Nw Energy Coalition v. Bonneville Power Administration
CourtCourt of Appeals for the Ninth Circuit
Date FiledOctober 21, 2026
Docket25-4278
StatusUnpublished
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Full Opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 21 2026
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NW ENERGY COALITION; IDAHO No. 25-4278
CONSERVATION LEAGUE; MONTANA Agency No. Bonneville Power
ENVIRONMENTAL INFORMATION Administration
CENTER; SIERRA CLUB; OREGON
CITIZENS’ UTILITY BOARD, MEMORANDUM*
Petitioners,
v.
BONNEVILLE POWER
ADMINISTRATION,
Respondent,
----------------------------------------
NORTHWEST REQUIREMENTS
UTILITIES; PUBLIC POWER COUNCIL
INC; ALLIANCE OF WESTERN
ENERGY CONSUMERS; PACIFIC
NORTHWEST GENERATING
COOPERATIVE; SOUTHWEST POWER
POOL, INC.,
Intervenors - Pending.
On Petition for Review of an Order of the
Bonneville Power Administration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Argued and Submitted August 6, 2026
Seattle, Washington
Before: McKEOWN, N.R. SMITH, and CHRISTEN, Circuit Judges;
Dissent by Judge CHRISTEN.
Petitioners NW Energy Coalition, Idaho Conservation League, Montana
Environmental Information Center, Oregon Citizens’ Utility Board, and Sierra
Club seek review of the Day-Ahead Market Policy and Record of Decision by the
Bonneville Power Administration (“BPA”), indicating BPA’s desire to join
Markets+—a yet-to-be-developed organized market to trade power on a day-ahead
basis. We deny the petition for lack of jurisdiction.
Petitioners lack standing and their claims are not ripe for review. Twitter,
Inc. v. Paxton, 56 F.4th 1170, 1173 (9th Cir. 2022) (“The constitutional component
of ripeness is synonymous with the injury-in-fact prong of the standing inquiry.”
(citation modified)). Markets+ does not exist yet; BPA has not formally joined it;
and subsequent phases remain prior to BPA’s potential participation in Markets+,
including rate and tariff proceedings to determine cost allocations and the terms
and conditions for transmission service.1 We cannot speculate on what injuries
1
Our dissenting colleague ignores all of these facts and argues that Petitioners
have established that they will suffer injury by increasing power costs and risking
harm to salmon. Dissent at 2. The record does not support this conclusion. The
BPA’s Day-Ahead Market Policy was not a final decision to join Markets+. To the
contrary, it merely established an intent “to pursue participation.” This statement
of a potential future change (which includes the ultimate “decision [whether] to
2 25-4278
Petitioners would face once Markets+ is up and running—particularly in view of
the uncertainty over whether BPA will even join Markets+ in the end. Because
Petitioners’ claims depend on a “highly attenuated chain of possibilities,” they do
“not satisfy the requirement that threatened injury must be certainly impending.”
Clapper v. Amnesty Int’l USA, 568 U.S. 398, 410 (2013).
DENIED.
become a market participant”) does not satisfy Article III’s injury-in-fact
requirement, because it depends on a chain of contingent future events.
3 25-4278
FILED
NW Energy Coalition, et al. v. Bonneville Power Administration, No. 25-4278
OCT 21 2026
CHRISTEN, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In May 2025, after a two-year deliberative process, the Bonneville Power
Administration (BPA) issued its Day-Ahead Market Policy, announcing its “final”
decision to stakeholders that it will join the Markets+ day-ahead market and
withdraw from the Western Energy Imbalance Market (WEIM). BPA described its
decision as “momentous,” contractually committed $40 million toward the project,
and is now moving ahead with implementing its policy. The record shows that
BPA expects to be fully online with Markets+ by 2028. Petitioners agree that
BPA’s decision to join Markets+ is a fundamental change in BPA’s planned
operations. Petitioners challenged that decision before our court, pointing to BPA’s
own projections that joining Markets+ will increase power costs, and evidence that
the project risks harm to salmon in the Columbia River.
In spite of this backdrop, the court’s memorandum disposition concludes that
Petitioners lack standing. The court characterizes Petitioners’ claims as premature
and describes their feared injuries as speculative. The memorandum disposition’s
premise is that several steps must be completed before BPA actually begins to
participate in Markets+, but none of the steps in the implementation process
suggest that BPA will revisit its decision. Because the law does not require that
litigants wait until they have actually incurred irreversible injury before they are
1
allowed access to our courts, and because Petitioners have certainly alleged
injuries that are imminent and non-speculative, I respectfully dissent.
Petitioners argue that BPA’s decision to join Markets+ has staked out a
course that will cause them injury by: (i) increasing power costs; and (ii) risking
harm to salmon. Both injuries are plainly cognizable. It is beyond question that
“economic injury is generally a legally protected interest.” Cent. Ariz. Water
Conservation Dist. v. U.S. EPA, 990 F.2d 1531, 1537 (9th Cir. 1993). Indeed, we
have repeatedly found standing where petitioners challenging BPA decisions show
they “will suffer the burden of over-inflated power rates.” Ass’n of Pub. Agency
Customers v. Bonneville Power Admin, 733 F.3d 939, 950 (9th Cir. 2013);
Aluminum Co. of Am. v. Bonneville Power Admin., 903 F.2d 585, 590 (9th Cir.
