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Case Reference Dated Parties Involved Description/Purpose
1 Tennessee Electric Power vs. 306 U.S. 118-152 1/30/1939 TEP/TVA TEP filed suit against TVA regarding the inability to compete with federal project
Tennessee Valley Authority rates. Court ruled that the sale of Federal power is the sale of Federal property.
The government has discretion as to how to dispose of its property. No ownership rights.
2 Kansas City Power and Light Co. Civ. A. No. 4276-50 6/17/1953 KCPL / DOI IOU's alleged DOI conspiracy to enter into system of contracts to enable SPA
et al vs. McKay Secretary of the to acquire by use of REA funds, generating capacity and transmission which
Interior et al would compete with plantiff IOU's. Court ruled that contracts were valid and did
not violate provisions of the Rural Electrification Act or the Flood Control Act and
found no constitutional limitation to prevent the acquisition of the properties.
SPA would lease transmission facilities to be constructed by rural co-operatives
with REA loads under which SPA would purchase entire output of generating
plants to be constructed by funds advanced to co-operatives by REA. REA was
to loan funds to Co-Ops, Co-Ops were to use money to build G&T, loan contracts
required Co-Ops to enter into leasing agreements (funds recapture), 40 year
leasing terms were negotiated, SPA gains control of facilities for the 40 year
period and agrees to pay all costs of operation, maintenance, repair and
capital replacements, as well as amortization payments on the loans. Both
agreements call for a third power contract which coincides with the other two.
Under power contract SPA agrees to purchase all output of gen. and agrees
to resell power to each of the Co-ops as its members require, at the rate
designated in SPA's rate schedule (approved by FPC).
3 Arizona vs. California et al. 373 U.S. 892, 11 L ed2d 122 6/3/1963 AZ/CA/NV/NM AZ filed suit against CA regarding water rights. Background of water
UT/ US rights arguments and activities. BCP '28 is referenced regularly in this case.
4 Iowa Public Service Company No. 19281 3/5/1969 IPSC/ISCC/BOR IPSC brought action to restrain BOR from selling Federal generation under the
vs. Iowa State Commerce Flood Control Act of 1944 to Iowa Muni's. IPSC filed a complaint with ISCC
commission & BOR stating that the proposed sale of electric power to muni's being served by IPSC
is against state law. ISCC researched and dismissed complaint.
Court ruled that the activities of the federal officials and BOR in offering to
furnish Federal generation by virtue of congressional authority expressed
in the Act are protected by supremacy clause of US constitution from
interference by state regulation or control.
5 Arizona Power Pooling Assn. Nos. 74-1167, 74-1168, 9/24/1975 APPA/APA/Interior Primarily the disposal of surplus Navajo Gen. CAP would not be
Arizona Power Authority et al vs. 74-1173 completed until 1980, but Navajo Gen avail. In 1974. BOR provided
Morton Sec. of Interior / US surplus to SRP,LADWP,APS,TEP,NPC,&SCE. Lion's share to SCE.
9/30/1969 Secretary submitted his recommended plan for CAP to
congress which included "SCE would be a purchaser of a major
portion of the US entitlement to gen and trans. Prior to CAP's needs
BOR argued 1)Preference law was not intended for thermal CAP power
2) disposal of power was at the agency's discretion 3) Congress
approval of plan has the force of law. Court ruled that thermal or
hydro does not matter, it's still federal generation Congress was not presented
material showing preference customers requested and were denied
to serve non-preference, therefore was not knowingly reversing
any preference laws. The Secretary must abide by the preference
clause to the extent the allocation to a preference customer does not
impair the efficiency of the project for irrigation purposes in the
judgement of the secretary. Offered to list based on adequate
back-up capacity and transmission facilities, ie a cascading blackout
would be detrimental to the efficiency of the project for irrigation.
