Pg&e v. Ferc ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC GAS AND ELECTRIC 
COMPANY,
Petitioner,
NORTHERN CALIFORNIA POWER
AGENCY; WILLIAMS POWER
COMPANY INC.; POWEREX
CORPORATION; RELIANT ENERGY
POWER GENERATION, INC.; DUKE
ENERGY NORTH AMERICA, LLC,
DUKE ENERGY TRADING AND
MARKETING, LLC, (COLLECTIVELY, No. 04-70635
“DUKE ENERGY”); CALIFORNIA
ELECTRICTY OVERSIGHT BOARD; FERC No.
DYNEGY POWER MARKETING, INC.,  EL00-746-000
EL SEGUNDO POWER LLC, LONG through -003
BEACH GENERATION LLC, CABRILLO OPINION
POWER I LLC, AND CABRILLO
POWER II LLC (COLLECTIVELY,
“DYNEGY”); M-S-R PUBLIC POWER
AGENCY; THE MODESTO IRRIGATION
DISTRICT; CITY OF SANTA CLARA,
CALIFORNIA; THE MODESTO
IRRIGATION DISTRICT; CITY OF
REDDING, CALIFORNIA; AVISTA
ENERGY INC.; PUGET SOUND
ENERGY, INC.,
Intervenors,

11477
11478 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
v. 
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent, 
CALIFORNIA INDEPENDENT SYSTEM
OPERATOR CORPORATION,
Intervenor.

CALIFORNIA INDEPENDENT SYSTEM 
OPERATOR CORPORATION,
Petitioner,
DUKE ENERGY NORTH AMERICA,
LLC, DUKE ENERGY TRADING AND No. 04-71613

MARKETING, LLC, (COLLECTIVELY, FERC No.
“DUKE ENERGY”), ER03-746-001 and
Intervenor, ER03-746-002
v.
FEDERAL ENERGY REGULATORY
COMMISSION,
Respondent-Appellee.

On Petition for Review of Orders of the
Federal Energy Regulatory Commission
Argued November 14, 2005
Submission Deferred November 16, 2005
Resubmitted for Decision September 18, 2006
San Francisco, California
Filed September 18, 2006
Before: A. Wallace Tashima, Sidney R. Thomas, and
Consuelo M. Callahan, Circuit Judges.
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11479
Opinion by Judge Thomas
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11481
COUNSEL
Paul B. Mohler, Heller Ehrman White & McAuliffe, Wash-
ington, D.C.; Stan Berman, Heller Ehrman White &
11482 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
McAuliffe, Seattle, Washington; Joshua Bar-Lev, Mark D.
Patrizio, Kermit R. Kubitz, San Francisco, California, for
petitioner PG&E.
Charles F. Robinson, Anthony J. Ivancovich, Gene L. Waas,
Folsom, California; Michael E. Ward, J. Phillip Jordan, Brad-
ley R. Miliauskas, Swidler Berlin Shereff Friedman, Wash-
ington, D.C.; Erik N. Saltmarsh, Victoria S. Kolakoski,
California Electricity Oversight Board, Sacramento, Califor-
nia, for petitioner-intervenor Cal-ISO and intervenor Califor-
nia Electricity Oversight Board.
Cynthia A. Marlette, Dennis Lane, Beth G. Pacella, Washing-
ton, D.C., for respondent FERC.
OPINION
THOMAS, Circuit Judge:
In this case, we consider another piece of the California
energy crisis puzzle.1 Before us are petitions for review from
the California Independent System Operator (“Cal-ISO”) and
Pacific Gas and Electric Company (“PG&E”), alleging that
the Federal Energy Regulatory Commission (“FERC”) com-
mitted various errors in permitting Cal-ISO to re-run certain
Settlement Statements. We dismiss the petitions for lack of
subject matter jurisdiction. We conclude that we lack subject
matter jurisdiction to consider Cal-ISO’s petition for review
because it implicates FERC’s prosecutorial discretion. We
conclude that we lack subject matter jurisdiction to entertain
1
We deferred submission of this case pending resolution of Public Utili-
ties Comm’n v. FERC, 456 F.3d 1025 (9th Cir. Aug. 2, 2006) (“PUC-
FERC”). This case was resubmitted for decision following the filing of the
PUC-FERC opinion.
