The group of nonprofits suing the Bonneville Power Administration in the 9th Circuit Court of Appeals filed its opening brief, saying BPA’s decision to join SPP’s Markets+ instead of CAISO’s Extended Day-Ahead Market “violated clear mandates from Congress.”

The group filed the opening brief Nov. 3, urging the court to vacate BPA’s record of decision to join Markets+. It also asked the court to order the agency to launch an Environmental Impact Statement (EIS) process.

Represented by Earthjustice, the organizations suing BPA include NW Energy Coalition, Idaho Conservation League, Montana Environmental Information Center, Oregon Citizens’ Utility Board and the Sierra Club.

“Bonneville’s failure to comply with the Power Act’s requirement to ensure its policy decision would keep power costs low in the Pacific Northwest while protecting environmental quality, and Bonneville’s decision to ignore its obligations under [National Environmental Policy Act], violated clear mandates from Congress,” the brief states. “Vacatur is the appropriate remedy here.”

On May 9, BPA issued its long-awaited decision to join Markets+ over EDAM. The announcement came after a lengthy debate over which day-ahead market would provide the most benefits to BPA and its customers. (See BPA Chooses Markets+ over EDAM.)

The plaintiffs in the underlying suit filed their claims July 10, alleging the agency failed to factor in environmental impacts and financial considerations in violation of the National Environmental Policy Act, the Pacific Northwest Electric Power Planning and Conservation Act and the Administrative Procedure Act. (See BPA Sued in 9th Circuit over Day-ahead Market Decision.)

‘Fight for It’

The opening brief reiterates many of the allegations in the lawsuit. For example, the plaintiffs claim BPA failed to consider several cost analyses showing the purported benefits of EDAM over Markets+.

The brief cites an analysis by state agencies in Washington and Oregon using BPA’s data that found the agency could have saved its customers $4.4 billion through 2035 by joining EDAM.

Those arguments follow a production cost study by Energy and Environmental Economics (E3) commissioned by BPA in 2024 that showed participation in EDAM under certain scenarios could deliver the agency up to $106 million in greater benefits than Markets+.

BPA also allegedly violated NEPA by failing to conduct an EIS and assess the environmental effects of its day-ahead market choice, according to the plaintiffs.

“It is shocking that the Bonneville Power Administration chose to undermine our grid reliability and forego $4 billion in reduced power costs for the Pacific Northwest region by choosing Markets+,” Jaimini Parekh, senior attorney with Earthjustice, told RTO Insider. “Low-cost, renewable power is available to our region if BPA chooses it, and we will fight for it through this case.”

A BPA spokesperson told RTO Insider the agency does not comment on active litigation. SPP also declined to comment.

However, BPA has argued its day-ahead market process was conducted with significant stakeholder input, noting in its final market decision that other electric utilities weighing which market to join have done so “without public process or transparency.”

As for the production cost studies, the agency has contended those failed to factor in other key issues, like governance. BPA says the SPP market’s governance structure is “superior” to EDAM’s, despite ongoing efforts by the West-Wide Governance Pathways Initiative to relax the state of California’s oversight for CAISO’s EDAM and WEIM.

Several trade organizations have filed motions to intervene in the suit in support of BPA, including SPP, Public Power Council, Alliance of Western Energy Consumers, Pacific Northwest Generating Cooperative and Northwest Requirements Utilities. (See BPA Supported by Trade Orgs in Suit over Day-ahead Market Decision.)

The BPA supporters have also highlighted Markets+’s governance approach and “overall design.”

PPC Director of Market Policy and Grid Strategy Lauren Tenney Denison told RTO Insider the organization “has repeatedly commented that we disagree with the assumption that Markets+ participation will increase power costs in the Northwest.”

Tenney Denison noted E3 has issued an updated analysis that reinforced “PPC’s perspective that there are broad directional benefits from day-ahead market participation, but the analysis falls short of encapsulating the aggregate impacts to preference customers of BPA’s day-ahead market decision.”

“This uncertainty around economic results leads PPC to place a higher importance on other aspects of the decision,” Tenney Denison said. “PPC continues to place significant value on the inclusive stakeholder-driven governance framework in Markets+. The value associated with BPA having a voice in how the market develops and responds to regulatory, legislative and operational needs will likely significantly outweigh the differences in market footprint estimated by production cost studies.”