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Columbia Basin Land Protection Ass'n v. Kleppe

Citation: 6 ELR 20486
No. No. C-76-6, 417 F. Supp. 46/(E.D. Wash., 05/10/1976)

The court denies plaintiffs' motion for a preliminary injunction in this suit challenging the adequacy of the Bonneville Power Administration's (BPA) environmental impact statement for a proposed 500 kilowatt transmission line in Washington state and the validity of BPA's route choice for the project. Plaintiffs, who own dry and irrigated farmland which the proposed line will traverse, have clearly demonstrated that they will suffer irreparable harm if the project is permitted to proceed. The court's decision on the motion for a preliminary injunction therefore depends on the probability that plaintiffs will succeed on the merits. After considering plaintiffs' arguments, the court finds that such success is unlikely. While it remains an open question whether a substantive agency decisioncould be reversed if the court concluded that it was "arbitrary, capricious and an abuse of discretion" in light of information contained in the NEPA impact statement, Calvert Cliffs Coordinating Comm. v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971), Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 3 ELR 20045 (9th Cir. 1973), the BPA's route choice in this case was clearly based on legitimate economic considerations reflected in the EIS and thus cannot be overturned in any event. In addition, there is a high probability that the court would find at a hearing on the merits that the impact statement was prepared in accordance with the procedures required by NEPA. Plaintiffs are mistaken in urging that NEPA requires an intricate mathematical cost-benefit analysis in the EIS. Trout Unlimited v. Morton. 509 F.2d 1276, 1286-87, 5 ELR 20151 (9th Cir. 1974). Nor does BPA's failure to revise its procedures for impact statement preparation after issuance of the Council on Environmental Quality's Revised EIS Guidelines in 1973 render overy subsequent impact statement inadequate per se, as a matter of law, in view of BPA's determination that no revision of its procedures was necessary to conform them to CEQ's new Guidelines. The EIS in question considered all alternatives "reasonably reiated to the purposes of the project," and adequately responded to all the comments received from the public and other federal agencies, even though some of these responses are conclusory. Moreover, the statement does not deal with an illegally segmented project since the power line at issue will not be expanded within the foreseeable future (until the 1990's). The court also finds that although BPA's compliance with the requirements of the National Historic Preservation Act, 16 U.S.C. § 470f, was initially deficient, the agency did eventually fulfill its obligations under the Act.

The full text of this opinion is available from ELR (14 pp. $1.75, ELR Order No. C-1042).

Counsel for Plaintiffs
Richard Pierson
Steve Ryder
Thom, Mussehl, Navoni, Hoff & Pierson
3737 Bank of California Center
Seattle WA 98164
(206) 623-8433

Counsel for Defendants
Robert Sweeney, Asst. U.S. Attorney
P.O. Box 1494
Spokane WA 99210
(509) 439-3811

Neill, C.J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]