Idaho Conservation League v. Bpa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

IDAHO CONSERVATION No. 22-70122
LEAGUE; GREAT OLD BROADS
FOR WILDERNESS; IDAHO
RIVERS UNITED,
OPINION
Petitioners,
v.

BONNEVILLE POWER
ADMINISTRATION,

Respondent,
______________________________

NORTHWEST REQUIREMENTS
UTILITIES; ALLIANCE OF
WESTERN ENERGY CONSUMERS;
PUBLIC POWER COUNCIL;
PUGET SOUND ENERGY INC,

Intervenors.

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

Argued and Submitted June 8, 2023
Seattle, Washington
2 IDAHO CONSERVATION LEAGUE V. BPA

Filed October 16, 2023

Before: Michael Daly Hawkins, Carlos T. Bea, and Daniel
A. Bress, Circuit Judges.

Opinion by Judge Bress;
Dissent by Judge Bea

SUMMARY *

Bonneville Power Administration / Article III Standing

The panel denied a petition for review brought by
environmental groups alleging that the Bonneville Power
Administration (“BPA”) failed to comply with its statutory
duties in the Northwest Power Act (“NWPA”) relating to
fish and wildlife when BPA issued a decision setting power
rates for the 2022-2023 fiscal period (“BP-22”).
BPA is a federal agency tasked with selling the power
generated at various hydroelectric facilities in the Pacific
Northwest. The Pacific Northwest Electric Power and
Conservation Planning Council (“the Council”) is a
policymaking body responsible for developing a document
called the “Program,” which lays out measures to protect,
mitigate, and enhance the fish and wildlife that are affected
by dam and reservoir projects within the Columbia River
Basin.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 IDAHO CONSERVATION LEAGUE V. BPA 3

Petitioners alleged that in its BP-22 ratemaking, BPA
failed to abide by NWPA § 4(h)(11)(A), which requires BPA
provide equitable treatment for fish and wildlife, and take
into account the Council’s Program.
The panel held that petitioners had Article III
standing. First, petitioners have alleged injury in fact where
they are interested in the fish populations in the Columbia
River Basin, and ongoing harm to these fish populations
inflicts an injury on petitioners’ members. Second, any
harm to the fish populations is traceable to BPA’s BP-22
ratemaking. Third, petitioners have adequately alleged
redressability where it is a reasonable inference from the
historical record that petitioners’ injuries would be at least
partially redressed by a favorable decision on the merits.
Turning to the merits, the panel held that the text and
structure of the NWPA as a whole convincingly provides
that NWEPA § 4(h)(11)(A) does not apply to ratemaking
where that provision does not mention ratemaking, and other
features of the statutory scheme buttress this conclusion.
Dissenting, Judge Bea would hold that petitioners have
not demonstrated that they have Article III standing because
the alleged injury is not fairly traceable to BPA’s ratemaking
decisions, and therefore this court lacks subject matter
jurisdiction over the petition for review.
4 IDAHO CONSERVATION LEAGUE V. BPA

COUNSEL

Andrew R. Missel (argued), Advocates for the West,
Portland, Oregon; Laurence J. Lucas, Advocates for the
West, Boise, Idaho; for Petitioners.
J. Courtney Olive (argued), Special Assistant United States
Attorney, Bonneville Power Administration, Office of
General Counsel, Portland, Oregon; Sean E. Martin,
Assistant United States Attorney; Natalie K. Wight, United
States Attorney; United States Attorney’s Office, Portland,
Oregon; Marcus H. Chong Tim, General Counsel; Timothy
A. Johnson and Anne E. Senters, Assistant General
Counsels; Richard A. Greene and B. Tucker Miles,
Attorneys; Bonneville Power Administration, Portland,
Oregon; for Respondent
Matthew Schroettnig, General Counsel, Northwest
Requirements Utilities, Portland, Oregon, for Intervenor
Northwest Requirements Utilities.
Sommer Moser, Davison Van Cleve PC, Portland, Oregon,
for Intervenor Alliance of Western Energy Consumers.
Irene A. Scruggs, Attorney, Public Power Council, Portland,
Oregon; Steve J. Odell, Marten Law LLP, Portland, Oregon;
for Intervenor Public Power Council.
Jason T. Kuzma, Puget Sound Energy Inc., Bellevue,
Washington, for Intervenor Puget Sound Energy Inc.
Richard K. Eichstaedt, Eichstaedt Law Offices PLLC,
Spokane, Washington; Ted C. Knight, Special Legal
Counsel, Ted C. Knight Law, Bainbridge Island,
Washington; for Amicus Curiae Coeur d’Alene Tribe and
Spokane Tribe of Indians.
 IDAHO CONSERVATION LEAGUE V. BPA 5

OPINION

BRESS, Circuit Judge:

The Bonneville Power Administration (BPA) is a federal
agency tasked with selling the power generated at various
hydroelectric facilities in the Pacific Northwest. In the
decision on review, BPA set its rates for the 2022–2023
fiscal period. Environmental groups now petition for review
of that decision, arguing that BPA failed to comply with a
pair of statutory duties in the Northwest Power Act relating
to fish and wildlife. See 16 U.S.C. § 839b(h)(11)(A).
Because we conclude that these duties do not apply to BPA’s
ratemakings, we deny the petition.
I
A
Created in 1937, BPA is a federal power-marketing
agency within the Department of Energy. See Nw. Env’t
Def. Ctr. v. Bonneville Power Admin. (NEDC 2007), 477
F.3d 668, 672 (9th Cir. 2007). BPA is responsible for
marketing electric power generated from the Federal
Columbia River Power System, which is comprised of 31
federal hydroelectric dams in the Columbia River Basin that
are operated by the U.S. Army Corps of Engineers and the
Bureau of Reclamation. See id. at 672–73. BPA also
markets power from a non-federal nuclear plant and several
other non-federal power plants. NEDC 2007, 477 F.3d at
673. Taken together, BPA provides about a third of the
power generated in the Pacific Northwest. BPA’s customers
include federal agencies, public and private utilities, and
direct service industrial customers. Id.
6 IDAHO CONSERVATION LEAGUE V. BPA

