United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2007 Decided July 25, 2008
No. 06-1212
KLAMATH WATER USERS ASSOCIATION,
PETITIONER
v.
FEDERAL ENERGY REGULATORY COMMISSION,
RESPONDENT
PACIFICORP, ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Energy Regulatory Commission
George K. Kiely argued the cause for petitioner. On the
briefs was Edward A. Finklea.
Samuel Soopper, Attorney, Federal Energy Regulatory
Commission, argued the cause for respondent. On the brief
were John S. Moot, General Counsel, Robert H. Solomon,
Solicitor, and Jeffery S. Dennis, Attorney.
Sam Kalen, Michael A. Swiger, Charles R. Sensiba, Thomas
P. Schlosser, Glen H. Spain, Howard M. Crystal, and Joshua
Randolph Stebbins were on the brief for intervenors in support
of respondent.
2
Before: HENDERSON, GARLAND, and BROWN, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: For nearly one hundred years, the
operator of the Link River Dam provided low-cost electric
power for irrigation use in and around the Klamath River Basin
in southern Oregon and northern California, pursuant to a
contract first executed in 1917 and later extended in connection
with the licensing of the dam. In 2006, the Federal Energy
Regulatory Commission (FERC) decided that an annual license
issued to the dam’s operator would not include the terms of that
contract. The Klamath Water Users Association (KWUA)
challenges that decision as error.
We cannot reach the merits of KWUA’s challenge because
it has not shown that the injury to its members would be
redressed by a favorable ruling from this court. California and
Oregon have independent authority to fix the rates charged by
the operator to its retail customers, and each has already held
that it will not be bound by the contract rates. KWUA has
offered no reason to believe that a decision requiring FERC to
include the contract in the operator’s annual license would affect
those state decisions.
I
KWUA is a nonprofit corporation comprising irrigation
districts and agricultural businesses in the Klamath River Basin.
As part of the Department of the Interior’s Klamath Irrigation
Project, KWUA members receive water from the Link River
Dam, which was constructed by PacifiCorp’s predecessor
(hereinafter “PacifiCorp”) pursuant to a 1917 contract with the
United States. That contract had a fifty-year term and provided
3
that PacifiCorp would convey the dam to the United States, but
that it would retain the right to operate the dam in exchange for
furnishing water and low-cost electric power to the United
States and the irrigators.
In the 1950s, FERC’s predecessor, the Federal Power
Commission (FPC), determined that PacifiCorp’s Klamath
Hydroelectric Project (which includes the Link River Dam) was
subject to its licensing authority and issued PacifiCorp a fifty-
year license. In the licensing order, the FPC directed PacifiCorp
to file the 1917 contract, either with amendments or as a new
contract with substantially the same terms, to cover at least the
same fifty-year period as the license. In re California Oregon
Power Co., 13 F.P.C. 1, 1954 WL 47779, at *8 (1954). The
FPC also found, in accordance with section 10(e) of the Federal
Power Act (FPA), 16 U.S.C. § 803(e), that the consideration and
benefits provided in the 1917 contract were reasonable and
adequate to compensate the United States for PacifiCorp’s use
of the dam. Id. at *9.
In January 1956, pursuant to the FPC’s order, PacifiCorp
filed a revised and extended version of the 1917 contract. Under
the revised contract, PacifiCorp agreed to provide electric power
at fixed rates to the United States and customers of the Klamath
Irrigation Project, for use in pumping irrigation water. The 1956
contract stated that it was for a term of fifty years, effective from
the date it was approved by both the Oregon and California
public utility commissions. The states’ approval yielded an
expiration date of April 16, 2006. In February 1956, the FPC
issued an order finding that the contract adequately compensated
the United States for use of the dam, amending PacifiCorp’s
license to reflect the 1956 contract, and changing the license’s
effective date to make its term fall within that of the contract.
In re California Oregon Power Co., 15 F.P.C. 14 (1956). The
license was set to expire on February 28, 2006.
4
In 2004, anticipating the February 2006 expiration of its
license, PacifiCorp filed an application with FERC for a new
license to continue operating the Klamath Hydroelectric Project.
While that application was pending, PacifiCorp was entitled to
annual licenses pursuant to section 15(a)(1) of the FPA, which
provides that “the commission shall issue from year to year an
annual license to the then licensee under the terms and
conditions of the existing license until the property is taken over
or a new license is issued.” 16 U.S.C. § 808(a)(1). In
September 2005, the Interior Department petitioned FERC for
a declaratory ruling that any annual license issued to PacifiCorp
would require that the 1956 contract, including the rates for
electric power specified in that contract, continue in effect.
