Trade organizations for utilities and large energy consumers seek to intervene in the lawsuit filed in the 9th Circuit Court of Appeals challenging the Bonneville Power Administration’s decision to join SPP’s Markets+ instead of CAISO’s Extended Day-Ahead Market (EDAM).

SPP, Public Power Council (PPC), Alliance of Western Energy Consumers (AWEC), Pacific Northwest Generating Cooperative (PNGC) and Northwest Requirements Utilities (NRU) all filed motions to intervene in late July and early August, citing their members’ “interest” in the lawsuit. (See BPA Sued in 9th Circuit over Day-ahead Market Decision.)

PPC represents the Northwest’s extensive network of publicly owned utilities that make up BPA’s base of “preference” customers. The organization has been a strong supporter of BPA’s day-ahead market decision, saying in its motion to intervene that the case could impact BPA’s transmission services and PPC members.

“PPC intervening in the case is an absolute reflection that a strong majority of Northwest public power supports BPA’s decision and the extensive public process they ran to arrive at the Markets+ outcome,” PPC Executive Director Scott Simms said in an email to RTO Insider.

Simms reiterated arguments that supporters of Markets+ have highlighted throughout BPA’s day-ahead market process, such as the market option’s governance approach and “overall design.” (See BPA Selects SPP Markets+ in Draft Policy.)

“As for the significance of the case, it’s interesting to see just how political the day-ahead markets space has become — evidenced by the named plaintiffs in this case,” Simms added.

The dispute stems from a lawsuit filed on July 10 by NW Energy Coalition, Idaho Conservation League, Montana Environmental Information Center, Oregon Citizens’ Utility Board and the Sierra Club.

Represented by Earthjustice, the group asked the court to review and vacate BPA’s day-ahead market decision. They allege BPA did not consider the environmental impacts and failed to properly assess the purported benefits of CAISO’s EDAM.

According to the suit, the agency now risks increasing costs for customers by not joining EDAM, which the group says has a larger market footprint than Markets+. Additionally, the group claims BPA ignored its obligations to prioritize conservation and renewable power.

The suit brings claims under the National Environmental Policy Act, the Pacific Northwest Electric Power Planning and Conservation Act and the Administrative Procedure Act.

“The participation of these intervenors in the case highlights the importance of this decision by Bonneville, which will have a major impact on the cost of electric power in the Pacific Northwest,” Jaimini Parekh, senior attorney with Earthjustice, said in an email. “That is why we have challenged Bonneville’s decision. State agencies in Washington and Oregon found that had Bonneville made a different decision, and joined EDAM, it could have saved ratepayers billions of dollars.”

‘As Disappointing as it is Unsurprising’

More parties could join the case, as the deadline for intervening is early September. Still, those who have filed petitions so far have done so in support of BPA.

For example, SPP said the plaintiffs’ suit challenges the agency’s decision “to pursue participation in SPP’s Markets+ instead of an alternative day-ahead market preferred by petitioners.”

SPP, which is the operator for Markets+, added that it has “significant interest” in the suit, noting that BPA’s participation “will significantly impact the scope and operation of Markets+.”

NRU, whose 58 utility members buy power from BPA on a preferential basis, has similarly supported the agency in its decision-making process and filed a motion to intervene to defend BPA, NRU Executive Director Zabyn Towner told RTO Insider.

“The fact that a few outside interests are taking legal action to try to force BPA to pursue a day-ahead markets policy that is consistent with their own stated goals is as disappointing as it is unsurprising,” Towner said. “NRU takes serious issue with the plaintiffs’ stated grounds for their challenge and joined the case with the intent to zealously defend BPA, its ability to make decisions in the best interests of public power and the resulting decision to pursue participation in SPP’s Markets+ day-ahead market.”

Bill Gaines, executive director of AWEC, also said Markets+ is preferable for the Pacific Northwest region because of the day-ahead market’s design and because of “governance shortcomings in the CAISO EDAM market that the California legislature has been unwilling to remedy.”

Much of the success of EDAM hinges on a bill in the California legislature that would allow CAISO to relinquish market governance to an independent “regional organization” being established by the West-Wide Governance Pathways Initiative. The bill has been delayed after 21 organizations pulled their support following amendments they found concerning. (See Newsom Reiterates Support for Western Regional Market Push.)

Richard Stover, chief legal officer at PNGC, said BPA’s decision “is very important to PNGC as we enter into new long-term contracts with BPA. On behalf of our members, PNGC intervened to protect its long-term interests and that of its members.”

When asked for a response, BPA said it doesn’t comment on active litigation.