A three-judge federal appeals court panel on Sept. 18 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.
The petitioner, an environmental group called the Northwest Information Resource Center, alleged that the council failed to give “due consideration” to the accommodation of fish and wildlife interests in the basin when the council adopted a plan that laid out biological objectives, principles, and strategies designed tobenefit fish and wildlife but did not prescribe specific operations.
The appeals court 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 the plaintiff did not point to any part of the Pacific Northwest Electric 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.
This case is the latest round of environmental litigation in the 33-year history of the Pacific Northwest electric planning act. That statute established the council, which is an interstate agency composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington that Congress tasked with promulgating both “a regional conservation and electric power plan” and “a program to protect, mitigate, and enhance fish and wildlife.”
“The Power Act was designed to resolve the conflict between the Columbia River Basin’s two great natural resources: hydropower and salmon,” the appeals court ruling noted. “Over the years, the Council’s efforts to fulfill its duties have been challenged in federal court by various regional stakeholders, including environmental groups, power companies, state governments, Indian nations, and power consuming industrial interests.”
“The Northwest Power Act requires the Council to restore salmon and steelhead populations in the Snake and Columbia Rivers while maintaining an adequate and economical power supply,” said Steve Mashuda, an attorney for Earthjustice representing the Northwest Resource Information Center in the case, in a Sept. 19 statement about the appeals court decision. “The Northwest enjoys an abundant power supply, but this decision confirms that we can and must do more to protect the fish.”
The appeals court ruling came only a day after the region’s state and tribal fisheries managers and the public submitted extensive recommendations for the council to improve its related fish and wildlife program, Earthjustice noted. Many of those recommendations target the operation of federal dams that the group said have decimated Snake and Columbia River salmon runs.
The court ordered the council to reconsider two important other aspects of the Sixth Power Plan concerning the costs and benefits of fish restoration and power production, Earthjustice said.
- First, it found that the council’s power plan arbitrarily incorporated the Bonneville Power Administration’s (BPA) “exaggerated” estimates of the “costs” of current fish protection measures, the environmental group said. “For far too many years, the Council has repeated the BPA myth that fish protection measures are a foregone opportunity to generate power and should count as cost,” said Mashuda. “I can’t claim a tax loss because I follow the law and refrain from selling my neighbor’s car. But that’s just what BPA is doing when it assumes power generation somehow counts as a cost.”
- Second, the court found that the council failed to provide the public an opportunity to weigh in on the methodology it uses to estimate the environmental costs and benefits of various power resources.