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11483
PG&E’s petition for review because it is an impermissible
collateral attack on a prior FERC order.2
I
These are two more cases in a series of cases concerning
California’s energy crisis, which occurred from 1998-2002.
We have provided a history of the crisis in other opinions, see
e.g., PUC-FERC, 2006 WL 2147552 at *2-*12, so it is unnec-
essary for us to detail it here except as necessary to explain
our reasoning. See also Cal. ex rel. Lockyer v. FERC, 383
F.3d 1006, 1008-11 (9th Cir. 2004) (summarizing the history
of the California energy crisis and FERC’s response).
In brief, with the goal of converting California’s investor-
owned, regulated utilities to a deregulated, competitive mar-
ket, the California legislature enacted Assembly Bill 1890
(“AB 1890”). Act of September 23, 1996, 1996 Cal. Legis.
Serv. 854 (codified at Cal. Pub. Util. Code §§ 330-398.5).
Under AB 1890, the major investor-owned, vertically inte-
grated utilities were required to divest a substantial portion of
their power generation plants to unregulated, non-utility pro-
ducers. After divesting the generation assets, the investor-
owned utilities were required to sell all of their remaining out-
put to the California Power Exchange (“CalPX”), a nonprofit
wholesale clearinghouse created by AB 1890. CalPX, which
was deemed a public utility pursuant to the Federal Power
Act, see 16 U.S.C. § 824(e), and thus subject to regulation by
FERC, see 16 U.S.C. § 824(b), (d), was to provide a central-
ized auction market for trading electricity.
AB 1890 created another nonprofit entity, the California
2
Because we dismiss both petitions for lack of jurisdiction and do not
reach the merits of either petition, the motions of (1) M-S-R Power
Agency, et al. and (2) Puget Sound Energy, Inc., for leave to intervene are
DENIED. Similarly, PowerEx Corp.’s motion for reconsideration of our
prior order denying it leave to intervene is DENIED.
11484 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
Independent System Operator (“Cal-ISO”), also subject to
FERC jurisdiction, which was to be responsible for managing
California’s electricity transmission grid and balancing elec-
trical supply and demand. Although the investor-owned utili-
ties continued to own the transmission facilities, Cal-ISO
exercised operational control over the grid.
To maintain the necessary balance, Cal-ISO was autho-
rized, and, during the California energy crisis, often required,
to purchase energy. It purchased two types of energy: (1) “un-
instructed imbalance energy,” which it used to balance the
electrical grid, and (2) “operating reserves,” or “ancillary ser-
vices capacity,” which a seller agreed to hold in abeyance in
case of a shortage or other emergency. When it purchased
operating reserves, Cal-ISO paid the seller full fare, even if it
did not ultimately need the reserved energy.
Cal-ISO’s energy purchases led to two distinct problems.
First, after a thirty-month investigation, Cal-ISO discovered
that fourteen entities may have been selling single units of
energy as both uninstructed imbalance energy and operating
reserves from April 1, 1998, to September 9, 2000. If true,
those entities “doubled billed” Cal-ISO because they received
two payments for a single unit of energy: one payment for
uninstructed imbalance energy, and another for operating
reserves, even though no energy was actually reserved.
Second, Cal-ISO made some of its energy purchases in the
form of energy exchange transactions, in which Cal-ISO paid
for the energy needed to balance the electricity grid in kind,
rather than in cash. In a typical transaction, a seller would
supply Cal-ISO with energy to balance the grid, and Cal-ISO
would repay the seller — usually the next day — with two
units of energy for every one unit provided. The energy
exchange transactions proved difficult for Cal-ISO because it
was required, as a non profit corporation, to keep a neutral
cash balance, and the energy exchange transactions led to
accounting imbalances. When Cal-ISO received energy as
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11485
part of an exchange transaction, it showed a positive balance.
When, however, Cal-ISO paid for the energy, it showed a
negative balance. To remedy these imbalances, Cal-ISO
implemented a “Neutrality Adjustment Charge,” which spread
the costs incurred in balancing the electricity grid among all
market participants, even if individual entities bore no respon-
sibility for those grid imbalances.