BPA’s funding system differs from most federal
agencies in that BPA does not obtain annual appropriations
from Congress. Id. Instead, BPA’s operations are financed
from the “BPA fund,” which is sourced from the revenue
BPA generates through its sales and transmission of
electricity. Id. Because BPA is self-financed, it must set its
rates high enough to cover costs. Id. (citing Indus.
Customers of Nw. Utils. v. Bonneville Power Admin., 408
F.3d 638, 641 (9th Cir. 2005)). Yet by statute, BPA must
also sell power “at the lowest possible rates.” 16 U.S.C.
§ 838g.
BPA sets its rates through ratemakings, called “rate
cases,” a process that resembles agency rulemaking. See 16
U.S.C. § 839e(i); see also Ass’n of Pub. Agency Customers,
Inc. v. Bonneville Power Admin. (APAC), 126 F.3d 1158,
1176 (9th Cir. 1997). Built into this process are numerous
opportunities for the public and interested parties to
participate, including by submitting written briefs to the
agency. See 16 U.S.C. § 839e(i)(1)–(3); see also Final Rules
of Procedure, 83 Fed. Reg. 39,993-01, 40,009 (Aug. 13,
2018).
To determine the rates that it needs to charge to maintain
its operations, BPA relies on estimates of its anticipated
spending. These projections are not made in the rate
proceeding but are determined ahead of time through a
process called Integrated Program Review (IPR). See Fiscal
Year (FY) 2022-2023 Proposed Power and Transmission
Rate Adjustments Public Hearing and Opportunities for
Public Review and Comment, 85 Fed. Reg. 77,189-01,
77,190 (Dec. 1, 2020). In the IPR process, BPA prepares
estimates of its expenses and capital spending and allows
interested parties the opportunity to review and comment on
them.
 IDAHO CONSERVATION LEAGUE V. BPA 7

In neither IPR nor ratemaking does BPA set specific
funding levels for different programs, nor does it decide
which costs to incur. As BPA explained in its Record of
Decision (ROD) on review here, ratemaking determines
“how to recover BPA’s forecasted costs . . . , not whether to
incur a cost or which costs to incur.” Put differently, at this
stage “BPA’s funding projections are general in nature”
because “BPA is not finally deciding what programs to
pursue or how it will meet its various obligations over the
rate period.” Cf. Golden Nw. Aluminum, Inc. v. Bonneville
Power Admin. (Golden Northwest), 501 F.3d 1037, 1053
(9th Cir. 2007) (explaining that the rate case is “not the
forum for making decisions regarding which fish and
wildlife alternative[s] to implement”). BPA’s focus during
ratemaking is thus on recovering costs that it generally
expects to incur in carrying out its duties, meeting its legal
obligations, and pursuing its objectives. See 16 U.S.C.
§ 839e(a)(1).
One such objective is BPA’s Strategic Plan for 2018–
2023. The Strategic Plan was adopted in response to BPA
customer concerns regarding increased prices, and it centers
largely on cutting costs and improving BPA’s financial
health. In particular, BPA sought to impose “cost-
management discipline” by “hold[ing] the sum of program
costs, by business line, at or below the rate of inflation
through 2028.” BPA’s stated purpose for these measures
was to “deliver on [its] public responsibilities through a
commercially successful business.”
Another expense BPA must plan to recover through
ratemaking is the cost of complying with its environmental
obligations. BPA’s “[r]ates must be high enough to ensure
that BPA will recover its total costs, including costs
associated with ‘fish and wildlife measures.’” Golden
8 IDAHO CONSERVATION LEAGUE V. BPA

Northwest, 501 F.3d at 1049 (quoting 16 U.S.C. § 839e(a),
(g)). Thus, BPA must “develop a realistic projection of fish
and wildlife costs that accurately reflect[s] the information
available at the time the rates were set . . . .” Id. at 1053.
BPA takes these projected environmental mitigation costs
into account during the IPR process.
As relevant here, the key source of BPA’s environmental
obligations is the Pacific Northwest Electric Power Planning
and Conservation Act of 1980, otherwise known as the
Northwest Power Act (NWPA). Pub. L. No. 96–501, 94
Stat. 2697 (1980) (codified at 16 U.S.C. §§ 839–839h). 1
That statute created the Pacific Northwest Electric Power
and Conservation Planning Council (known as “the
Council”), a policymaking body consisting of state
government members from Idaho, Montana, Oregon, and
Washington. See Seattle Master Builders Ass’n v. Pac. Nw.
Elec. Power & Conservation Plan. Council, 786 F.2d 1359,
1362 (9th Cir. 1986); see also 16 U.S.C. § 839b(a)(2). The
Council and BPA “operate independently of each other,” but
“[t]heir functions directly overlap” in a few ways. Seattle
Master Builders, 786 F.2d at 1362. Most relevant here, the
Council is responsible for developing a policy document,
called the “Program,” which lays out measures to protect,
mitigate, and enhance the fish and wildlife that are affected
by dam and reservoir projects within the Columbia River
Basin. See generally 16 U.S.C. § 839b(h).
The NWPA imposes certain environmental
responsibilities on BPA, including ones tied to the Council’s
Program. Consistent with these obligations, BPA engages
in environmental mitigation measures both at the
hydroelectric facilities themselves and “offsite” in adjacent

1
We note that Title 16 has not been enacted as positive law.
 IDAHO CONSERVATION LEAGUE V. BPA 9

habitat areas. See, e.g., 16 U.S.C. § 839b(h)(6)(E)(ii), (h)(8),
(h)(10). Most relevant here, NWPA § 4(h)(11)(A) requires
that, when exercising certain responsibilities, BPA must
“provide[] equitable treatment for . . . fish and wildlife,” and
must “tak[e] into account” the Council’s Program “to the
fullest extent practicable.” See 16 U.S.C.
§ 839b(h)(11)(A)(i)–(ii). At issue in this case is whether
these two duties apply to the agency decision on review:
BPA’s “BP-22” ratemaking, which established BPA’s
power and transmission rates for the 2022–2023 fiscal
period. We will have more to say about § 4(h)(11)(A) and
related provisions in our analysis below.
B
In preparation for the BP-22 ratemaking, BPA began the
associated IPR process in June 2020. The cost projections
BPA announced in that process were influenced by BPA’s
“commit[ment] to supporting BPA’s strategic plan and
financial health objectives,” which called for flat budgets
relative to the previous rate period, including for fish and
wildlife spending.
After the IPR process concluded, BPA commenced the
formal BP-22 ratemaking in December 2020. At the start of
this process, BPA released its initial proposal for power and
transmission rates. BPA’s proposal projected an increase in
surplus power revenues—the amounts BPA obtains by
selling power in excess of its obligations—of over $100
million.
BPA saw this as an opportunity to take one of two paths.
The first option was reducing the rates charged to its
customers by about 4.5%, providing “short-term rate relief.”
The second option was to hold rates flat and invest the
surplus revenue in BPA’s ongoing financial health. Taking
10 IDAHO CONSERVATION LEAGUE V. BPA

