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Northwest Environmental Defense Center v. Bonneville Power Administration

 

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The Northwest Environmental Defense Center (NEDC) petitioned for review of agreements reached by Department of Energy (DOE), through Bonneville Power Administration (BPA), with Canada and several electric utilities governing rights to water stored behind hydroelectric dams on the Columbia River System in Canada. NEDC alleged that BPA ignored its duty under the Northwest Power Act (NPA)[1] to provide equitable treatment for fish and wildlife in the river, and that the agency also violated the National Environmental Policy Act (NEPA)[2] by failing to prepare an Environmental Impact Statement (EIS). The Ninth Circuit denied the petition.

The court first addressed NEDC’s argument that once BPA gained control over 2.25 million acre-feet of water stored behind dams in Canada, it was required under the equitable treatment provision of the NPA to dedicate a portion of this water to benefit fish and wildlife. The court determined that NEDC had standing to raise claims under the NPA. Because fish were guaranteed a share of the water, denial of this benefit would injure fish and constitute an injury in fact to the plaintiffs. The equitable treatment mandate stems from the fact that one goal of the NPA is to “protect, mitigate, and enhance the fish and wildlife, including related spawning grounds and habitat, on the Columbia River and its tributaries.”[3] In furtherance of these goals, the Act charges the Administrator of BPA with the duty to exercise his responsibilities in a manner providing the same “equitable treatment” for fish and wildlife as she provides for other purposes of the hydroelectric facilities.

The court concluded that BPA was not required to dedicate a portion of the water for fish at the time it entered into the agreements. Because the vast majority of the water over which BPA acquired control was unallocated, it was premature to determine whether the agency had satisfied its equitable treatment obligation. Once BPA allocates water covered under the agreements, however, the agency is required to demonstrate that it has treated fish and wildlife equitably.

The court emphasized that equitable treatment has both procedural and substantive components. Procedurally, BPA is required to take the Fish and Wildlife Program of the Pacific Northwest Electric Power and Conservation Planning Council (Council)[4] into account to the “fullest extent possible.”[5] However, if the Council’s program fails to ensure adequate fish survival, BPA has a substantive duty to take additional measures beyond those recommended by the Council. The court deferred to BPA’s view that it must balance power needs with those of wildlife on a system-wide basis, but stated that the determination of equitable treatment is “highly fact-specific.”[6] Faced with the difficulty posed by the combination of these two requirements, the court encouraged BPA to develop a “mechanism” for fulfilling its obligation to facilitate meaningful review of decisions.

The Ninth Circuit reviewed BPA’s decision not to prepare an EIS under an “arbitrary and capricious” standard. NEDC argued that BPA should have prepared an EIS because the decision to enter into the storage agreements was extremely controversial. BPA claimed to have addressed this concern by entering into a separate agreement, supported by some but not all commentators, promising that the storage agreement would not be operated in a manner harmful to fish and wildlife. Despite the fact that not all of the concerned commentators signed on to the fish and wildlife agreement, and the agreement was not addressed in the Environmental Assessment (EA), thereby denying the public an opportunity to review it, the court held that BPA’s conclusion that the Fish and Wildlife agreement alleviated most of the concerns regarding the storage agreement was not arbitrary and capricious. In his dissent, Judge Reinhardt pointed out the apparent contradiction of this conclusion. He argued that if the Fish and Wildlife agreement required neither expert analysis nor public discussion because the document’s “sole purpose was to placate the public . . . and . . . not . . . to alleviate environmental injuries, . . . it is difficult to conclude that the agreement quelled public controversy over the [water storage agreements]–unless one also concludes that the public was totally manipulated and deceived.”[7]

NEDC also claimed that an EIS was required because of the following: (1) the failure of the EA to provide for an adequate analysis of cumulative impacts resulting from entering into the storage agreements, (2) BPA’s 1988 decision to increase the Intertie capacity, and (3) the proposed expansion of the Bureau of Reclamation’s Columbia Basin Project. However, the court held that BPA would consider such cumulative impacts in a future study known as the Columbia River Hydroelectric Operations System Operation Review, and that the proposed expansion of the Columbia Basin Project would not escape NEPA review, therefore “BPA made a reasoned evaluation of the relevant factors.”[8] In his dissent, Judge Reinhardt questioned the majority’s conclusion that future compliance with NEPA could relieve BPA of its obligation to consider such cumulative impacts at the time it entered into the agreements.

In conclusion, the Ninth Circuit held that BPA did not violate the NPA or NEPA when it entered into the storage agreements. Consequently the court refused to either enjoin the agency from operating the hydrosystem under the agreements or require BPA to prepare an EIS.


[1]Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. §§ 839-839h (1994).

[2]National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4370d (1994).

[3]16 U.S.C. § 839b(h)(1)(A) (1994).

[4]The Council is an interstate compact created by the Northwest Power Act which is directed to create “a program to protect, mitigate, and enhance” the Columbia River Basin’s fish and wildlife “affected by the development and operation of the Basin’s hydropower system.” 16 U.S.C. § 839b(h)(2)(A) (1994).

[5]Northwest Envtl. Defense Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1532 (9th Cir. 1997).

[6]Id. at 1534.

[7]Id. at 1542.

[8]Id. at 1538 (citing Greenpeace Action v. Franklin, 14 F.3d 1324, 1332 (9th Cir. 1992)).

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