Home » Case Summaries » 2016 » Idaho Conservation League v. Bonneville Power Administration, 826 F.3d 1173 (9th Cir. 2016)

 
 

Idaho Conservation League v. Bonneville Power Administration, 826 F.3d 1173 (9th Cir. 2016)

 

 

In 2011, the Bonneville Power Administration (BPA), the federal agency Congress tasked with selling power generated from the Federal Columbia River Power System (FCRPS), decided to alter its winter operation of the Albeni Falls Dam. BPA determined that altering the winter dam operations would not have a significant impact on the environment and therefore an Environmental Impact Statement (EIS) was not required. The Idaho Conservation League (the League) challenged BPA’s decision as not in compliance with the National Environmental Policy Act[1] (NEPA). The United States Court of Appeal for the Ninth Circuit, hearing the case under original jurisdiction,[2] concluded that BPA’s decision did not require an EIS.

The Albeni Falls Dam sits on a tributary to the Columbia River and is jointly managed by the United States Army Corps of Engineers, BPA, and the Bureau of Reclamation. From the dam’s completion through 1997, BPA allowed the water level maintained behind the dam to fluctuate during the winter months in order to generate electricity to meet electrical demand. By contrast, from 1997 until 2011, in order to protect Kokanee salmon populations, BPA maintained a constant water level during the winter months. In 2009, BPA began advocating for a return to the more flexible dam management strategy, and in 2011 published an Environmental Assessment (EA) calling for flexible winter power operations in order to meet increased power demand. The 2011 EA concluded that the proposal would not have a significant environmental impact and did not require an EIS to further assess environmental impacts.

NEPA requires an EIS for all “major federal actions significantly affecting the quality of the human environment.”[3] When an agency decides to operate a facility according to the policy outcomes that were originally available for that facility, that decision is not a major action.[4] Similarly, when an agency decision would simply maintain the status quo of a facility, an EIS is not necessary.[5] Therefore, according to the Ninth Circuit, if the status quo at the Albeni Falls Dam allowed for fluctuating winter water levels, continuing that policy would not require an EIS. The question, as a result, became whether holding the water level constant from 1997 to 2011 changed the status quo of the facility.

The Ninth Circuit found that BPA never lost its discretion to change the winter water levels behind the dam, and therefore, the status quo of moderating the levels in response to demand never changed. Because keeping the water level constant could not be considered a change in the status quo of dam operations, BPA’s decision to return to a more flexible winter water level maintained the status quo. As a result, the court concluded that, despite a change in the management strategy for a period of years, BPA’s decision to revert to a more flexible management strategy was not a major federal action, and therefore did not require an EIS.

Additionally, the League argued that BPA arbitrarily limited the scope of its EA by failing to consider how the overall operation of the FCRPS contributes to the spread of the invasive flowering rush, an invasive aquatic plant. The League alleged that the EA impermissibly analyzed the rush’s impact incrementally, rather than looking at system-wide impacts. The Ninth Circuit noted that the Plaintiffs might have a colorable claim, but held that the claim was not properly before the court. The League sought review of the winter water level management decision at the Albeni Falls Dam, and not of the FCRPS operation as a whole, and because on appeal a court generally will not consider matters “not specifically and distinctly argued,” the Ninth Circuit decided to not review this claim.[6]

In sum, the Ninth Circuit, exercising original jurisdiction over the dispute, held that BPA did not violate NEPA when, after preparing an EA, it concluded that an EIS was not necessary prior to renewing a policy of allowing for fluctuating water levels behind the Albeni Falls Dam to accommodate increased winter power demands. The court declined to rule on whether the EA sufficiently assessed system-wide impacts of the flowering rush, an invasive species of plant.

 

 

 

Footnotes    (↵ returns to text)

  1. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370(h) (2012).
  2. Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. § 839f(e)(5) (2012) (giving original jurisdiction to the Ninth Circuit for challenges to BPA decisions).
  3. 42 U.S.C. § 4332(2)(C).
  4. Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990).
  5. Id.
  6. See Laboa v. Calderon, 224 F.3d 972, 985 (9th Cir. 2000).
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