this second course would “support BPA’s long-term
strategic and financial objectives” through such means as
paying down debt, funding operations and maintenance, and
bolstering BPA’s financial reserves. BPA proposed taking
the second option.
A thorough ratemaking process ensued, involving 34
parties, over 5,000 pages of testimony and exhibits, and
multiple settlement offers. These parties included the
petitioner environmental advocacy groups, who participated
extensively in the agency process. BPA eventually reached
a proposed settlement that split the difference between
BPA’s proposed alternatives, reducing power rates by 2.5%
and taking measures to improve BPA’s financial security.
Most of the parties to the ratemaking did not object to the
proposed settlement. But a handful of parties, including
petitioners, did. Specifically, petitioners objected that BPA
was required to abide by NWPA § 4(h)(11)(A) when
projecting its spending and setting its rates, and that the
settlement violated this mandate by not assigning more funds
to fish and wildlife mitigation. Essentially, petitioners want
BPA to use some of its surplus in favor of greater fish and
wildlife mitigation measures.
After considering petitioners’ further objections, BPA
concluded the ratemaking by issuing its Final ROD, which
adopted the proposed settlement. BPA then submitted its
rates to the Federal Energy Regulatory Commission (FERC)
for approval. See 16 U.S.C. § 839e(a)(2). Petitioners
intervened in the FERC proceeding, asking FERC to
disapprove the rates based on BPA’s failure to comply with
§ 4(h)(11)(A) of the NWPA. See Bonneville Power Admin.,
178 FERC ¶ 61,211 (2022). FERC concluded that “[BPA’s]
compliance with its environmental review and fish and
wildlife protection obligations is . . . outside the scope of
 IDAHO CONSERVATION LEAGUE V. BPA 11

[FERC’s] review,” and approved the BP-22 rates. Id. at *2.
BPA’s rates became final “upon confirmation and approval
by” FERC. 16 U.S.C. § 839e(a)(2).
Petitioners now seek review in this court. We have
jurisdiction under 16 U.S.C. § 839f(e)(1)(G) and
§ 839f(e)(5). The NWPA’s judicial review provision
incorporates Section 706 of the Administrative Procedure
Act. See 16 U.S.C. § 839f(e)(2). We must uphold BPA’s
rate-setting unless it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Pub.
Util. Dist. No. 1 of Douglas Cnty. v. Bonneville Power
Admin., 947 F.2d 386, 390 (9th Cir. 1991); see also 5 U.S.C.
§ 706(2)(A).
II
Petitioners contend that in its BP-22 ratemaking, BPA
failed to abide by NWPA § 4(h)(11)(A), which requires that,
in exercising certain responsibilities, BPA must “provide[]
equitable treatment for . . . fish and wildlife,” and “tak[e]
into account” the Council’s Program “to the fullest extent
practicable.” See 16 U.S.C. § 839b(h)(11)(A)(i)–(ii).
Petitioners argue that BPA violated the NWPA when it did
not set its rates consistent with these allegedly applicable
obligations. We must first ascertain whether petitioners
have Article III standing to advance this claim.
In its briefing, BPA did not contend that petitioners
lacked standing. But because “we have ‘an independent
duty’ under Article III ‘to assure that standing exists,’”
Friends of Animals v. U.S. Fish & Wildlife Serv., 879 F.3d
1000, 1003 n.2 (9th Cir. 2018) (quoting Wash. Env’t
Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013)), we
ordered the parties to address standing at oral argument and
to file supplemental briefs on that issue. At that point, BPA
12 IDAHO CONSERVATION LEAGUE V. BPA

argued that petitioners lacked Article III standing. We
disagree.
To have standing, petitioners must sufficiently allege “(i)
that [they] suffered an injury in fact that is concrete,
particularized, and actual or imminent; (ii) that the injury
was likely caused by the defendant; and (iii) that the injury
would likely be redressed by judicial relief.” TransUnion
LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). As
organizations, petitioners “may assert standing on behalf of
their members as long as the ‘members would otherwise
have standing to sue in their own right, the interests at stake
are germane to the organization’s purpose, and neither the
claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.’” Wash.
Env’t Council, 732 F.3d at 1139 (quoting Friends of the
Earth, Inc. v. Laidlaw Env’t Servs., Inc., 528 U.S. 167, 181
(2000)).
“It is well established ‘that environmental plaintiffs
adequately allege injury in fact when they aver that they use
the affected area and are persons “for whom the aesthetic and
recreational values of the area will be lessened” by the
challenged activity.’” Ass’n of Irritated Residents v. EPA,
10 F.4th 937, 943 (9th Cir. 2021) (quoting Friends of the
Earth, 528 U.S. at 183). In this case, no one questions that
petitioners are interested in the anadromous fish populations
in the Columbia River Basin. Petitioners have undertaken
efforts to preserve the populations of salmon and steelhead
in the Basin, and their members assert individual aesthetic
and other interests in the fish populations. Ongoing harm to
these fish populations, which petitioners fairly allege,
therefore inflicts an injury on petitioners’ members. See Nw.
Env’t Def. Ctr. v. Bonneville Power Admin. (NEDC 1997),
 IDAHO CONSERVATION LEAGUE V. BPA 13

117 F.3d 1520, 1528–29 (9th Cir. 1997) (“The supplemental
affidavits submitted by the petitioners are sufficient to
establish that any injury to fish and wildlife interests on the
Columbia River would cause injury to each petitioner.”); see
also WildEarth Guardians v. U.S. Forest Serv., 70 F.4th
1212, 1216 (9th Cir. 2023).
We thus turn to whether any harm to the Basin fish
populations is traceable to BPA’s challenged actions and
whether these injuries would be redressed by a favorable
decision in this case. Article III’s causation requirement will
not be satisfied by “a highly attenuated chain of
possibilities.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,
410 (2013). But “[a]n injury is fairly traceable to a
challenged action as long as the links in the proffered chain
of causation are not hypothetical or tenuous and remain
plausible.” Ass’n of Irritated Residents, 10 F.4th at 943
(internal quotation marks and alterations omitted). This
standard is “less demanding than proximate causation, and
thus the ‘causation chain does not fail solely because there
are several links’ or because a single third party’s actions
intervened.” O’Handley v. Weber, 62 F.4th 1145, 1161 (9th
Cir. 2023) (quoting Maya v. Centex Corp., 658 F.3d 1060,
1070 (9th Cir. 2011)). Applying these standards, we
conclude that petitioners have sufficiently alleged that their
injuries are fairly traceable to BPA’s BP-22 ratemaking.
Our decision in NEDC 1997 is relevant on this point.
There, we considered whether environmental groups had
standing—based on their interest in the Columbia River’s
anadromous fish populations—to claim that BPA had
violated one of the very same legal obligations at issue in
this case, § 4(h)(11)(A)(i)’s “equitable treatment” mandate.
117 F.3d at 1528–30. The petitioners alleged that BPA’s
duty to provide equitable treatment for fish and wildlife
14 IDAHO CONSERVATION LEAGUE V. BPA

