Home » Articles » Volume 45 » Issue 3 » Court Opinions » Ninth Circuit » NW Res. Inf. Ctr. V. NW Power & Conserv. Council (No. 10-72104, 2013)

 
 

NW Res. Inf. Ctr. V. NW Power & Conserv. Council (No. 10-72104, 2013)

 

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Opinion

Summary [1]

The panel affirmed the Sixth Northwest Power Plan, adopted by the Northwest Electric Power and Conservation Council, concerning a “due consideration” challenge to the accommodation of fish and wildlife interests with hydropower interests in the Columbia River Basin, and remanded on a limited basis for additional consideration.

Petitioner, an environmental group, alleged that the Council failed to give “due consideration” to the accommodation of fish and wildlife interests in the Columbia River Basin when the Council adopted the Plan that laid out biological objectives, principles, and strategies designed to benefit fish and wildlife but did not prescribe specific operations.

The panel held that it would not second-guess the due consideration that the Council gave to fish and wildlife interests in the adoption of the Plan where plaintiffs did not point to any part of the Pacific Northwest Electric Poser Planning and Conservation Act that required the Council to reconsider fish and wildlife measures in light of its evaluation of the regional power system from the subsequent power- planning process.

The panel remanded the Plan to the Council for the limited purposes of allowing public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and reconsidering the inclusion in the Plan of a market price- based estimate of the cost of accommodating fish and wildlife interests.

Judge Ikuta concurred in part and dissented in part. Judge Ikuta agreed with the majority to the extent it remanded the Plan to the Council to correct its error in failing to circulate the statutorily required methodology section for notice and comment, and agreed with the majority’s conclusion that the Council gave due consideration to the accommodation of fish and wildlife interests in the Columbia River Basin when it adopted the Plan. Judge Ikuta dissented from the remainder of the majority’s decision.

Footnotes    (↵ returns to text)

  1. This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
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