Interior contended that the FPC had made the terms of the 1956
contract “an integral part of the license.” PacifiCorp, 114
F.E.R.C. ¶ 61,051, at 61,141 (2006) (“PacifiCorp Order”)
(internal quotation marks omitted). Thus, according to Interior,
the contract’s terms were also terms and conditions of
PacifiCorp’s existing license that had to be part of any annual
license granted to PacifiCorp pursuant to FPA section 15(a)(1).
KWUA intervened in the FERC proceedings in support of
Interior.
On January 20, 2006, FERC denied Interior’s petition. It
assumed without deciding that the 1956 contract was a term of
PacifiCorp’s license, but held that the contract expired by its
own terms on April 16, 2006. Hence, FERC ruled, “any annual
license for the project following the license expiration date of
February 28, 2006, will not include the terms of the 1956
Contract beyond April 16, 2006.” Id. at 61,142. In March 2006,
FERC issued PacifiCorp an annual license for the continued
operation of the Klamath Hydroelectric Project.
While the FERC proceedings were ongoing, the Oregon
Public Utility Commission (OPUC) and California Public
5
Utilities Commission (CPUC) initiated proceedings to set
electric rates for the Klamath Irrigation Project’s farmers and
irrigators. In June 2005, the Oregon commission denied
PacifiCorp’s motion to delay action pending FERC’s ruling on
Interior’s petition, holding that it, and not FERC, had
jurisdiction over retail rates and that it must conduct an
independent review of the contract rates even if FERC were to
extend those rates in PacifiCorp’s annual licenses. In re Pacific
Power & Light, No. UE 171, at 5, 2005 WL 1529760 (O.P.U.C.
June 6, 2005) (Order No. 05-726). In April 2006, OPUC
determined that the 1956 contract would expire on April 16,
2006, and it decided to shift irrigation customers to full general
irrigation tariff rates over several years. In re Pacific Power &
Light, No. UE 170, 2006 WL 1675377 (O.P.U.C. Apr. 12, 2006)
(Order No. 06-172). The California commission similarly
decided to transition irrigation customers to full tariff rates
following the April 16, 2006, expiration of the contract. In re
Application of PacifiCorp, No. U 901-E, 2006 WL 1049355
(C.P.U.C. Apr. 13, 2006) (Decision No. 06-04-034).
On April 20, 2006, FERC denied Interior’s petition for
rehearing and affirmed that the 1956 contract terms would not
be included in annual licenses issued to PacifiCorp. PacifiCorp,
115 F.E.R.C. ¶ 61,075 (2006) (“PacifiCorp Order Denying
Rehearing”). FERC pointed out that “the 1956 contract became
effective, not upon any approval by this Commission, but upon
approval by California and Oregon.” Id. at 61,226. This
showed, FERC said, that it had “never purported to approve or
fix [PacifiCorp’s] retail irrigation rates, but only found that the
1956 Contract adequately compensate[d] the United States for
the use of its property.” Id. And it noted that both Oregon and
California had recently elected to exercise their independent
authority to modify PacifiCorp’s retail electric rates. Id.
6
The Interior Department did not petition this court for
review of FERC’s decision, but KWUA did. KWUA contends
that its members face increases in their power costs of more than
1000% as a result of FERC’s decision. KWUA Br. 5. Adopting
Interior’s argument before the Commission, KWUA maintains
that the electric power rates contained in the 1956 contract were
an express condition of PacifiCorp’s license and that FPA
section 15(a)(1) requires FERC to issue annual licenses for the
project that include those rates. We do not reach the merits of
this argument because KWUA has not demonstrated that it has
standing to pursue it.
II
In its opening brief, KWUA claimed standing on the ground
that it had been an intervenor in the FERC proceedings. KWUA
Br. 6. But “[p]etitioners do not have a right to seek court review
of administrative proceedings merely because they participated
in them. Unlike an agency, our authority to hear a case is
limited by the standing requirements of the United States
Constitution.” Competitive Enter. Inst. v. U.S. Dep’t of Transp.,
856 F.2d 1563, 1565 (D.C. Cir. 1988). Those “irreducible
constitutional minimum” requirements are that the petitioner
suffered an injury-in-fact, that the injury is fairly traceable
(causally connected) to the challenged agency action, and that
it is likely as opposed to merely speculative that the injury will
be redressed by a favorable decision of the court. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see Bennett
v. Spear, 520 U.S. 154, 167 (1997). Because we agree with
FERC that KWUA has failed to demonstrate redressability, we
do not address the other standing requirements.