6 City of Santa Clara CA vs. No. C-75-1574 7/23/1976 City/BOR/PGE BOR withdrew CVP federal hydro from City. City cited poor BOR public
Kleppe/Andrus Sec. of Interior/BOR process/communication. PGE intervened as a defendant. City claims
BOR's allocation scheme is legally defective. City wants to buy CVP
power at $5 vs. PGE power at $19. Additional power became
available and SantaClara did not receive any due to an inability to take
power immediately. Provided more non-withdrawable to existing customers
before SantaClara. BOR had a banking agreement with PGE to meet the load growth
needs of the non-withdrawable CVP customers. While BOR's
intent was with preference customers in mind the banking scheme
still allowed for PGE to profit by the sale of Federal power.
7 Arizona Power Authority vs. No. 75-2141 1/17/1977 APA/BOR CRSP marketed to CO/UT/NM/WY. APA and eight other entities
Morton Sec. for Interior, & Armstrong brought suit against the Secretary challenging this geographic
as Commish. Of BOR preference. AZ contended that implementation of the geographic
preference was beyond the Secretary's authority. BOR figured southern states
were being afforded BCP/PDP and a weighting to northern states was
appropriate. Southern states would get allocation, but withdrawable in the
event the northern states required it. Original suit filed 12/1971 decided in favor
of the Secretary 5/1975. Was foreseen that non-preference upper basin entities
would be provided power prior to preference entities in southern states. This
being predicated based on the geographic limitation of the marketing area.
Documentation provides a fair amount of insight and background to the CRSP
legislation and intent of congress with regard to geographic limitations and
preference law. Court decided that based on arguments presented that BOR's
authority to allocate did not violate any statute and therefore the parameters
of the marketing plan to treat regions differently is at the broad discretion of
the secretary and that the court is without jurisdiction to review this case.
8 Fort Mohave Indian Tribe, City of CV 77-4790ALS 3/20/1978 FMIT/Needles et al Question of whether plaintiffs are entitled to continue receiving Federal power.
Needles, Needles Unified School BOR MWD could not use its full 36% of BCP power from 1930 - 1954. LADWP &
District, Needles Community SCE declined to excersise their options to take this power. BOR entered into
Hospital District vs. BOR various contracts of which Citizens Utilities Co. and California Pacific Utilities Co.
were included. Both contracts were to expire 12/31/54 and contained no
provisions for renewal. Cal-Pac provided power to Needles. Both customers
aggresively pursued renewals with little success. Cal-Pac was granted power
but the source was changed to PDP. This served most, but not all of Needles
needs. Beginning in 1977 Cal-Pac began to suppliment with thermal purchases.
1.6MW in winter and 9.6MW in summer. Bought from NPC. In 1975 BOR
sought to re-allocate the power to other entities. FMIT claimed that BOR is the
legal trustee and owe a duty to make the Indian's assets (the utilization of their
ancestral lands) productive. With this duty it is BOR's obligation to provide
preference to tribes in the allocations. Tribes also claim that as a class of
preference customers, and since the Federal govt' is in a fiduciary relationship
with respect to the indians, the duties are to be met by allocating power to the
Tribe. Failure to allocate to them constitues an actionable breach of statutory
duty by the trustee (BOR). Tribes also claim BOR violated NEPA. Tribes also
allege a denial of due process of law. Court found no responsibility to provide
low cost federal hydro to the Tribe and therefore found for BOR on all accounts.
Cited that the plantiffs are considered preference entities, but as long as power
is being allocated to preference entitties judicial review is not applicable. The
authority to allocate among preference entities is at the discretion of BOR.
9 City of Anaheim, Riverside, No. 77-2431 2/20/1979 Ana/Riv/Ban/Interior Cities were denied surplus Navajo Gen. Cities did not offer to buy
Banning CA vs. Kleppe /Interior/BOR surplus Navajo Gen even though they were aware of its existence
10 United States of America vs. No. 79-4507 8/13/1981 US / SMUD US brought action against SMUD seeking judicial interpretation of contract
Sacramento Municipal Utility between the parties, under which the US agreed to sell power to SMUD, and
District SMUD refused to pay a rate increase. Court ruled in favor of US and SMUD
appealed. Court of Appeals held that the contract was not clear regarding
government's right to recover costs of importing power and that interpretation
of the contract would not have allowed recovery of cost of purchased power.
