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Astoria, Port of v. Hodel

Citation: 9 ELR 20252
No. No. 75-3465, 595 F.2d 467/12 ERC 2044/(9th Cir., 03/05/1979) Aff'd

The Ninth Circuit Court of Appeals affirms a lower court's judgment, 5 ELR 20657, that a power supply contract for a proposed aluminum reduction plant is valid but unenforceable pending preparation by the Bonneville Power Administration (BPA) of an environmental impact statement (EIS) pursuant to the National Environmental Policy Act (NEPA). The district court correctly determined that the Port of Astoria lacked standing to challenge the contract because its alleged injuries from relocation of this plant site included only pecuniary losses and thus were not within the zone of interests protected by NEPA. Nor was the port a "local agency" deprived of its right under § 102(2)(C) of NEPA to comment on the EIS. The individual and organizational plaintiffs who reside or spend time near the proposed plant site, on the other hand, do have standing as a result of allegations that the project will result in ecological and aesthetic injuries to them. The power supply contract constitutes major federal action for NEPA purposes in two respects: first, it will lead to construction of the aluminum plant, and second, it represents the initial industrial "firm power contract" executed in conjunction with the BPA's proposed Phase 2 Hydro Thermal Power Program for regional power development and distribution. BPA must therefore prepare impact statements analyzing both construction of the plant and the transmission lines to it and the relation between this contract and Phase 2. Finally, the court rules that the lower court did not err by refusing to declare the contract void. By holding it unenforceable the court did in fact set it aside and preserve the environmental status quo. The case is remanded to the district court, which has retained jurisdiction to assess the adequacy of any EIS that is forthcoming from BPA.

Counsel for Plaintiffs
Donald F. Pearlman
Keane, Harper, Pearlman & Copeland
3500 First National Tower, Portland OR 97201
(503) 224-4100

Counsel for Defendants
Larry C. Gutterridge
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2740

Jack G. Collins, Ass't U.S. Attorney
506 U.S. Courthouse, Portland OR 97207
(503) 221-2761

James P. Rogers, Barnes H. Ellis, Frank Josselson
Davies, Biggs, Strayer, Stoel & Boley
900 SW Fifth Ave., Portland OR 97204
(503) 224-3380

Before KENNEDY and TANG, Circuit Judges, and JAMESON,* District Judge.