required BPA to set aside certain portions of water (referred
to as “non-Treaty storage”) that were created by the
construction of storage reservoirs in Canada and the United
States. Id. at 1525. We observed that “[i]f the Northwest
Power Act guarantees the fish a portion of the non-Treaty
storage, it is clear that a denial of this great benefit would
injure the fish; consequently, petitioners would be injured
and they would have standing to sue.” Id. at 1529–30. We
therefore addressed the merits of the petitioners’ claim,
analyzed the scope of BPA’s duty to provide equitable
treatment, and concluded that this duty did not require BPA
to dedicate a portion of the non-Treaty storage for fish. Id.
at 1530–34.
Here, as in NEDC 1997, petitioners contend that BPA’s
alleged duties under § 4(h)(11)(A) required BPA to take
steps which, if implemented, could reasonably be expected
to benefit the Columbia River’s anadromous fish
populations. Specifically, petitioners argue that
§ 4(h)(11)(A) required BPA to assign additional funds for
fish and wildlife when projecting its spending and, by
extension, when setting its rates. “For standing purposes, we
accept as valid the merits of [petitioners’] legal claims.”
FEC v. Cruz, 142 S. Ct. 1638, 1647 (2022); see also Warth v.
Seldin, 422 U.S. 490, 500 (1975) (“[S]tanding in no way
depends on the merits of the plaintiff’s contention that
particular conduct is illegal.”); Iten v. County of Los Angeles,
--- F.4th ---, 2023 WL 5600292, at *4–5 (9th Cir. Aug. 30,
2023) (similar). And in this case, we think that requiring
BPA to set projections and associated rates consistent with
the duties in § 4(h)(11)(A) would plausibly benefit the
Columbia River’s fish populations through increased
funding of mitigation projects. More particularly, if BPA
were legally required to comply with two statutory duties
 IDAHO CONSERVATION LEAGUE V. BPA 15

relating to environmental mitigation when making IPR
projections and setting rates, it stands to reason that fish and
wildlife would plausibly benefit, as they are the intended
beneficiaries of these mitigation obligations.
BPA objects, however, that petitioners have taken aim at
the wrong agency action. As noted above, BPA during the
ratemaking process does not determine which projects to
fund. Because “BPA’s rate cases are about collecting
dollars, not about spending dollars,” BPA maintains that
there is “no causal link” between its rate decisions and the
alleged harm to fish and wildlife.
We do not think this point undermines petitioners’
standing to sue. BPA’s objection to standing ultimately
takes issue with petitioners’ merits theory that § 4(h)(11)(A)
applies to ratemaking and requires BPA to devote more
money to fish and wildlife. That petitioners’ theory may fail
on the merits does not mean petitioners lack standing to raise
it. See Cruz, 142 S. Ct. at 1647; Iten, 2023 WL 5600292, at
*8; Barnum Timber Co. v. EPA, 633 F.3d 894, 900 n.4 (9th
Cir. 2011).
Petitioners also fairly point out that BPA has a past
practice of adhering closely to the projected spending levels
on which it bases its rate decisions. The record shows that,
over the five-year period ending in 2020, BPA’s spending on
fish and wildlife programs closely tracked, and was as a
practical matter hemmed in by, the projections BPA used in
its ratemaking. This aligns with BPA’s 2018–2023 Strategic
Plan, which commits BPA to “set firm cost constraints at the
start of the process . . . .” It is thus a “reasonable inference
from the historical record,” Ass’n of Irritated Residents, 10
F.4th at 944, that the BP-22 rate decisions will lead BPA to
spend less on mitigation efforts than it would have if BPA
16 IDAHO CONSERVATION LEAGUE V. BPA

had to set projections and rates based on its environmental
mitigation duties in § 4(h)(11)(A).
And because “Article III requires no more than de facto
causality,” Dep’t of Com. v. New York, 139 S. Ct. 2551, 2566
(2019) (quotation omitted), petitioners’ allegations about the
persistent correlation between BPA’s funding projections
and BPA’s actual spending can support Article III standing
even if, strictly speaking, BPA’s ratemaking did not make
any final funding decisions. At bottom, if BPA was bound
by § 4(h)(11)(A) to set IPR projections and rates in a manner
more cognizant of its environmental mitigation obligations,
it is at least plausible, see Ass’n of Irritated Residents, 10
F.4th at 943, that rates set in accordance with those
obligations would benefit fish and wildlife and thus the
petitioners. See NEDC 1997, 117 F.3d at 1529–30.
Our fine dissenting colleague concludes otherwise by
relying heavily on Department of Education v. Brown, 143
S. Ct. 2343 (2023), a case decided after the parties filed their
supplemental briefs on standing. Contrary to the dissent, our
decision here is consistent with Brown’s application of
“customary traceability standards.” 143 S. Ct. at 2354. In
Brown, the plaintiff borrowers challenged the Department of
Education’s authority to forgive student loans under the
HEROES Act but acknowledged that the Department may
have authority to do so under a different statute (the HEA).
Id. at 2352. They argued that if the Department had observed
notice and comment procedures under the HEROES Act, it
would have likely switched course and granted loan relief
under HEA, and that that relief would have been more
generous to the plaintiffs. Id.
In the context of such an “unusual” claim, the Supreme
Court found a lack of Article III standing because “[t]here is
 IDAHO CONSERVATION LEAGUE V. BPA 17

little reason to think that [the Department’s] discretionary
decision to pursue one mechanism of loan relief has anything
to do with its discretionary decision to pursue (or not pursue)
another.” Id. at 2352, 2354; see also id. at 2353 (“[T]he
Department’s decision to give other people relief under a
different statutory scheme did not cause [plaintiffs] not to
obtain the benefits they want.”). Unlike the wholly
independent statutes in Brown, see id. at 2353, BPA’s
spending decisions are made in light of its antecedent cost-
projections and related ratemakings. BPA’s obligations at
issue here are logically and factually related in a way that the
two alternative sources of authority for the Department’s
action in Brown were not. We thus do not think plaintiffs’
theory is too attenuated for Article III standing purposes.
For largely the same reasons, petitioners have adequately
alleged redressability. That requirement is satisfied if “it is
likely, although not certain, that [the] injury can be redressed
by a favorable decision.” Ass’n of Irritated Residents, 10
F.4th at 944 (quoting Wolfson v. Brammer, 616 F.3d 1045,
1056 (9th Cir. 2010)); see also Friends of the Earth, 528
U.S. at 187 (finding that environmental-advocate plaintiffs
sufficiently alleged redressability to seek civil penalties
because those penalties, although paid to the government
and not the plaintiffs, were sufficiently “likely” to “abat[e]
current violations and prevent[] future ones”). “[F]ull
redress” of the injury is not required, as “the ability ‘to
effectuate a partial remedy’ satisfies the redressability
requirement.” Uzuegbunam v. Preczewski, 141 S. Ct. 792,
801 (2021) (quoting Church of Scientology of Cal. v. United
States, 506 U.S. 9, 13 (1992)).
Here, for purposes of the standing inquiry, we must
assume that petitioners are correct that BPA was required to
set rates based on its duties in § 4(h)(11)(A). See Cruz, 142
18 IDAHO CONSERVATION LEAGUE V. BPA

