On August 12, 2025, the Ninth Circuit Court of Appeals issued an order granting requests by the Public Power Council (“PPC”), Northwest Requirements Utilities (“NRU”), and the Alliance of Western Energy Consumers (“AWEC”) to voluntarily dismiss their respective appeals of the Bonneville Power Administration’s (“BPA”) decision to enter into an agreement affecting the costs and operation of the Columbia River System hydroelectric dams.
In December 2023, BPA entered into a Memorandum of Understanding with the National Wildlife Federation, the states of Oregon and Washington, and the Nez Perce, Umatilla, Warm Springs, and Yakama Tribes. The Memorandum of Understanding committed BPA to undertake substantial costs and adopt operational changes related to the Columbia River System. It had been developed without input from, or the involvement or awareness of, the consumer-owned utilities that are entitled to take power from the Columbia River System under federal law, commonly referred to as preference customers. These public power entities are also responsible for bearing the costs of BPA’s operation of the Columbia River System – including the costs BPA had committed to in the Memorandum of Understanding.
PPC, NRU, and AWEC filed appeals challenging BPA’s decision to enter into a Memorandum of Understanding without any process involving its affected preference customers. As associations representing entities that rely on and pay for power from the dams, PPC, NRU, and AWEC argued that they had been wrongfully excluded from the decision-making process. Federal law required BPA to include the public when undertaking major decisions.
The Ninth Circuit Court of Appeals consolidated the appeals filed by PPC, NRU, and AWEC, and the parties entered mediation. Before the conclusion of any formal process – mediation or litigation – on June 24, 2025, BPA officially withdrew from the Memorandum of Understanding at the direction of the Trump Administration. On July 24, 2025, PPC, NRU, and AWEC filed motions seeking to voluntarily dismiss their claims.
While the appeal did not end in a formal settlement, it was not just BPA’s withdrawal from the Memorandum of Understanding that led PPC, NRU, and AWEC to request dismissal. BPA agreed to include a provision in its 2028 contracts with public-power customers that provides some flexibility if BPA experiences a major loss of generation during the 20-year contract term. BPA also committed to a more robust public engagement process to ensure public power entities are not left out of future significant decisions by the agency. According to its website, it will “commence a public process to review the Policy for Public Involvement and update as necessary the procedures that apply to the development of major regional power policies pursuant to section 4(g) the Northwest Power Act” by February 6, 2026.
Sanger Greene PC represented PPC and NRU in the appeal. PPC is an association that represents municipal utilities, public or people’s utility districts, and electric cooperatives in Washington, Oregon, Idaho, Montana, Nevada, Utah, and Wyoming entitled under federal law to receive power from BPA. NRU is an association representing the interests of 56 mostly small, mostly rural retail electric utilities and one generation & transmission cooperative, all of which are entitled under federal law to receive power from BPA.
Disclaimer
These materials are intended to as informational and are not to be considered legal advice or legal opinion, nor do they create a lawyer-client relationship. Information included about previous case results does not assure a similar future result.
