJ’s factual findings transactions were Sep- from subject the 2001, tember regulatory proceed- were made prior to the ings. Comm’n, Pub. Utils. Enron 462 F.3d at 25, revelations. See June 2003 Or- ¶ pointed der, Other entities to 61,348 the Pacific 103 62,366-70. FERC at Re- proceeding Northwest argue to that garding the evidence, new subse- FERC’s CERS transactions were outside the scope quent order denying rehearing stated

1035 and energy to withhold in schemes volved termi- to reaching its decision “In merely: conges- creating false Enron in assist con- to the Commission proceeding, nate of Cali- markets tion; outside record, used including Enron complete sidered tactics fil- advance order to March 2003 fornia in in the submitted material Order, implemented California; may 105 have 10, Enron 2003 November ings.” mar- ¶ outside California schemes 61,183 fraudulent FERC Northwest kets; in the Pacific utilities agency an In order in transac- requirements posting violated arbitrary capricious making an avoid assuming all of Even Enron. tions with rele determination, must “examine it in the Califor- occurred these transactions satisfactory ex and articulate vant data that market, the fact spot nia including a ‘rational action for its planation in- apparently sellers facts found between connection indicates manipulation volved in Enron’s Vehicle Motor the choice made.’” Mfrs. consider at least FERC must that Auto. Mut. Farm v. State U.S. Ass’n of spot Pacific Northwest that the possibility 2856, 77 29, 43, Co., S.Ct. 103 463 Ins. U.S. found, func- not, the ALJ market was (1983) Burlington (quoting 443 L.Ed.2d 25, 2003 Or- competitive. tional and States, 371 Lines, Inc. v. United Truck ¶ 62,366-67. 61,348 at der, FERC 103 207 9 156, 168, L.Ed.2d 83 S.Ct. U.S. es- on the record findings, based FERC’s ruling (1962)). will agency’s An 2001, “that other by the ALJ tablished where capricious arbitrary and deemed fun- supply and demand related to factors im an consider failed to “entirely agency the dramatic contributed damentals offered [or] problem aspect of portant 62,367, and id. at region,” prices runs for its decision an explanation has of such ‘lawlessness’ “no evidence agen before the evidence counter any specific regard to with shown been Serv. Comm’n La. Pub. See also cy.” Id. Pacific Northwest in the transaction (D.C.Cir.1999) FERC, F.3d v. market,” November submitted to examine FERC (requiring 61,966, be reevalu- must F.2d v. data); Co. Laclede Gas of this evidence. light ated (D.C.Cir.1993) (requiring More explanation). adequate provide Moreover, reject the contention we account evidence over, must agency an need Opponents the Refund agen dispute the may in the record that because new evidence not consider Corp. Camera findings. cy’s Universal ma- market addressing already is Bd., 340 U.S. Relations Nat’l Labor focusing proceedings separate nipulation (1951) 95 L.Ed. 488, 71 S.Ct. fail to only did misconduct. Not take must (“The substantiality of evidence below, see reasoning Laclede on this rely fairly in the record whatever into account 945(FERC order Co., F.2d Gas weight.”). from detracts grounds articu- fall on “must stand order”) (inter- in that agency by the lated requirements, these Given omitted), but we marks quotation nal or examine failure to consider prosecutorial already held showing intentional new evidence the denial justify investigations cannot potential and its in California manipulation before adjudications in contested relief arbitrary Pacific Northwest ties to Comm’n, Commission, Pub. Utils. Proponents The Refund capricious. remand Accordingly, we 1048-51. suggests, new evidence argue evi- this new to examine permit elec sellers of things, that: among other in detail manipulation of market dence in- Northwest were tricity in the 1200(D.C.Cir.l995). account for it in future orders regard- Puget has not done ing the award or so. denial refunds in the

Pacific Northwest proceeding.

may necessary also find it to call for addi- fact-finding

tional if the record evidence of manipulation is not sufficient to

enable FERC make reasoned decision. remand, FUND, view of this opinion we offer no ACCESS Plaintiff- Appellant,

on findings FERC’s based on the record established the ALJ.

UNITED STATES DEPARTMENT OF VI AGRICULTURE; United States For Service; est Johanns,* Mike Defen juncture At this preferable find it we dants-Appellees. judgment reserve on other issues raised No. 05-15585. parties. such, As we decline to reach the merits of ultimate FERC’s decision to United States Court of Appeals, deny refunds but urge the Commission to Ninth Circuit. further decision, remand, consider its Argued and Submitted Feb. 2007. light of the related decisions of this court that followed Filed Aug. final orders in the Pacific Northwest proceeding. PART;

PETITION GRANTED IN PART;

DENIED IN REMANDED.

Each party pay shall its own costs

appeal.

McKEOWN, Judge, Circuit concurring:

I concur in opinion result, and the

with the exception of question Puget

whether Sound an “ag-

grieved party.” Puget lacks standing be- granted

cause it was all the relief it sought

(i.e., granted price mitigation in the

Pacific Northwest proceeding), and thus “aggrieved” is not within the mean- (b).

ing of 16 U.S.C. point, On this

I agree with position. A party

seeking appeal establish, must at a mini-

mum, “injury in fact” protected to a inter-

est. Shell Oil Co. v. 47 F.3d * Mike predeces- Johanns is substituted Department for his Agriculture, pursuant to Fed. sor, Veneman, 43(c)(2). Ann M. Secretary R.App. P.

Case Details

Case Name: Port of Seattle v. Federal Energy Regulatory Commission

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 24, 2007

Citation: 499 F.3d 1016

Docket Number: 03-74139, 03-74472, 03-74769, 04-70110, 04-70185, 04-70703, 04-71189

Court Abbreviation: 9th Cir.