S. Ct. at 1647–48. Under this assumption, it is “likely,” even
if “not certain,” see Ass’n of Irritated Residents, 10 F.4th at
944 (quoting Wolfson, 616 F.3d at 1056), that BPA would
provide additional funding for fish and wildlife mitigation
efforts, especially given BPA’s historical adherence to its
projections. It is, conversely, unlikely that, if required to
follow § 4(h)(11)(A) in its ratemakings, BPA would set rates
based on budget projections that take fish and wildlife needs
into greater account, but then ignore those projections in its
actual programming. Again, it is “a reasonable inference
from the historical record” that petitioners’ injuries would be
at least partially redressed by a favorable decision on the
merits. Ass’n of Irritated Residents, 10 F.4th at 944.
III
Because petitioners have Article III standing, we turn to
the merits. Petitioners argue that BPA’s ratemaking failed
to comply with two obligations contained in NWPA
§ 4(h)(11)(A), which is codified at 16 U.S.C.
§ 839b(h)(11)(A). The full text of that provision reads:

(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 applicable 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
 IDAHO CONSERVATION LEAGUE V. BPA 19

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. If,
and to the extent that, such other Federal
agencies as a result of such consideration
impose upon any non-Federal electric
power project measures to protect,
mitigate, and enhance fish and wildlife
which are not attributable to the
development and operation of such
project, then the resulting monetary costs
and power losses (if any) shall be borne
by the Administrator in accordance with
this subsection.

16 U.S.C. § 839b(h)(11)(A) (emphasis added).
Section 4(h)(11)(A) thus imposes two mandates:
§ 4(h)(11)(A)(i)’s obligation to provide “equitable
treatment” for fish and wildlife, and § 4(h)(11)(A)(ii)’s
requirement to “tak[e] into account” the Council’s Program
“at each relevant stage of decisionmaking processes to the
fullest extent practicable.” See NEDC 1997, 117 F.3d at
1531. Petitioners contend that these statutory obligations
required BPA to set aside more funding for fish and wildlife
mitigation efforts and to increase its rates so that it could
provide that funding. BPA responds that § 4(h)(11)(A) does
not apply to ratemaking at all. That is the central issue in
20 IDAHO CONSERVATION LEAGUE V. BPA

this case, and one that our precedents have not previously
considered.
BPA’s broadest argument is that § 4(h)(11)(A) does not
extend to ratemaking because it refers to BPA “managing”
and “operating” hydroelectric facilities. In BPA’s view, this
provision is limited to the management and operation of the
hydroelectric facilities themselves, which would not include
any off-site mitigation, much less ratemaking that funds off-
site mitigation. We conclude it is unnecessary to reach this
argument, and thus unnecessary to offer a fully definitive
construction of § 4(h)(11)(A), because other aspects of the
statutory scheme confirm that § 4(h)(11)(A) does not extend
to ratemaking.
The text and structure of the NWPA as a whole convince
us that § 4(h)(11)(A) does not apply to ratemaking. When
interpreting a statutory provision, we consider not only its
ordinary meaning, but also its place within the broader
statutory scheme of which it is a part. See Davis v. Mich.
Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“It 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.”). We must thus
interpret § 4(h)(11)(A) within the “overall structure and
design” of the statute that Congress enacted. Chicken Ranch
Rancheria of Me-Wuk Indians v. California, 42 F.4th 1024,
1035 (9th Cir. 2022).
Here, § 4(h)(11)(A) does not mention ratemaking.
Ratemaking is instead addressed—at length—in § 7 of the
Act. See 16 U.S.C. § 839e. That section prescribes
extensive requirements and procedures for BPA’s
ratemakings, many of them highly technical. See Pac. Nw.
Generating Co-op. v. Dep’t of Energy, 580 F.3d 792, 802
 IDAHO CONSERVATION LEAGUE V. BPA 21

(9th Cir. 2009) (describing the “detailed statutory
guidelines” governing ratemaking in § 7 of the NWPA);
APAC, 126 F.3d at 1176 (explaining how “Section 7(i)
prescribes specific procedures BPA must follow when
establishing its rates”). It is § 7 that directs BPA to set rates
“to recover, in accordance with sound business principles,
the costs associated with the acquisition, conservation, and
transmission of electric power . . . in the Federal Columbia
River Power System.” 16 U.S.C. § 839e(a)(1).
Nowhere in that exceedingly detailed section on
ratemaking did Congress so much as acknowledge
§ 4(h)(11)(A), much less the significant obligations that it
imposes when it applies. Petitioners offer no sound
explanation as to why Congress would have enacted
extensive provisions governing ratemaking in § 7, only to
layer on major additional environmental mitigation-related
requirements in a wholly separate provision that does not
even discuss ratemaking. See Utility Air Reg. Grp. v. EPA,
573 U.S. 302, 321 (2014) (“[R]easonable statutory
interpretation must account for both ‘the specific context in
which . . . language is used’ and ‘the broader context of the
statute as a whole.’”) (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 341 (1997))). In this case, the NWPA simply does
not “mandate the comprehensive, detailed mechanism that
Petitioners seek BPA” to implement, and “we cannot impose
this procedural requirement ourselves.” Confederated
Tribes of the Umatilla Indian Reservation v. Bonneville
Power Admin. (Confederated Tribes), 342 F.3d 924, 931
(9th Cir. 2003).
Other features of the statutory scheme buttress our
conclusion that § 4(h)(11)(A) does not apply to ratemaking.
In particular, § 7 requires BPA to consider various
“equitable” considerations when promulgating rates, yet
22 IDAHO CONSERVATION LEAGUE V. BPA

