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Ninth Circuit Affirms Council’s Northwest Power Plan; Orders Two Provisions Be Fixed
Posted on Friday, September 27, 2013 (PST)

The Ninth Circuit Court of Appeals in an opinion issued Sept. 20 “affirmed” the Northwest Power and Conservation Council’s Sixth Power Plan, while also ordering that two provisions of the strategy need to be fixed.

The Northwest Power Act of 1980 created the Council with a dual mission to create “a regional conservation and electric power plan” and “a program to protect, mitigate, and enhance fish and wildlife.”

The Council is required to update the Power Plan every five years. That process is proceeded by the amending of the fish and wildlife program’s strategies. Both processes take more than a year to complete and include the involvement of fish and wildlife and power entities and other interested parties.

A petition filed with the appellate court in September 2012 challenged the Sixth Power Plan, which was completed by the Council and staff in May 2010, by an environmental group, the Northwest Resource Information Center.

“NRIC’s key complaint is that the Council failed to give due consideration to the accommodation of fish and wildlife interests when it adopted the Plan,” the court opinion says.

The Council said that its recently amended fish and wildlife program, which was included in the power plan, constituted due consideration.

The NRIC said the Council should have provided independent due consideration – a separate assessment -- regarding protection, mitigation and enhancement measures needed for anadromous (salmon and steelhead, primarily) fish in the Sixth Power Plan.

The three-judge panel last week “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 Power 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,” the opinion says

The panel hearing the case included Arthur L. Alarcón, Ronald Lee Gilman, and Sandra S. Ikuta, circuit judges. The opinion was written by Gilman.

Ikuta concurred with the other two judges on two of the three issues addressed in the opinion. But she dissented on another, saying that the Power Act requires each power plan to include a variety of elements. The Act does not, however, require including, or leaving out, BPA’s cost estimates, she wrote.

“An organization founded in response to threats to the Northwest region’s salmon population may rightly be concerned that BPA’s cost estimate will have a ‘chilling effect’ on efforts to expand the Council’s fish and wildlife program beyond its current scope,” Ikuta wrote.

“But the Council’s decision to report BPA’s cost estimate is well within the scope of editorial choices an agency may make when writing a congressionally mandated plan, and any inferences this language raises are irrelevant to judicial review under the Administrative Procedures Act. Our review extends only to “agency action, findings, and conclusions.” 5 U.S.C. § 706(2). The Council’s report of the BPA’s cost estimate is none of these.”

Intervenors in the legal proceeding include the BPA, the Public Power Council and Northwest RiverPartners. The latter two groups represent Bonneville power customers.

An NPCC interpretation of the ruling, and link to the decision, can be found at:

http://www.nwcouncil.org/news/press-releases/2013-09-18_9thcourt/

Also see CBB, June 21, 2013, “Ninth Circuit Hears Arguments On Whether NPCC Power Plan Gave ‘Due Consideration’ To Fish/Wildlife” http://www.cbbulletin.com/427137.aspx

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