Following deregulation and the creation of CalPX and Cal-
ISO, certain energy providers were alleged to have manipu-
lated the California energy market through a variety of means,
resulting in artificially inflated energy prices. In August 2000,
San Diego Gas and Electric Company (“SDG&E”) filed a
complaint under § 206 of the Federal Power Act, 16 U.S.C.
§ 824e(a), against sellers of energy and ancillary services in
the CalPX and Cal-ISO markets. SDG&E requested that
FERC impose a price cap on sales into those markets. Other
parties, including PG&E and the State of California, joined
the complaint.
On August 23, 2000, FERC issued an order denying the
relief requested by SDG&E, but determining that it was
appropriate to investigate the justness and reasonableness of
the rates for all sales in the CalPX and Cal-ISO markets. San
Diego Gas & Elec. Co., et. al., 92 F.E.R.C. ¶ 61,172 (2000)
(“August 23, 2000 Order”). Therefore, it established its own
investigatory proceeding in FERC Docket Nos. EL-00-95 and
EL00-98 (“the Remedy Proceeding”). FERC also initiated a
show-cause hearing regarding energy prices in California. See
, e.g., Am. Elec. Power Serv. Corp., 103 F.E.R.C. ¶ 61,345
(2003).
As part of the Refund Proceeding, FERC established a miti-
gated market clearing price (“MMCP”), which estimated what
the market price for energy would have been in a competitive
market. See San Diego Gas & Elec. Co., 102 F.E.R.C.
¶ 61,317 at 62,062 (2003). FERC then ordered Cal-ISO to re-
run past Settlement Statements, which are Cal-ISO’s invoices,
11486 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
to reflect what they would have been had consumers been
charged the MMCP, enabling FERC to calculate the refunds
owed to California consumers. See id. at 62,063.
Before conducting the re-run that FERC ordered in the
Refund Proceeding, Cal-ISO sought to perform a preliminary
re-run to eliminate the effects of “double selling,” the “Neu-
trality Adjustment Charge,” and other errors in its settlement
procedure. The preliminary re-run would have given Cal-ISO
the “appropriate baseline” against which to complete the
FERC-ordered re-run.
Cal-ISO proposed Cal-ISO Tariff Amendment Number 51
(“Amendment 51”) to remove any obstacles to its completing
the preliminary re-run. FERC conditionally accepted Amend-
ment 51, subject to Cal-ISO’s submitting a compliance filing
that provided further detail about the scope and effects of the
proposed Tariff amendments. Cal. Indep. Sys. Operator
Corp., 103 F.E.R.C. ¶ 61,331 (2003). Cal-ISO provided more
detail about Amendment 51, and FERC approved the majority
of Cal-ISO’s proposed amendments on November 14, 2003.
Cal. Ind. Sys. Operating Corp., 105 F.E.R.C. ¶ 61,203 (2003)
(“November 14 Order”). These petitions for review stem from
the portions of Amendment 51 that address the “double sell-
ing” and “Neutrality Adjustment Charge” problems.
To address the “double selling” problem, Cal-ISO proposed
to amend its operating Tariff to permit recision of double pay-
ments made between April 1, 1998 and September 9, 2000.
FERC rejected the proposal, noting that “this proposed adjust-
ment concerns the ‘double selling’ issue set for hearing in the
Enron strategy show cause proceedings.” November 14
Order, 105 F.E.R.C. ¶ 61,203 at 62,061. FERC refused Cal-
ISO’s request for rehearing, noting that the proposed changes
to the Tariff would have “address[ed] more transactions, more
parties, and a longer time period than specified in the Com-
mission’s Show Cause Proceedings.” Cal. Ind. Sys. Operating
Corp., 106 F.E.R.C. ¶ 61,099 at 61,350 (2004) (“February 3
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11487
Order”). More specifically, FERC rejected Cal-ISO’s pro-
posed Tariff amendment because it
proposes to address the time period of April 1, 1998
to September 9, 2000 and encompass ten other enti-
ties that were not covered in the Show Cause Pro-
ceeding. In the Show Cause Proceedings the
Commission determined that the relevant time period
was January 1, 2000 to June 20, 2001 to explore cer-
tain gaming issues, including double selling. Also, in
the Show Cause Proceedings the Commission inves-
tigated and determined there was only enough evi-
dence to proceed with four parties on the double
selling issue. We reject the [Cal-ISO’s] attempt to
use the re-run adjustment in this docket to expand
the transactions covered under the Show Cause Pro-
ceedings. We find that the Show Cause Proceedings
are the proper forum to resolve disputed legal and
factual issues related to alleged double selling.