Ambiguously worded contracts should not be interpreted to render them
illegal if legal construction is plausible. In lay terms.. US believed cost recovery
was included in contract and SMUD claims an ambiguous/confusing contract.
District Court granted in favor of US stating that 1) The contract was clear and
unambiguous on its face and thus extrinsic evidence was inadmissible; 2) the
interpretation urged by SMUD would restrict Congress' plenary power to define
the scope of the Central Valley Project and therefore would be illegal. The
Reclamation Act recognizes the inherenet power of the Secretary to purchase
power on "credit" from other sources when conditions prevent hydro-electric
facilities from functioning at capacity. Appeals court sent back to district court
for further proceedings.
11 Southestern Power Administration No. El80-7 9/10/1981 SPA/KUC SEPA needed transmission from KUC to deliver Federal generation to preference
vs. Kentucky Utilites Co. customers. Preference customers were full rquirements customers of KUC.
SEPA proposes that KUC be required to accept delivery of 25MW to be delivered
to the preference customer. Made mention of a billing credit system. Suggested
contractual arrangements would be 1) Contract beween SEPA/Customer for
sale of Federal generation and SEPA's agreement to contract for transmission
to deliver; 2) Contract between SEPA and KUC in which SEPA would take and pay
for transmission service to deliver Federal generation and KUC would agree to
credit customers for Federal generation/transmission received; 3) Contract(s)
between KUC and customer for power supply from KUC that is supplimental
to the Federal generation with billing credits applied for receipt of Federal
generation. Discussed the customers' peaks and differences of SEPA's
capacity credit proposal to what is more likely if applied to actual schedules.
Court found that the transaction proposed by SEPA including the demand charge
credits included as an integral requirment of the transaction, does not constitute
a request for the performance of a transmission service which may be subject of
an order pursuant to the Federal Power Act. Basically if SEPA wanted to buy
traditional transmission they can do so, but they can't force KUC's hand in
agreeing to take power and credit preference customers based on SEPA
defined terms, if at all.
3 years after govt. contracted for sale the Cities raised issue.
Appealed No 79-3803 10/13/1981 BOR was required to submit CAP plan to congress by 9/1969, but
it wasn't until 6/1969 that the Navajo steering committee reached a
decision to build the gen. Court ruled in favor of BOR as the Cities
were in the know as to the surplus and didn't offer to buy.
12 Central Lincoln Peoples' Utlity No. 81-7561 4/6/1982 CLPU/BPA BPA offered to Direct Service Industrial (DSI) customers, mostly a
District et al vs heirarchy of non-firm power that is surplus to project needs. CLPU
Johnson Admin of BPA contends that the allocation of surplus non-firm should be sold according
to preference provisions and only if preference customers needs
are met then something could be provided to DSI's. BPA argues
that the DSI's higher rates subsidize the rates of preference customers
DSI's still needed some resource assurance. Court found that while
BPA's intent was to serve the preference clause it's scheme was
still inconsistent with preference law.
13 Aluminum Co. of America et al No. 82-1071 6/5/1984 ACA/CLPU US Supreme Court reversed and remanded the Ninth Circuit Court's
vs. CLPU previous ruling. The Pacific Northwest Electric Power Planning and
Follow up suit to previous suit Conservation Act does not require DSI power to be interruptible to
meet the non-firm power desires of preference customers.
14 Basin Electric Power Cooperative No. CV-84-138-H 1/11/1985 BEPC/MPSC MPSC challenged BEPC's sale of power to WAPA using BPA transmission.
vs. Montana Public Service Commission WAPA/BPA Claim stated MPSC lacked authority to enforce environmental standards and
WAPA & BPA lakced standing under the Administrative Procedure Act to invalidate the
power transfer. 4/15/1982 BEPC sold to WAPA power from the Antelope Valley
Station generation for use by consumers in CA. 185MW for 5 years. WAPA
entered MOU with BPA for transmission across Montana. MPSC intervened
on grounds that WAPA and BPA violated NEPA by failing to provide a Environmental
Assessment or an Environmental Impact Statement on the power supply contract
or the transmission MOU or the Intertie Access Policy of BPA. The MPSC claims
the transactions will degrade the human environment, adversely effect Montana
ratepayers, and that MPSC has a right under NEPA to comment on the impacts
to the environment. The court found that MPSC lacks the authority and standing
to assert such claims. Stated that the MPSC is not charged with environmental
quality. The claim is denied based on lack of authority to regulate outside of
ratesetting practices and the sale of power to WAPA was prudent.