says nothing about the “equitable treatment” mandate in
§ 4(h)(11)(A)(i). See 16 U.S.C. § 839b(h)(11)(A)(i).
Perhaps most importantly for present purposes, § 7 requires
BPA to “equitably allocate to power rates . . . all costs and
benefits not otherwise allocated under this section,
including, but not limited to” the costs of “conservation
[and] fish and wildlife measures.” Id. § 839e(g). And there
are various other “equitable” requirements as well. Section
7 requires, for example, that BPA “equitably allocate the
costs of the Federal transmission system between Federal
and non-Federal power utilizing such system.” Id.
§ 839e(a)(2)(C). BPA must further ensure that the rates for
direct service industrial customers are “equitable in relation”
to the rates charged to analogous customers. Id.
§ 839e(c)(1)(B). And BPA must establish power rates for
customers outside the United States “which shall be
equitable in relation to rates for all electric power which is,
or may be, purchased . . . from entities outside the United
States.” Id. § 839e(l). In the face of so many express
“equitable” requirements specifically applicable to
ratemaking—including as to fish and wildlife in particular—
it is much more probable to conclude that Congress did not
impose at the ratemaking stage a further duty to provide
“equitable treatment for such fish and wildlife,” id.
§ 839b(h)(11)(A)(i), a duty that does not appear in § 7.
We encounter a similar problem with respect to
§ 4(h)(11)(A)(ii)’s requirement that BPA “tak[e] into
account” the Council’s Program “at each relevant stage of
decisionmaking processes to the fullest extent practicable.”
Id. § 839b(h)(11)(A)(ii). Once again, given the reticulated
nature of § 7 of the NWPA, there is no indication that
Congress intended to subject BPA’s ratemaking or
antecedent IPR decisions to § 4(h)(11)(A)(ii). Indeed,
 IDAHO CONSERVATION LEAGUE V. BPA 23

ratemaking and IPR do not even involve the determination
of which specific programs to pursue, whether
environmental mitigation programs or otherwise. See
Golden Northwest, 501 F.3d at 1053.
Petitioners respond that § 7 of the NWPA states that
BPA’s rates “shall be established in accordance with . . . the
provisions of this chapter,” 16 U.S.C. § 839e(a)(1), which
petitioners argue includes the entire NWPA, and therefore
§ 4(h)(11)(A). But this general cross-reference hardly
establishes the stable connection to § 4(h)(11)(A) on which
petitioners’ argument depends. The general language
referencing the entirety of the NWPA does not resolve which
provisions of the NWPA a ratemaking must be “in
accordance with.” And a provision that does not pertain to
ratemaking is not one to which ratemaking could be
conducted “in accordance with” in the first place. In view of
the text and structure of the NWPA as a whole, we do not
think Congress meant to usher in potentially massive
additional requirements to ratemaking through a generalized
reference to the rest of the statute. That is especially so
considering that § 7 does cross-reference various other
specific provisions of the NWPA but does not do as to
§ 4(h)(11)(A).
In sum, if Congress wanted § 4(h)(11)(A) to apply to
ratemaking and related budget projections—a significant
legal obligation—it would have drafted the statute to say
that. Because ratemaking is already specifically covered in
detail by the NWPA and not mentioned in § 4(h)(11)(A),
§ 4(h)(11)(A) should not be read to apply to the ratemaking
process itself. See Pit River Tribe v. Bureau of Land Mgmt.,
939 F.3d 962, 971 (9th Cir. 2019) (“When Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
24 IDAHO CONSERVATION LEAGUE V. BPA

Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (citation and alteration omitted)). 2
To be sure, and as we noted above, BPA must set its rates
to recover its costs, including for fish and wildlife
mitigation. 16 U.S.C. § 839e(a)(1); see also Golden
Northwest, 501 F.3d at 1049. But petitioners do not
challenge BPA’s rates on this basis. This is not a case, like
Golden Northwest, in which petitioners claim that BPA’s
rates fail substantial evidence review. See 501 F.3d at 1051–
53. Petitioners’ argument is that BPA was required to set its
rates based on the two legal duties in NWPA § 4(h)(11)(A).
Because we conclude these duties do not apply to
ratemaking, petitioners’ challenge fails.
PETITION DENIED.

2
Our past cases have stated that “[d]ue to the complex subject matter
and BPA’s factual and legal expertise, we give special, substantial
deference to BPA’s interpretation of the Northwest Power Act.”
Confederated Tribes, 342 F.3d at 928 (citations omitted). Petitioners
offer various arguments as to why that deference would nevertheless be
unwarranted here. We do not reach these arguments because we
conclude that petitioners’ reading of the NWPA is not correct. We
therefore have no need to defer to BPA, and no occasion to decide
whether BPA might be due any deference in its interpretation.
 IDAHO CONSERVATION LEAGUE V. BPA 25

BEA, Circuit Judge, dissenting:

While I am generally in accord with my colleagues’
considered statutory interpretation analysis, I must
respectfully dissent from their judgment because we simply
lack subject matter jurisdiction over the petition for review.
Idaho Conservation League, Great Old Broads for
Wilderness, and Idaho Rivers United (“Petitioners”) have
not demonstrated that they have Article III standing to
prosecute this suit. They claim that Bonneville Power
Administration’s (“BPA”) failure to set higher rates for
fiscal years 2022 and 2023 will restrict the amount of
additional funding that might otherwise be available for
wildlife projects in the future. Such restriction in funding
will in turn thereby decrease the fish and wildlife
populations in the Columbia River Basin, to the detriment of
Petitioners’ members who wish to observe such wildlife.
But under our caselaw, this type of speculative chain of
inferences is too attenuated for us to conclude that their
alleged injury is ‘fairly traceable’ to (i.e., caused by) BPA’s
ratemaking decisions.
As a result, Petitioners lack standing. And the majority’s
decision to reach the merits of this case is mistaken. Instead,
we are obligated to dismiss the petition for review for want
of subject matter jurisdiction.
*
Although BPA had not initially contested Petitioners’
standing, we have an independent obligation to analyze the
issue to assure ourselves that we have subject matter
jurisdiction over the petition for review. Dep’t of Educ. v.
Brown, 143 S. Ct. 2343, 2350–51 (2023). There are three
standing requirements Petitioners must meet for this court to
26 IDAHO CONSERVATION LEAGUE V. BPA

have the constitutional authority to resolve the case before
us. Petitioners must demonstrate that they have suffered (1)
a concrete, particularized injury in fact that (2) is fairly
traceable to BPA’s actions and that (3) can be redressed by
a judicial ruling in their favor. Nw. Envtl. Defense Ctr. v.
Bonneville Power Admin. (NEDC), 117 F.3d 1520, 1528 (9th
Cir. 1997) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992)). As explained below, Petitioners are
unable to satisfy the “fairly traceable” or “causation” prong
of the standing analysis. 1
The fairly traceable prong of the standing analysis
requires Petitioners to “establish a ‘line of causation’