Therefore, we will reject the [Cal-ISO’s] adjustment
to rescind payments for ancillary services and we
will deny the [Cal-ISO’s] request for rehearing on
this issue.
Id. at ¶ 61,351. Cal-ISO petitioned for review in this court.
To address the fact that the “Neutrality Adjustment
Charge” accounting method unfairly charged all market par-
ticipants — even those who had no hand in the energy imbal-
ances — for the deficits shown on Cal-ISO’s books, Cal-ISO
sought to re-run Settlement Statements using the “Total Nega-
tive Uninstructed Imbalance Energy” accounting method.
Under that method, only those parties who caused the energy
imbalances would bear the expense of balancing the grid.
FERC approved of Cal-ISO’s proposal on November 14,
2003, despite the fact that the amendment would have shifted
between one and two hundred million dollars in settled
charges, November 14 Order, 105 F.E.R.C. ¶ 61,203, and
11488 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
refused to reconsider its decision, February 3, 2004 Order,
106 F.E.R.C. ¶ 61,099. PG&E petitioned this court for review.3
II
The threshold question is whether we have jurisdiction to
entertain the petitions for review. FERC argues that we lack
jurisdiction over the Cal-ISO petition under Heckler v.
Chaney, 470 U.S. 821, 831-32 (1985). It contends that we
lack jurisdiction over the PG&E petition as an impermissible
collateral attack on a final FERC order. We are required to
establish our jurisdiction before reaching the merits of the
petitions. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83
(1998).
A
[1] Under the Administrative Procedure Act, we may
review agency actions “except to the extent that (1) statutes
preclude judicial review; or (2) agency action is committed to
agency discretion by law.” 5 U.S.C. § 701(a). We are thus
presumptively prohibited from reviewing “an agency’s deci-
sion not to prosecute or enforce, whether through civil or
criminal process” because such decisions are “generally com-
mitted to an agency’s absolute discretion.” Heckler, 470 U.S.
at 831-32. The Heckler jurisdictional bar “is applicable in
those rare instances where statutes are drawn in such broad
terms that in a given case there is no law to apply.” Id. at 830.
[2] While the presumption against judicial review “may be
rebutted where the substantive statute has provided guidelines
for the agency to follow in exercising its enforcement pow-
ers,” id. at 833, the relevant provisions of the FPA “reveal[ ]
no such establishment of priorities or meaningful guidelines,”
3
To the extent that PG&E’s petition requires us to consider documents
not part of the record in this case, PG&E’s unopposed motion for judicial
notice is GRANTED.
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11489
Friends of the Cowlitz v. FERC, 253 F.3d 1161, 1171 (9th
Cir. 2001), amended by 282 F.3d 609 (2002). On the contrary,
the FPA gives FERC “wide latitude in its enforcement deci-
sions.” Id.4
[3] Cal-ISO seeks review of an order in which FERC
declined to amend Cal-ISO’s Tariff so that Cal-ISO could re-
run certain Settlement Statements to correct alleged instances
of “double selling.” FERC denied Cal-ISO’s proposed amend-
ment because FERC had already investigated “double selling”
in the California energy market, and had determined that the
recisions would apply to a narrower time period and fewer
parties than Cal-ISO requested in Amendment 51. March 3
Order, 106 F.E.R.C. ¶ 61,099 at 61,350-351. Cal-ISO’s peti-
tion for review effectively complains that FERC acted arbi-
trarily and capriciously in limiting its prosecution of “double
selling” in the California energy market. Because FERC
retains almost unfettered discretion to initiate investigations
and prosecute violations of the FPA, we lack jurisdiction to
review FERC’s order under Heckler, and dismiss Cal-ISO’s
petition for review.