FERC argues that, “to the extent [KWUA] claim[s] injury
from the loss of the favorable rates for retail electric power
contained in the 1956 Contract, that injury cannot be redressed
7
by a favorable decision of this Court.” FERC Br. 12. According
to FERC, the rates that PacifiCorp charges KWUA members are
retail rates, which are regulated by the states and over which the
Commission has no jurisdiction. FERC Br. 17.1 This is so,
FERC says, even if the Commission makes particular rates a
condition of a license; indeed, the 1956 contract itself stated that
it did not become effective until it was approved by the state
public utility commissions. FERC maintains that the
“Commission has never purported to approve or fix the
licensee’s retail irrigation rates, but only found that the 1956
Contract adequately compensates the United States for the use
of its property.” PacifiCorp Order Denying Rehearing, 115
F.E.R.C. at 61,226.
“Because the Commission lacks jurisdiction to approve or
modify PacifiCorp’s retail rates,” FERC insists that KWUA
“cannot make the required showing that a decision from this
Court directing the Commission to include the 1956 Contract in
the annual license” will redress KWUA’s injury. FERC Br. 18.
To the contrary, it argues that California and Oregon have
“undisputed independent authority to set PacifiCorp’s retail
rates” irrespective of such a license condition, and notes that
both states -- as recounted in Part I -- have already set new,
higher retail rates for PacifiCorp’s service to its irrigation
customers. FERC Br. 18; see also PacifiCorp Order Denying
Rehearing, 115 F.E.R.C. at 61,226 (“[California] and Oregon
have elected to exercise [their authority to modify PacifiCorp’s
retail electric rates] based on an April 16, 2006 expiration date
for the 1956 Contract.”).
1
See PacifiCorp Order, 114 F.E.R.C. at 61,142 (“[T]his
Commission clearly has no jurisdiction over PacifiCorp’s retail
rates.”). See generally 16 U.S.C. § 824; New York v. FERC, 535 U.S.
1, 16-17 (2002); FPC v. Conway Corp., 426 U.S. 271, 276-77 (1976).
8
In a case like this, in which relief for the petitioner depends
on actions by a third party not before the court, the petitioner
must demonstrate that a favorable decision would create “a
significant increase in the likelihood that the plaintiff would
obtain relief that directly redresses the injury suffered.” Utah v.
Evans, 536 U.S. 452, 464 (2002) (citing Federal Election
Comm’n v. Akins, 524 U.S. 11, 25 (1998); Bennett, 520 U.S. at
169-71; and Metropolitan Wash. Airports Auth. v. Citizens for
Abatement of Aircraft Noise, Inc., 501 U.S. 252, 264-65 (1991)).
In US Ecology, Inc. v. United States Department of the Interior,
231 F.3d 20 (D.C. Cir. 2000), for example, the plaintiff
company -- which sought to build a radioactive waste disposal
facility on federal land in California -- sued the Interior
Department for refusing to transfer the land to the state. In
analyzing the plaintiff’s standing, we noted that even if
Interior’s refusal were wrongful, the plaintiff’s “alleged injury
would not be redressable unless and until California accepted
transfer of the disputed land and elected to proceed with the . . .
project.” Id. at 21. Because “[o]n the record at hand, [the
plaintiff had] no grounds upon which to claim that California
[would] follow these courses,” we dismissed the case for want
of standing. Id.
There will, of course, be occasions on which an order
directed to a party before the court will significantly increase the
chances of favorable action by a non-party. For example, in
National Parks Conservation Ass’n v. Manson, 414 F.3d 1 (D.C.
Cir. 2005), we held that the petitioners, who were injured by
Montana’s decision to issue a permit for a coal-fired plant near
Yellowstone National Park, had standing to challenge an Interior
Department letter stating that the plant would not adversely
affect the Park. Notwithstanding that Montana’s Department of
Environmental Quality “ha[d] discretionary authority to conduct
an independent evaluation when it receive[d] a federal adverse
impact report,” there was evidence that a “district court order
9
setting aside Interior’s letter . . . would significantly affect
[Montana’s] ongoing proceedings.” Id. at 6-7. That, we said,
was “enough to satisfy redressability.” Id. at 7.
