                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 27 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



AVISTA CORPORATION; et al.                       Nos. 09-70265, 09-70268, 09-
                                                 70292, 09-70313, 09-70316, 09-
              Petitioners,                       70317, 09-70640

PACIFIC NORTHWEST GENERATING                     BPA No. 09PB-13021
COOPERATIVE; et al.,

              Intervenors,
                                                 MEMORANDUM *
  v.

BONNEVILLE POWER
ADMINISTRATION; UNITED STATES
DEPARTMENT OF ENERGY,

              Respondents.



                     On Petition for Review of an Order of the
                        Bonneville Power Administration

                        Argued and Submitted May 4, 2010
                                Portland, Oregon

Before: KLEINFELD, BEA and IKUTA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      These consolidated petitions for review arise out of the latest set of Regional

Dialogue contracts offered by the Bonneville Power Administration (“BPA”) to its

customers. We deny the petition filed by the Public Utility District No. 1 of Grays

Harbor County, Washington (“Grays Harbor”), No. 09-70640. We dismiss the

other consolidated petitions, Nos. 09-70265, 09-70268, 09-70292, 09-70313, 09-

70316, 09-70317, for lack of jurisdiction because those petitions are not ripe.

      Grays Harbor voluntarily waived its rights to billing credits and participation

in the Residential Exchange Program under sections 5 and 6 of the Pacific

Northwest Electric Power Planning and Conservation Act of 1980, 16 U.S.C.

§§ 839c–d (“Northwest Power Act”). Waivers of rights are not rendered

involuntary “whenever motivated by the . . . desire to accept . . . certainty or

probability . . . rather than face a wider range of possibilities” representing

unknown better or worse outcomes. Brady v. United States, 397 U.S. 742, 751

(1970).

      In the Regional Dialogue Contract Record of Decision, the BPA clearly

stated that customers were not required to sign the Regional Dialogue Contract if

they found its terms unacceptable. Specifically in response to Grays Harbor’s

comments, the BPA explained:




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      Customers entitled to participate in billing credits are not being forced to
      waive their rights to do so. (The same holds true for the residential
      exchange.) BPA is affording customers a choice. They can sign contracts
      that are based on tiered rates and, in exchange for the greater pricing
      certainty afforded by tiered rates, agree not to request billing credits and to
      participate only in a limited fashion in the residential exchange.
      Alternatively, BPA will provide customers contracts that are, as has
      historically been the case, based on melded cost rates, and that do not require
      the customer to limit[] its requests for billing credits or the residential
      exchange. In essence, customers are being asked to make their own
      decisions as to the pricing certainty they wish to enjoy.

That the BPA promised to offer an alternative contract, but did not make one

immediately available, did not render Grays Harbor’s adoption of its Regional

Dialogue Contract involuntary.

      “[A]bsent some affirmative indication of Congress’ intent to preclude

waiver, we . . . presume[] that statutory provisions are subject to waiver by

voluntary agreement of the parties.” United States v. Mezzanatto, 513 U.S. 196,

201 (1995). “[W]e will not interpret Congress’ silence as an implicit rejection of

waivability.” Id. at 203–04. Grays Harbor has not pointed to any provisions of

sections 5 or 6 of the Northwest Power Act that preclude waiver of benefits as

effected in sections 12.1 or 12.2 of its Regional Dialogue Contract.

      Section 6(h)(1) of the Northwest Power Act explicitly provides that the BPA

need grant billing credits only “[i]f a customer so requests.” 16 U.S.C.

§ 839d(h)(1).


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         Likewise, section 5(c) of the Northwest Power Act requires the BPA to

participate in the Residential Exchange Program only when “a Pacific Northwest

electric utility offers to sell electric power . . . at the average system cost of that

utility’s resources in each year.” 16 U.S.C. § 839c(c). Neither provision limits a

customer’s ability to waive the right to request such benefits nor, in the latter case,

to agree to a particular formula for determining that customer’s “average system

cost.”