Cal-ISO argues that Heckler does not apply to this case
because the underlying principle in Heckler is that courts
should not second-guess agency decisions.
An agency decision not to enforce often involves a
complicated balancing of a number of factors which
are peculiarly within its expertise. Thus, the agency
must not only assess whether a violation has
occurred, but whether agency resources are best
spent on this violation or another, whether the
agency is likely to succeed if it acts, whether the par-
ticular enforcement action requested best fits the
4
Of course, our lack of jurisdiction over FERC’s purely discretionary
prosecutorial decisions does not relieve FERC of its duty to adjudicate.
PUC-FERC, 2006 WL 2147552 at *17-*18.
11490 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
agency’s overall policies, and, indeed, whether the
agency has enough resources to undertake the action
at all. An agency generally cannot act against each
technical violation of the statute it is charged with
enforcing. The agency is far better equipped than the
courts to deal with the many variables involved in
the proper ordering of its priorities.
470 U.S. at 831-32. Here, however, Cal-ISO argues that Cal-
ISO was not asking FERC to use FERC’s enforcement power.
Rather, Cal-ISO “was seeking to act pursuant to its tariff.”
Cal-ISO’s argument is unconvincing for two reasons.
[4] First, Cal-ISO’s argument stems from a faulty premise.
Cal-ISO assumes that it had the authority, pursuant to its Tar-
iff, to re-run Settlement Statements to correct instances of ille-
gal “double selling.” It is well-settled that “the Federal Power
Act . . . grants FERC ‘exclusive authority to regulate the
transmission and sale at wholesale of electric energy in inter-
state commerce.’ ” Public Util. Dist. No. 1 v. IDACORP Inc.,
379 F.3d 641 (9th Cir. 2004) (quoting Transmission Agency
of N. Cal. v. Sierra Pac. Power Co., 295 F.3d 918, 928 (9th
Cir. 2002)). See also Cal. ex rel. Lockyer v. Dynegy, Inc., 375
F.3d 831, 852 (9th Cir. 2004) (“Remedies for breach and non-
performance of [FERC]-approved operating agreements in the
interstate wholesale electricity market fall within the exclu-
sive domain of FERC.” (submission deferred pending bank-
ruptcy)). Given that FERC has exclusive jurisdiction to
regulate electricity markets, Cal-ISO simply lacks the power
to conduct a re-run without FERC’s approval to correct “dou-
ble selling” violations of the FPA. FERC, therefore, was cor-
rect when it noted that Cal-ISO’s “compliance filing
improperly attempts to rescind ancillary services capacity
payments related to alleged ‘Double Selling’ and the proper
forum for this issue is one of the Show Cause proceedings.”
November 13 Order, 105 F.E.R.C. ¶ 61,203 at ¶ 16.
[5] Moreover, even assuming, without deciding, that FERC
could have legally delegated its enforcement authority to Cal-
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11491
ISO, we do not believe that FERC intended any such delega-
tion here. Cal-ISO’s Tariff admittedly permitted it “to per-
form Settlement Statement re-runs” after the Cal-ISO
Governing Board has “determine[d] in its reasonable discre-
tion, whether there is good cause to justify the performance
of a Settlement Statement re-run.” While Cal-ISO clearly has
some authority to conduct re-runs — perhaps in the event of
a clerical error — we do not read the generic and broad-
reaching language in the Tariff as a delegation of FERC’s oth-
erwise exclusive enforcement authority under the FPA.
[6] Second, FERC, in its February 3 Order, clearly charac-
terizes its November 13 Order as a denial of Cal-ISO’s
request “to expand the transactions covered under the Show
Cause Proceedings.” February 3 Order, 106 F.E.R.C. ¶ 61,099
at 61,350-351. In stating that it refused Cal-ISO’s request to
expand the scope of the re-run it had ordered as part of its
enforcement proceedings, FERC necessarily declined to exer-
cise its enforcement authority under the FPA. The record sim-
ply does not support Cal-ISO’s argument that FERC was
attempting “through ex post facto decree to transmute its
rejection of [Cal-ISO’s] proposed rerun into a refusal to exer-
cise enforcement authority.” Moreover, “it is well established
that an agency’s interpretation of the intended effect of its
own orders is controlling unless clearly erroneous.” Sw. Gas
Corp. v. FERC, 145 F.3d 365, 370 (D.C. Cir. 1998). Because
FERC’s February 3 interpretation of its November 13 Order
is not clearly erroneous, we must accept it as controlling.
