Argued and Submitted June 7, 2013—Seattle, Washington
Appeal from the Northwest Power and Conservation Council
Stephen D. Mashuda (argued) and Kevin E. Regan, Earthjustice, Seattle, Washington, for Petitioner.
John L. Shurts (argued) and Sandra L. Hirotsu, Northwest Power and Conservation Council, Portland, Oregon, for Respondent.
Beth S. Ginsberg (argued) and Jason T. Morgan, Stoel Rives, LLP, Seattle, Washington, for Respondents-Intervenors.
Before: Arthur L. Alarcón, Ronald Lee Gilman [*] , and Sandra S. Ikuta, Circuit Judges.
Northwest Power Act
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.
GILMAN, Senior Circuit Judge:
The present case is the latest round of environmental litigation in the 33-year history of the Pacific Northwest Electric Power Planning and Conservation Act (the Power Act), 16 U.S.C. §§ 839–839h. That statute established the Northwest Power and Conservation Council (the Council), 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." 16 U.S.C. § 839b(d)(1), 839b(h)(1)(A).
The Power Act was designed to resolve the conflict between the Columbia River Basin's two great natural resources: hydropower and salmon. Nw. Res. Info. Ctr. v. Nw. Power Planning Council, 35 F.3d 1371, 1375, 1377 (9th Cir. 1994). 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. See id.; Seattle Master Builders Ass'n v. Pac. Nw. Elec. Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986).
This case presents a challenge by an environmental group, the Northwest Resource Information Center (NRIC), to the Sixth Northwest Power Plan (the Plan) that the Council adopted in May 2010. 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. For the reasons set forth below, we AFFIRM the Plan with respect to NRIC's "due-consideration" challenge, but REMAND the Plan to the Council for the limited purposes of (1) allowing public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and (2) reconsidering the inclusion in the Plan of a market-price-based estimate of the cost of accommodating fish and wildlife interests.
A. Statutory background
Prior decisions of this court have discussed the history, purpose, and operation of the Power Act. See, e.g., Nw. Envtl. Def. Ctr. v. Bonneville Power Ass'n, 117 F.3d 1520, 1525–26, 1530–31 (9th Cir. 1997); Nw. Res. Info. Ctr., 35 F.3d at 1377–79. The key source of conflict is that the extensive system of hydroelectric dams in the Columbia River Basin has been "a major factor in the decline of some salmon and steelhead runs to a point of near extinction." Nw. Res. Info. Ctr., 35 F.3d at 1376 (quoting 126 Cong. Rec. H10687 (1980)). Hydroelectric dams have a destructive cumulative effect on salmon and steelhead fish (collectively referred to as "anadromous fish" because they spawn in freshwater, reach maturity in saltwater, and then return to freshwater to reproduce) mostly because they impede the path of juvenile fish to the ocean. Id. at 1376 & n.5.
The "devastating losses of salmon and steelhead in the mid-1970s" prompted Congress to enact the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661–666c, in 1976. Nw. Res. Info. Ctr., 35 F.3d at 1377. But that statute's mandate of giving "equal consideration" to fish and wildlife on the one hand and hydropower projects on the other proved inadequate. Id. Congress also began considering revisions to the electric-power policies in the Northwest region because of "forecasts predicting serious power shortages during critical water years expected in the 1980's." Id. The Power Act, enacted in 1980, was a legislative response to both issues. It "marked an important shift in federal policy" by creating a "new obligation on the region and various Federal agencies to protect, mitigate, and enhance fish and wildlife" while not jeopardizing "an adequate, efficient, economical, and reliable power supply." Id. at 1377–78 (internal quotation marks omitted).
Under the Power Act, the Council must first develop and adopt a fish and wildlife program. See 16 U.S.C. § 839b(h)(2)–(9) (mandating the process for adopting a fish and wildlife program before finalizing a conservation and electric power plan). The Council, in doing so, must seek recommendations from federal and state fish and wildlife agencies and from the region's Indian tribes concerning (1) measures that can be implemented to advance fish and wildlife interests; (2) objectives for the development and operation of hydroelectric projects in the Columbia River Basin that promote such interests; and (3) research and development to, among other things, protect "anadromous fish at, and between, the region's hydroelectric dams." Id. § 839b(h)(2)(A)–(C). Federal and regional water- management agencies, regional electric-power-producing agencies and customers, and the general public may also submit recommendations to the Council. Id. § 839b(h)(3).
After these recommendations undergo a public notice-and-comment process, see 16 U.S.C. § 839b(h)(4), the Council is required to develop a fish and wildlife program based on the recommendations, public commentary, and consultations with the federal and state fish and wildlife agencies, the "appropriate Indian tribes, " the federal agencies responsible for operating or regulating hydroelectric facilities in the region, and "any customer or other electric utility which owns or operates any such facility." See id. § 839b(h)(5) (referring back to the "agencies, tribes, and customers" listed in § 839b(h)(4)(A)). One of the key federal agencies involved in this process is the Bonneville Power Administration (BPA), a power-marketing agency within the United States Department of Energy that is charged with implementing conservation measures and acquiring resources in accordance with the Council's power plan. See Aluminum Co. of Am. v. Bonneville Power Admin., 903 F.2d 585, 588 (9th Cir. 1989) (describing the BPA); 16 U.S.C. § 839d(a) (setting forth the BPA's role in implementing the Council's power plan).
In the event that stakeholder recommendations conflict, the Council is charged with resolving any inconsistency by "giving due weight to the recommendations, expertise, and legal rights and responsibilities of the Federal and the region's State fish and wildlife agencies and appropriate Indian tribes." 16 U.S.C. § 839b(h)(7). The Council may reject any recommendations made by such agencies and tribes, but it must justify the rejection with a written explanation of why the recommendation does not comport with the objectives of the fish and wildlife program as outlined in the Power Act or why the recommendation would be less effective than the adopted recommendations. Id.
Congress also set forth in the Power Act a substantive mandate for the fish and wildlife program: "The program shall consist of measures to protect, mitigate, and enhance fish and wildlife affected by the development, operation, and management of [hydroelectric] facilities while assuring the Pacific Northwest an adequate, efficient, economical, and reliable power supply." 16 U.S.C. § 839b(h)(5). The Council must include such measures that it determines will
(A) complement the existing and future activities of the Federal and the region's State fish and wildlife agencies and appropriate Indian tribes;
(B)be based on, and supported by, the best available scientific knowledge;
(C)utilize, where equally effective alternative means of achieving the same sound biological objective exist, the alternative with the minimum economic cost;
(D) be consistent with the legal rights of appropriate Indian tribes in the region; and
(E)in the case of anadromous fish—
(i) provide for improved survival of such fish at hydroelectric facilities located on the Columbia River system; and
(ii) provide flows of sufficient quality and quantity between such facilities to improve production, migration, and survival of such fish as ...