1
In TransUnion LLC v. Ramirez, the Supreme Court altered the standing
analysis for the injury in fact element. 141 S. Ct. 2190, 2200 (2021) (A
party alleges a cognizable injury in fact if he can “identif[y] a close
historical or common-law analogue for [his] asserted injury.”). But
despite this sea change in the law of Standing, the Court notably did not
overrule Lujan’s holding “that the inability to ‘observe an animal
species, even for purely esthetic purposes, . . . undeniably’ is” an injury
in fact. See id. at 2224 (Thomas, J., dissenting) (quoting Lujan, 504 U.S.
at 562). As a result, despite the clear inconsistency between Lujan’s
holding that an esthetic injury constitutes an injury in fact and
TransUnion’s holding that such an injury must have a common law
analogue to be cognizable for standing purposes, I am bound by Lujan,
which is still good law. Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S 477, 484 (1989) (“If a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the Court of Appeals should follow the case
which directly controls, leaving to this Court the prerogative of
overruling its own decisions.”). Namely, binding Supreme Court
precedent requires me to find that Petitioners have adequately alleged an
injury in fact: they fear that their ability to observe the fish and wildlife
populations in the Columbia River Basin will be more difficult as a result
of BPA’s actions. This, regardless whether the Common Law
recognized a right to observe fish and wildlife, or an analogue, as a
cognizable chose in action.
 IDAHO CONSERVATION LEAGUE V. BPA 27

between [BPA’s] action and their alleged harm that is more
than ‘attenuated.’” Maya v. Centex Corp., 658 F.3d 1060,
1070 (9th Cir. 2011) (quoting Allen v. Wright, 468 U.S. 737,
757 (1984)). Certainly, “a causation chain does not fail
simply because it has several ‘links.’” Id. (citation omitted).
But causation is lacking when a litigant’s “chain of
contingencies . . . amounts to mere speculation” about what
might occur, or when his chain of inferences requires a court
to “guess[] as to how independent decisionmakers will
exercise their judgment.” Clapper v. Amnesty Int’l USA, 568
U.S. 398, 410–11 (2013).
The Supreme Court recently applied this analysis in
Department of Education v. Brown. In Brown, two private
litigants challenged the Biden Administration’s decision to
implement a student loan forgiveness plan under the Higher
Education Relief Opportunities for Students Act of 2003
(“HEROES Act”), which statute the Administration had
cited “to bypass [the] notice-and-comment procedures that
the Administrative Procedure Act (APA) would otherwise
demand.” 143 S. Ct. at 2349–50. The private litigants
argued that the student loan forgiveness plan was unlawful
because the Administration was required to promulgate the
plan under the Higher Education Act of 1965 (“HEA”),
which required the Administration to comply with the APA
by engaging in notice-and-comment rulemaking. Id. at
2350, 2352. The litigants claimed that such procedures were
essential because had the Administration complied with the
APA, the resulting student loan forgiveness plan might have
been “more generous” than the plan the Administration had
approved under the HEROES Act. Id. at 2352. The
Supreme Court rejected this theory of standing as
speculative and lacking the element of causation—the
28 IDAHO CONSERVATION LEAGUE V. BPA

alleged injury could not be fairly traced to the Department of
Education’s conduct. Id. at 2351. As the Court explained,

[T]he Department’s decision to give other
people relief under a different statutory
scheme did not cause respondents not to
obtain the benefits they want. The cause of
their supposed injury is far more pedestrian
than that: The Department has simply chosen
not to give them the relief they want.
Ordinarily, a party’s recourse to induce an
agency to take a desired action is to file not a
lawsuit, but a “petition for the issuance,
amendment, or repeal of a rule.” 5 U. S. C.
§ 553(e). The denial of such a petition “must
be justified by a statement of reasons,” which
in turn “can be appealed to the courts” if the
litigant has standing to maintain such a suit.
Auer v. Robbins, 519 U. S. 452, 459 (1997).
Contesting a separate benefits program based
on a theory that it crowds out the desired one,
however, is an approach for which we have
been unable to find any precedent.
It is true that in procedural-standing cases, we
tolerate uncertainty over whether observing
certain procedures would have led to (caused)
a different substantive outcome, as with
Lujan’s example of the dam and the bypassed
environmental impact statement. See 504 U.
S., at 572, n.7. In this case, however, the
causal uncertainty is not merely over whether
observing certain procedures would have led
to a different substantive outcome. Instead,
 IDAHO CONSERVATION LEAGUE V. BPA 29

the uncertainty concerns whether the
substantive decisions the Department has
made regarding the Plan under the HEROES
Act have a causal relationship with other
substantive decisions respondents want the
Department to make under the HEA. There is
no precedent for tolerating this sort of causal
uncertainty.

Id. at 2353–54.
Under this caselaw, when the litigant’s theory of
standing requires conjecture at each step of the inferential
chain or speculation regarding how others will exercise their
discretion to trace the asserted injury to the adverse party’s
complained of actions, the requirement of causation is not
met and the litigant lacks Article III standing.
*
Applying this caselaw to the case at bar compels the
conclusion that Petitioners cannot establish that their alleged
injury is fairly traceable to BPA’s ratemaking decisions
regarding what rates to set for fiscal years 2022 and 2023.
As we have previously recognized, BPA’s rate cases are
“not the for[a] for making decisions regarding which fish
and wildlife [projects] to implement.” Golden Nw.
Aluminum, Inc. v. Bonneville Power Admin., 501 F.3d 1037,
1053 (9th Cir. 2007). Petitioners readily acknowledge this
fact. In their briefing, they concede that “BPA did not decide
on funding levels for individual mitigation projects during
the rate case” and that any projected spending levels BPA
used during its rate case to predict the proper rates to set for
electricity sales “[we]re not ‘binding’ or ‘final.’” Petitioners
instead argue that they have standing because BPA “could
30 IDAHO CONSERVATION LEAGUE V. BPA

have made a different decision about overall funding that
would ultimately inure to the benefit of Petitioners.”
This kind of speculation is wholly insufficient to
establish causation. Petitioners do not provide any
explanation as to how they can connect the BPA’s changes
to its “overall funding” to the benefits that will purportedly
inure to the fish they want to nurture. To-wit, they fail to
allege facts that plausibly establish that an increase in
“overall funding” will result in programs that increase the
fish and wildlife population. They repeatedly rely simply on
a conclusory assertion that the harm to wildlife and BPA’s
actions are connected. But Petitioners’ failure to state facts
which plausibly demonstrate this conclusory assertion is
fatal to their ability to demonstrate causation. See NEDC,
117 F.3d at 1528–29 (rejecting a theory of standing because
the petitioners “submitt[ed] no evidence” to support their
claim that BPA’s actions would harm the fish populations).
But there is a more fundamental problem with
Petitioners’ arguments. That BPA may produce an increase
in overall funding by setting higher rates does not mean the
resulting excess funding will actually be earmarked for fish
and wildlife projects. For example, an official tasked with
deciding how to allocate BPA’s revenue streams may
exercise his independent judgment to use the excess revenue
to protect BPA personnel salaries from an economic
downturn or recession rather than to spend more money on
fish and wildlife. Petitioners would have us accept their
conclusory assertion that any increase in funding levels will
necessarily be funneled to wildlife projects. But we are not
required to predict how BPA officials will choose to exercise
their discretion when deciding how to expend BPA’s
financial resources. Clapper, 568 U.S. at 410–411, 413.
 IDAHO CONSERVATION LEAGUE V. BPA 31