Thus, we dismiss Cal-ISO’s petition for review for lack of
jurisdiction under Heckler.
B
[7] Under the FPA, we have jurisdiction to hear petitions
for review from any party aggrieved by a FERC order. 16
U.S.C. § 825l(b). Our jurisdiction, however, is limited to
review of new orders. We may not entertain a petition for
review that collaterally attacks a prior FERC order. IDA-
11492 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
CORP Inc., 379 F.3d at 652 n.12 (“Under the FPA, a party
aggrieved by a FERC order must obtain review of that order
by petitioning the court of appeals; that party cannot attack
the order by way of a new lawsuit in federal court.”). To
determine whether a petition for review is barred as a collat-
eral attack on a prior order, we must determine whether the
order upon which the petition is based “was merely a ‘clarifi-
cation’ ” of a prior order, or whether it “was a ‘modifica-
tion’ ” of a prior order. Dominion Res., Inc. v. FERC, 286
F.3d 586, 589 (D.C. Cir. 2002). The latter is reviewable on
appeal, while review of the former is barred as an impermissi-
ble collateral attack. To differentiate between a clarification
and a modification, we ask “whether a reasonable [party] in
[the petitioner’s] position would have perceived a very sub-
stantial risk that [the original order] meant what the Commis-
sion now says it meant.” Id. at 589-90 (quotations omitted).
The order in question is FERC’s approval in the Refund
Proceeding of Cal-ISO’s proposal to apply the “Total Nega-
tive Uninstructed Imbalance Energy” accounting method to
energy exchange transactions during the re-run. See San
Diego Gas & Elec. Co., 102 F.E.R.C. ¶ 61,317 at ¶ 14 (2003)
(summarily adopting the administrative law judge’s finding
with respect to Cal-ISO’s “proposed methodology for
accounting for Energy Exchange Transactions”).5 FERC
explicitly adopted the findings of the administrative law judge
(“ALJ”), who stated in his Certification of Proposed Findings
on California Refund Liability,
On balance, I find and conclude that it is appropriate
to account for energy exchange transactions under
5
Cal-ISO’s proposed accounting method derived from an agreement it
entered into with the Bonneville Power Administration (“BPA”) on
August 23, 2001, in which Cal-ISO and BPA agreed to establish an energy
exchange program using the “Total Negative Uninstructed Imbalance
Energy” accounting method. FERC approved the agreement on October
17, 2001.
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11493
[Cal-ISO’s] methodology as set forth in its energy
exchange agreement with BPA. . . . This methodol-
ogy allows these transactions to be identically
treated in both [Cal-ISO’s] production system and
refund calculations and, thus, ensures symmetrical
treatment in a just and reasonable manner.
San Diego Gas & Elec. Co., 101 F.E.R.C. ¶ 63,026 at ¶536
(2002) (“ALJ Proposed Findings”).
[8] When FERC approved provisions in Amendment 51
that permitted Cal-ISO to apply the “Total Negative Unin-
structed Imbalance Energy” accounting method to its prelimi-
nary re-run of the energy exchange transactions, FERC
simply clarified and implemented its previous order in the
Refund Proceeding. It did not substantively alter the meaning
or scope of its order in the Refund Proceeding. From FERC’s
explicit adoption of the ALJ’s findings, a reasonable party in
PG&E’s position should have known that the “Total Negative
Uninstructed Imbalance Energy” accounting method set forth
in the BPA agreement was to apply to the re-run. Thus, to
challenge FERC’s approval of the “Total Negative Unin-
structed Imbalance Energy” accounting method, PG&E’s only
option was to petition for review of the order entered in the
Refund Proceeding. PG&E cannot obtain two bites of the pro-
verbial apple by petitioning for review here as well. We,
therefore, dismiss PG&E’s petition for review for lack of
jurisdiction.