         Similarly, Grays Harbor has not established a violation of sections 6(e)(1) or

6(k). Although section 6(e)(1) requires the BPA “to the maximum extent

practicable” to “make use of [its] authorities . . . to acquire conservation measures

and renewable resources, to implement conservation measures, and to provide

credits and technical financial assistance for the development and implementation

of such resources and measures,” the provision does not define “maximum extent

practicable.” 16 U.S.C. § 839d(e)(1). Here the BPA has reasonably concluded,

supported by a lengthy administrative record, that seeking waivers of requests for

billing credits from its customers is consistent with its tiered-rate approach to

maximizing conservation efforts. We must defer to the BPA’s reasonable

interpretation of the statute. See Portland Gen. Elec. Co. v. Bonneville Power

Admin., 501 F.3d 1009, 1025 (9th Cir. 2007).


                                             4
      Likewise, the obligation under section 6(k) to “distribute[] equitably”

various “benefits under this section” does not impose an affirmative obligation on

BPA to provide billing credits, nor does it prevent BPA from seeking waivers of

the right to request such credits. 16 U.S.C. § 839d(k). Accordingly, we reject

Grays Harbor’s challenges to the Regional Dialogue Contract, and conclude that

sections 12.1 and 12.2 of the Regional Dialogue Contract are not contrary to the

Northwest Power Act.

      For the reasons stated in California Energy Resources Conservation &

Develop. Comm’n v. Johnson, 807 F.2d 1456, 1463 (9th Cir. 1987), we dismiss as

unripe the other consolidated petitions filed by several Investor Owned Utilities,

which challenge provisions of the BPA’s Regional Dialogue Contracts that give

“Renewable Energy Credits” to the BPA’s preference customers at no extra charge,

but not to the Investor Owned Utilities in this case. The petitions raise challenges

under section 7 of the Northwest Power Act, which defines the BPA’s ratemaking

authority, but the BPA has not yet set rates, nor has the Federal Energy Regulatory

Commission yet approved those rates. Specifically, the Investor Owned Utilities

claim that the transfer of Renewable Energy Credits to preference customers

conflicts with sections 7(b)(1) and 7(g) of the Northwest Power Act by inequitably

allocating benefits, or else making rates not of “general application.” 16 U.S.C.


                                          5
§§ 839e(b)(1), (g). Because the BPA has not yet completed a ratemaking

proceeding, and the Investor Owned Utilities are not challenging an actual rate

made in violation of section 7, these particular challenges are not ripe for decision.

See California Energy Resources Conservation & Develop. Comm’n v. Johnson,

807 F.2d at 1463 (“[a] decision at this juncture would resolve a dispute about

hypothetical rates.”). Because the petitions are not ripe for review, there is no

“case or controversy” and thus we have no jurisdiction to review the merits of the

petitions. See City of Seattle v. Johnson, 813 F.2d 1364 (9th Cir. 1987) (dismissing

a challenge to an earlier BPA ruling for lack of jurisdiction because the BPA had

not set rates and FERC had not approved them, and thus the controversy was not

ripe); see also Pac. Nw. Generating Co-op. v. Dep’t of Energy, 580 F.3d 792,

805–06 (9th Cir. 2009) (quoting Pub. Utils. Comm’r of Or. v. BPA, 767 F.2d 622,

629 (9th Cir.1985), for the proposition that a challenge to methodology in the

ratemaking context, dismissed as unripe at this stage, could become reviewable at a

later date because “[i]f FERC fails to correct any defects in the methodology

[which affected ratesetting], redress is available in the court of appeals,” where

“any . . . cognizable challenges will be fully reviewable . . . .”).

       PETITION No. 09-70640 DENIED; PETITIONS Nos. 09-70265, 09-

70268, 09-70292, 09-70313, 09-70316, 09-70317 DISMISSED.


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