15 Arvin-Edison Water Storage Nos. 82-2466, 83-0232 3/28/1985 AEWSD/HODEL 11 Irrigation and water storage districts organized under CA law
District vs. Don Hodel challenged decisions made by government concerning CVP. No super-
preference for irrigation districts. All preference customers are
equal. Irrigators are not entitled to PUP rates (if calculated). CVP load
was increased by 102MW and concern over sufficent generation to cover.
Would BOR's aggressive approach to available power impair the
efficiency of project for irrigation purposes? Does it increase rates making the
project less efficient? Basically Western can market what it believes to
be pertinent to the extent it does not impair on the efficiency of the project.
16 Electricities of North Carolina Inc. No. 84-2271 10/10/1985 NC/VA/SC Utilities NC/SC/VA muni's seeking judicial review of final power marketing policy of SEPA
NC/VA/SC Muni's conglomerate aka "ElectriCities" Appeal of original case. SEPA decided to retain pre-existing allocations to
vs. SEPA Geisinger & vs. SEPA customers and to impose a 150-mile radius limitation. Plantiffs argue that
Donald Hodel Secretary of Energy there was improper political influence when developing the plan/policies.
Court sided with SEPA stating that SEPA's actions were nonreviewable because
"committed to agency discretion by law" and that SEPA's policy, even if subject
to judicial review, was not arbitrary, capricious, or an abuse of discretion.
SEPA conducted a public process to determine the marketing policy. ElectriCities
provided comments to the effect that SEPA should allocate to all interested
preference entities proporionately equal allocations. SEPA held two more PCF's
SEPA published that the # of customers would increase from 150 to
204. Included in the increased customers were a few of the Plantiffs. Would
still maintain contracts to existing customers. New customers would only get
power as available from upgrades/expansion and to be shared with existing.
Plantiffs claim that SEPA's preference to existing customers and geographic
limitation of 150-mile radius constitute an abuse of discretion and was in
violation of the Flood Control Act of 1944 which calls for "most widespread use
thereof at lowest possible rates…"
17 ElectriCities of North Carolina Inc. No. C-C-85-384-P 10/30/1985 ElectriCities/SEPA/ ElectriCities again claims that SEPA violated the Flood Control Act of 1944,
vs SEPA et al (Several SEPA GA Pwr/AL Pwr/Gulf Pwr/MS Pwr procedural provisions of the DOE Org.Act and the Administrative Procedure Act
Customers) Claim SEPA made determinations, sales, and allocations of power in certain
contracts withouth first publishing the proposed rule or order and policy. Further
claims the private Defendants violated applicable state laws by their alleged
intentional interference with prospective business relations. Again sited SEPA's
public process with multitude of PCF's related to marketing policy and allocations.
Court dismissed stating that Electricities claims do not meet the requirements
of standing 1) injury in fact, 2) causal connection, and 3) injury capable of redress
In other words by way or SEPA's allocation they weren't injured as caused by
SEPA's actions that were able to be avoided or provided sufficient remedy.
18 Brazos Electric Power Cooperative No. W-84-CA-101 12/30/1985 BEPC/SWPA/ Brazos G&T brought suit challenging actions of SWPA in failing
vs. Southwest Power Administration RCE/TLE to consider merits of its application for allocation of federal power and allocating
& Rayburn Country Elec. Coop. / to someone else (RCE/TLEC). Allocated to RCE/TLEC so that the
Tex-La Elec. Coop. Co-op's could wheel the power into Ercot for SWPA to SWPA's preference
customers. Brazo's didn't participate in SWPA's public allocation
process. Not till after allocations were made and wheeling/service
agreements were executed did Brazos raise the issue. Brazos denied
by courts stating that one does not obtain an entitlement to federal
power, yet only a preference in allocation. Request for allocation
was grossly past the public process and only after final allocations made.