1989). Here, BPA’s own models forecast that BPA’s decision to join Markets+,
rather than a different day-ahead market, will increase costs by roughly $400
million per year. Evidence offered by Petitioners also strongly indicates that BPA’s
decision to join Markets+ will increase power costs for the Northwest region and
that these costs will be passed on to ratepayers. In my view, there is no room to
argue that Petitioners failed to show concrete and imminent economic injury.
We have also held that risks of harm to fish populations suffice to establish
standing. Idaho Conservation League v. Bonneville Power Admin., 83 F.4th 1182,
1188 (9th Cir. 2023); see also Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 943
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(9th Cir. 2021). Petitioners cite evidence in the record showing that BPA’s decision
will increase the generation of hydropower and that “[c]onducting hydroelectric
operations to meet the needs of a new energy market will likely put further strain
on the already extremely vulnerable salmon and steelhead” affected by
hydroelectric dams. Petitioners’ allegations are not conclusory or inadequately
supported. And under our precedent, Petitioners are entitled to have their day in
court to prove their claims.
The court’s memorandum disposition dismisses Petitioners’ asserted injuries
as dependent upon a “highly attenuated chain of possibilities.” Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 410 (2013). According to the memorandum disposition,
there is “uncertainty over whether BPA will even join Markets+ in the end.” I am
unable to square that assertion with the record. In support of its conclusion, the
court points only to the need to undertake rate and tariff proceedings to determine
cost allocations and the terms and conditions for transmission service. In other
words, the court points to steps BPA plans to take to implement its final policy
decision to join Markets+, not to any evidence that there is reason to suspect BPA
will reconsider, change course, or back out of its commitment and forfeit $40
million. Respectfully, it is the court’s standing analysis that engages in
speculation.
3
A petitioner “need not have already suffered” injury “to establish standing.”
See California v. Azar, 911 F.3d 558, 572 (9th Cir. 2018). Instead, “[a]n allegation
of future injury may suffice if . . . there is a ‘substantial risk that the harm will
occur.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (citation
modified). When analyzing the risk of future harm, “[a] causal chain does not fail
simply because it has several ‘links,’” so long as “those links are not hypothetical
or tenuous.” California v. Azar, 911 F.3d at 571-72 (citation modified).
Contrary to the memorandum disposition’s characterization, the prospect of
BPA joining Markets+ is not a remote, hypothetical, or tenuous contingency. The
Day-Ahead Market Policy purports to “memorialize[] [BPA’s] final direction” to
“pursue participation in a day-ahead market and specifically pursue participation in
Markets+.” In BPA’s own words, the decision “conclude[d] the policy-
development phase” of BPA’s process and “enable[d]” BPA to “move forward with
market implementation.” Indeed, according to BPA, the Policy “establishes the
scope for future implementation decisions related to Markets+,” as BPA
“progresses through implementation of day-ahead market participation in
Markets+.” To that end, BPA has already made a contractual commitment of $40
million to the development of Markets+, and will be liable up to that amount if it
withdraws from its agreement. This financial consequence is compelling evidence
that BPA will be met with strong resistance if it does not implement its policy
4
choice because BPA is a self-funded agency that must recover its costs through the
rates it charges its customers. See 16 U.S.C. § 839(4); Ass’n of Pub. Agency
Customers v. Bonneville Power Admin., 126 F.3d 1158, 1163-66 (9th Cir. 1997).
The implementation phases for joining Markets+ are not distant. In a
December 2025 presentation to stakeholders, BPA expressly outlined its two-year
plan to “go live” with Markets+ by October 2028. BPA laid out a timeline for
initiating rate cases and tariff proceedings, amending Provider of Choice
agreements, negotiating its “implementation agreements” with the operator of
Markets+, and departing from the market platform in which it currently
participates, the WEIM.
The consequences of BPA’s decision to join Markets+ are concrete and
imminent. BPA itself expressly recognized that its decision to join Markets+ “will
play a critical role in the energy and capacity market landscape for the region,
and . . . will have direct impact on a number of other entities’ decisions regarding
day-ahead market participation.” BPA also acknowledged that its policy directive
“to join Markets+ impacts all generation and load in the Bonneville [Balancing
Authority Area] to some degree.” Even before BPA goes online with Markets+,
the record evidence shows that BPA’s decision to exit the WEIM will result in
immediate costs to ratepayers.
5
BPA has made its final decision to join Markets+. Petitioners’ evidence
shows that BPA’s decision creates a substantial risk of economic and
environmental harm to Petitioners. See Susan B. Anthony, 573 U.S. at 148. To
establish standing, nothing more is required.
For the foregoing reasons, I respectfully dissent.
6