PG&E makes three arguments in favor of our retaining
jurisdiction, none of which we find persuasive. First, PG&E
argues, citing Lombardi v. City of El Cajon, 117 F.3d 1117,
1121-22 (9th Cir. 1997), that its petition for review is not an
impermissible collateral attack on the Refund Proceeding
order because that order is currently on appeal in this court.
PG&E’s argument is unpersuasive because at this time, we
have rendered our decision in that appeal. See PUC-FERC.
11494 PACIFIC GAS AND ELECTRIC COMPANY v. FERC
Second, PG&E argues that the order in this case modified
— not clarified — the order in the Refund Proceeding
because the order in this case “involved an actual reallocation
of costs” and the prior order had not given “the parties . . . a
concrete proposal for how the proposed reallocation might
impact the market or the parties.” This argument is uncon-
vincing because as explained above, PG&E should “have per-
ceived a very substantial risk,” Dominion, 286 F.3d at 589-90,
from FERC’s order in the Refund Proceeding that Cal-ISO
would conduct its re-run using the “Total Negative Unin-
structed Imbalance Energy” accounting method, despite a
potential shift of costs between market participants. The fact
that the November 13 and February 4 orders may be more
detailed than the order in the Refund Proceeding does change
the fact that they clarified — not modified — the Refund Pro-
ceeding order and PG&E’s expectations. In fact, as the ALJ
summarized, PG&E’s own expert testified that Cal-ISO
was in the process of retroactively changing its
accounting and settlements process for energy
exchange transactions that would substantially shift
costs between market participants. [The expert]
advocated that [Cal-ISO] allocate these costs using
the standard settlement accounting method in both
the original and rerun settlements rather than devel-
oping new accounting methods not provided for in
the [Cal-ISO] Tariff and that are outside the scope of
this proceeding. She did not think [Cal-ISO’s] reli-
ance on its energy exchange agreement with BPA
. . . was appropriate. It was inappropriate because
[Cal-ISO] did not seek FERC approval for any spe-
cial account treatment for exchanges that conflicted
with the provisions of its tariff. [Cal-ISO] also did
not have authority to retroactively change its
accounting for energy exchange transactions.
ALJ Proposed Findings, 101 F.E.R.C. ¶ 63,026 at ¶ 533
(emphasis added). From the ALJ’s summary of testimony
PACIFIC GAS AND ELECTRIC COMPANY v. FERC 11495
from PG&E’s expert, it is clear that PG&E was very well
aware that Cal-ISO’s proposal to use “Total Negative Unin-
structed Imbalance Energy” accounting method would result
in an actual, and potentially significant, reallocation of costs
between participants in the California electricity market. It is
equally clear that PG&E raised the same concerns in the
Refund Proceeding that it raises in the petition for review
before us. We decline to readdress those concerns in this pro-
ceeding.
Finally, PG&E argues that its petition for review is not a
collateral attack on the Refund Proceeding order because this
order concerns a rate change, and therefore presents legal
issues that were not present in the Refund Proceedings. See 16
U.S.C. § 824d(a) (requiring that FERC decide whether a pub-
lic utility’s rates are “just and reasonable”). This argument,
too, is unpersuasive. PG&E does not request that we simply
determine whether FERC erred in finding that an alleged rate
increase was “just and reasonable.” Rather, PG&E requests
that we hold, in the first instance, that there was a change in
rates, and that the change violated the prohibition of retroac-
tive rate-making. See generally Montana-Dakota Util. Co. v.
N.W. Pub. Serv. Co., 341 U.S. 246 (1951). This question
clearly arose — and PG&E argued it — in the Refund Pro-
ceeding. We decline to revisit it here.
[9] Because we hold that we lack jurisdiction to consider
PG&E’s petition for review as a collateral attack on the
Refund Proceedings, we decline to consider whether PG&E’s
motion constitutes a collateral attack of either the agreement
between Cal-ISO and the BPA, or Tariff Amendments 23 and
33. We also decline to reach Cal-ISO’s substantive arguments
regarding whether the “Total Negative Uninstructed Imbal-
ance Energy” accounting method constituted impermissible
retroactive ratemaking.
For these reasons, we dismiss Cal-ISO’s and PG&E’s peti-
tions for review.
DISMISSED.