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.