That the chain of causation is highly attenuated is further
bolstered by Petitioners’ acknowledgement that BPA does
not necessarily handle programmatic funding decisions once
money is set aside for wildlife projects. In a declaration
submitted with Petitioners’ opening brief, the declarant
declared that rather than execute a contract “for each
[wildlife] project,” “BPA submits the [earmarked] funds . . .
as a conglomerate ‘portfolio’ of funds” for the designated
environmental group to spend on environmental ventures.
Stated differently, Petitioners’ theory of causation depends
not only on conjecture as to whether future revenues will be
allocated as Petitioners wish. But it also depends on their
assurance that a third-party environmental group that
receives a “‘portfolio’ of funds” from BPA will exercise its
independent judgment to spend that money in a manner that
is consonant with Petitioners’ pro-piscine goals. Because
Petitioners ask us to engage in several layers of “guesswork
as to how independent decisionmakers will exercise their
judgment” to link their asserted esthetic injuries to BPA’s
ratemaking decisions, they have failed to show that any harm
to the wildlife in the Columbia River Basin is fairly traceable
to BPA’s ratemaking decisions. Id. at 413.
Finally, even were the above insufficient to show why
Petitioners do not have standing to prosecute this suit, there
is no question that causation is lacking after the Supreme
Court’s decision in Brown. The majority disagrees,
reasoning that, because there were two “wholly independent
statutes in Brown,” the HEROES Act and the HEA, BPA’s
ratemaking and funding obligations are “logically and
factually related in a way that the two alternative sources of
authority for the Department’s action in Brown were not.”
The majority sees a difference but does not make a relevant
distinction. In Brown, the Supreme Court’s Article III
32 IDAHO CONSERVATION LEAGUE V. BPA

standing analysis did not depend on whether the HEROES
Act and the HEA are “logically and factually related” to one
another. Rather, the touchstone was the lack of a causal link
between the discretionary decisions the Department made
and other discretionary decisions the plaintiffs wanted the
Department to make, under either and both Acts.
Here, too, no causal link exists. At its heart, Petitioners’
case is based on the claim that BPA’s actions under its
ratemaking authority (i.e., purportedly setting rates too low)
will lead BPA to exercise what Petitioners admit is its
independent statutory authority to decide what projects to
fund in a manner that would prevent Petitioners from
obtaining their desired outcome: an increase in the fish and
wildlife populations in the Columbia River Basin. But under
Brown, because BPA does not allocate any funds during its
rate case and because the projected costs BPA uses to set its
rates are not legally binding (i.e., BPA can still incur
additional wildlife obligations after rates are set), there is an
insufficient causal connection between BPA’s funding and
ratemaking decisions to establish Article III standing.
Petitioners merely speculate whether the “substantive
decisions [BPA] has made regarding [its rates] . . . have a
causal relationship [to] other substantive decisions
[Petitioners] want [BPA] to make” when it exercises its
independent statutory authority to allocate any funds that
have accrued. Brown, 143 S. Ct. at 2354. As the Supreme
Court held—in no uncertain terms—“[t]here is no precedent
for tolerating this sort of causal uncertainty.” 2 Id. True,

2
Given the Supreme Court’s holding in Brown is directly applicable to
this case, our prior caselaw that had employed a more forgiving standard
 IDAHO CONSERVATION LEAGUE V. BPA 33

for establishing causation in environmental suits does not govern our
resolution of this petition for review.
For example, we had held that the Cottonwood Environmental Law
Center had adequately alleged a procedural injury in its suit against the
United States Forest Service (“USFS”) because it contended that the
USFS was required to consult with the United States Fish and Wildlife
Service (“FWS”) under the Endangered Species Act after the FWS
designated stretches of National Forest land as a critical habitat for the
Canada lynx. Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789
F.3d 1075, 1077 (9th Cir. 2015). In Cottonwood, causation was
satisfied because the harm the environmental group alleged implicating
its members’ ability to observe the Canada lynx was the USFS’s failure
to exercise its consultation authority to assess how its forest
management projects might directly affect the lynx populations. Id. at
1081–82. But the claim in Cottonwood is not akin to Petitioners’
challenge here. Rather than directly challenge BPA’s funding
decisions, Petitioners challenge BPA’s ratemaking decision by
speculating about how BPA may or may not exercise its independent
statutory allocation authority at some time in the future. Reliance on
one of BPA’s statutory powers (its ratemaking authority) to bring an
indirect challenge to BPA’s exercise of another, independent statutory
power (its allocation authority) is not analogous to Cottonwood, in
which the petitioners challenged the USFS’s decision not to consult
with the FWS, which consultation could have had a more immediate
and direct impact on the lynx populations.
Similarly, in NEDC, we held that the environmentalists had standing to
challenge BPA’s private agreements with electric utility companies
regarding who owned the “rights to [the] water stored behind [the]
hydroelectric dams on the Columbia River system.” 117 F.3d at
1524. We found that the harm to the fish populations was fairly
traceable to BPA’s storage contracts because BPA’s failure to permit
wildlife groups to use these water storage reservoirs for spawning
grounds directly impacted the claimed water rights of the fish. Id. at
1529–30. But the forgiving causation standard we applied in NEDC in
which the challenged conduct was BPA’s allocation of water in which
the fish breathe does not govern this case in which BPA’s rate case
34 IDAHO CONSERVATION LEAGUE V. BPA

Brown came down after all briefing in this case was in. But
it is the present law and we are bound by it.
*
The bottom line: Petitioners do not have standing to
prosecute this suit. They speculate that BPA’s ratemaking
decisions are causally connected to its allocation decisions—
decisions that all agree are governed by different statutory
provisions. But to accept Petitioners’ theory of standing is
to engage in conjecture as to how different actors in the
causal chain will exercise their independent judgments.
Rather than accept this highly attenuated theory of causation
as the majority does, I would simply dismiss the petition for
review for want of subject matter jurisdiction.
I respectfully dissent.

could raise money that may or may not be allocated to fish, fowl, or
even personnel.
Regardless how we look at the issue, Petitioners’ theory of causation
requires us to speculate about how BPA will exercise its independent
statutory allocation authority to connect the alleged wildlife-related
injury to BPA’s rate setting. This kind of speculation does not permit
us to find that Petitioners have standing to prosecute this suit. Brown,
143 S. Ct. at 2354; Clapper, 568 U.S. at 410–411, 413.