Ok to arrange for transmission over non-preference entities to be
able to deliver to preference entities. Either Western or its customers.
19 Trinity County Public Utilities Dist. No. 85-1874 1/23/1986 TCPUD / WAPA Appeal of summary judgement. First preference customers have first preference
et al vs. John Harrington et al and to energy and rates based on federal hydro project as a whole, rather than from
NCPA,SMUD Intervenors two plants. Appeals court held that 1) customers had first preference rights to
energy and rates based on project as a whole, rather than from two plants, and
2) cost of power imported into project area were properly includable in rates
charged to first preference customers. Purchased power that is reasonably
considered a feature of the project can be included in whole project rate base.
WAPA gave notice of a project rate adjustment, Plantiffs objected to the proposed
rates, the FERC approved WAPA's proposed rates for a five year period. Two
approval acts in play, one for CVP the other to include Trinity and New Molones
into CVP. Assume original CVP customer rates going up with inclusion of new
generation. Original customers don't want to integrate costs.
20 City of South Sioux City, City of Nos. 85-1757, 85-1895 6/5/1986 Cities/WAPA The Cities were denied allocations based on untimely applications.
Randolf, City of Madison, City of Claim WAPA's notice of the informal allocation proceedings were not
Wakefield, Municipal Corp. of sufficient in communicating the need for a timely application. WAPA
Nebraska vs. WAPA replied that even if their applications were timely they weren't eligible
because they were already receiving fed power indirectly through
Neb. Pub Util. Dist. Their marketing plan disqualified any entity which
was already receiving the benefits of low-cost federal power either directly
or indirectly from WAPA. Court held that WAPA did provided insufficient
notice, however WAPA was still in it's authority to follow the published
plan which made the Cities ineligible. Therefore no allocation granted.
21 Salt Lake City et al (Utah Power & Civil No. C86-1000G 10/19/1987 UP&L et al WAPA marketing the CRSP power in the '86-'89 timeframe. UP&L et al claim
Light and collective Utah muni's vs. WAPA/CREDA/ WAPA violated jurisdictional provisions of the Administrative Procedure Act
WAPA et al (CREDA / CCPS) Coalition of Consumer They sought judicial review of WAPA's distribution of the Criteria which stated
Owned Power Systems no CRSP power would be allocated to UP&L or to any of the 143 muni's, counties
(CCPS) and towns located in Utah and Wyoming. Also challenged some of WAPA's
operations practices and WAPA's failure to conduct an environmental impact
study in the development of the Criteria. Claim WAPA has acted in a manner
that is arbitrary, capricious, and abuse of discretion, and otherwise not in
accordance with law. CREDA intervened as defendant. UP&L was resolved to
act on behalf of the 143 Utah/Wyoming muni's to acquire CRSP power and to
provide utility services at cost. UP&L was to take reciept of power and deliver
it to the participating preference muni's. WAPA responded to UP&L's application
stating 1) WAPA did not consider UP&L a preference entity under applicable law
2) WAPA did not believe that the DOE Act statement of purpose overrode or
changed the preference requirements that UP&L claims 3) that Federal policy
of charging lowest possible rates did not mean that WAPA must take UP&L higher
price bid. WAPA's position was that an allocation to UP&L whether acting for
itself or on behalf of others would be an allocation to a non-preference entity.
Court found that Flood Control Act does not provide law to apply to WAPA's
decisions regarding UP&L's preference status, or to WAPA's decisions regarding
allocation of power among existing and new customers. Quoted "statute breathe
discretion at every pore" in the context of WAPA's allocation abilities among
preference entities. WAPA also denied UP&L's application made on behalf
of the muni's because the muni's were not entitled to the same amount of
preference as muni's with their own distribution systems or otherwise demonstrated
"utility responsibility". UP&L asserted that WAPA overextended it's authorities
by buying and integrating thermal power with the hydro. Court found that it is
not unlawful for WAPA to do so.