But KWUA has offered no reason to believe that a decision
requiring FERC to include the 1956 contract in PacifiCorp’s
annual licenses would have such an effect on the retail rate
decisions of California and Oregon. As we have noted, both
states’ utility commissions have already set new retail rates for
PacifiCorp’s irrigation customers. See In re Application of
PacifiCorp, No. U 901-E (CPUC); In re Pacific Power & Light,
No. UE 170 (OPUC). And KWUA has not suggested any basis
for concluding that either state would change its rates if FERC
included the contract’s terms in the license. At the time the
California commission was making its rate determination, it was
“cognizant that FERC [was] considering a rehearing of its
decision not to extend the 1956 Contract as part of renewing
PacifiCorp’s Klamath River hydroelectric licenses.” In re
Application of PacifiCorp, No. U 901-E, at 14 n.15. CPUC
nonetheless went ahead and raised the rates. The Oregon
commission’s rejection of the import of FERC’s decision was
even more decisive. In the course of denying PacifiCorp’s
motion to delay a decision pending FERC’s ruling on
PacifiCorp’s relicensing, OPUC declared: “[T]his Commission,
not FERC, has jurisdiction over rates charged by PacifiCorp to
its Oregon retail customers. Consequently, even if FERC
extends the [1956] Contract rates, such action cannot relieve this
Commission of the duty to review those rates . . . .” In re
Pacific Power & Light, No. UE 171, at 5.2
2
See also In re Pacific Power & Light, No. UE 171, at 4
(“PacifiCorp’s request implicitly assumes that [OPUC] must first
determine that the contract rates have expired before it can examine
the underlying question as to what rates these irrigation customers
should pay. No such requirement exists. Th[is] Commission’s
10
In response to this redressability problem, which FERC
raised in its brief, KWUA’s reply brief said nothing at all. That
failure to respond is dispositive, as the burden of establishing
redressability falls upon the petitioner. See Miami Bldg. &
Constr. Trades Council v. Secretary of Def., 493 F.3d 201, 205-
07 (D.C. Cir. 2007); Sierra Club v. EPA, 292 F.3d 895, 899
(D.C. Cir. 2002). In the absence of evidence or argument
showing that a favorable decision would redress KWUA’s
injury, we cannot consider its petition for review.3
ratemaking power constitutes the broadest delegation of legislative
authority. Utilities and customers cannot limit this power by private
contract. . . . [W]e have the continuing authority and obligation to
review the appropriateness of the rates contained in those contracts.
Thus, regardless of the expiration term of either contract, this
Commission has the duty to examine the rates contained therein and,
upon a proper showing, modify them.” (citations omitted)).
3
At oral argument, KWUA did eventually suggest two points in
support of redressability. But those suggestions were raised too late
for our consideration. See, e.g., Transportation Workers Union of Am.
v. Transportation Sec. Admin., 492 F.3d 471, 476 (D.C. Cir. 2007)
(holding that a claim related to the causation requirement of standing,
first offered at oral argument, “comes too late”); Ark Las Vegas Rest.
Corp. v. NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003) (holding that
contentions first raised at oral argument are waived). In any event,
KWUA’s suggestions are insufficient to satisfy its burden. First,
KWUA suggested that a decision by FERC would effectively preempt
state authority, so that if this court directed FERC to make the contract
rates a term in PacifiCorp’s annual licenses, the states could not alter
those rates. See Oral Arg. Recording at 9:45. KWUA proffered no
case law in support of that assertion, citing instead a statement by
counsel for its opponent -- PacifiCorp -- during the Oregon hearings.
PacifiCorp now disagrees with the content of that statement, and both
Oregon and FERC have held to the contrary. See In re Pacific Power
& Light, No. UE 171, at 5; PacifiCorp Order, 114 F.E.R.C. at 61,142
& n.51. Second, KWUA suggested that the state commissions, in
11
III
Because KWUA has not demonstrated that a favorable
decision by this court would redress its injury, it lacks standing
to challenge FERC’s order. Accordingly, we dismiss KWUA’s
petition for want of jurisdiction.
Dismissed.
accordance with their state laws, would respect a private contract
between PacifiCorp and KWUA concerning retail power rates. Oral
Arg. Recording at 4:27, 28:50. KWUA pointed to nothing to support
that proposition, and, again, the states’ actual decisions strongly
suggest that KWUA is incorrect. See, e.g., In re Pacific Power &
Light, No. UE 170, at 8 (“[T]his Commission’s broad ratemaking
power cannot be limited by private contract.”); supra note 2.