Ninth Circuit Appeals Court upholds Council’s consideration of fish and wildlife interests in developing regional power plan

On September 18, 2013, the U.S. Court of Appeals for the Ninth Circuit issued a decision affirming the Council’s consideration of fish and wildlife interests in developing its Sixth Northwest Conservation and Electric Power Plan in 2010. The ruling came in response to a petition filed that year by Northwest Resource Information Center, Inc. (NRIC), of Eagle, Idaho.

A three-judge panel of the appeals court rejected NRIC’s argument that the Council was obligated to reconsider, during the development of the regional power plan, measures benefitting fish and wildlife that the Council had adopted previously in its fish and wildlife program. The court also agreed with the Council that its statutory obligation to consider fish and wildlife interests when developing the regional power plan is related to the Council’s evaluation of new, as opposed to existing, power resources.

The court did find, however, that the public must have an opportunity to comment on the methodology for determining environmental costs and benefits and that the Council had not provided that opportunity before adopting the Sixth Plan. The Court therefore remanded the plan to the Council for the limited purpose of adopting a methodology following an opportunity for public comment on the methodology. The Court did not make any finding with respect to the specific methodology used in the Sixth Plan recognizing that “[t]he choice of methodology is a highly technical question which falls within the unique expertise of the Council.”

Finally, the court remanded the Sixth Plan to the Council to reconsider the estimated cost of the 2009 Fish and Wildlife Program that was reported in the Sixth Plan. The Court did not find that inclusion of any particular method of estimating program costs was required by the Power Act, only that the Council did not provide a reasoned basis for including the estimate. The court thus remanded the Plan to the Council to reconsider inclusion of the cost estimate in the Sixth Plan.