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Sierra Club v. Andrus

Citation: 9 ELR 20652
No. No. 79-234, (D. Or., 07/20/1979)

The court dismisses an action challenging the issuance of rights-of-way for construction of an electric transmission line over federal lands after ruling that the Bureau of Land Management's (BLM's) final environmental impact statement (EIS) satisfies the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009. Plaintiffs sought to block construction of the Pacific Power & Light Company's (PP&L's) proposed Midpoint-Malin 500-kilovolt line across BLM lands in southern Oregon and Idaho, arguing that the final EIS is inadequate and that a supplemental EIS is required prior to issuance of the rights-of-way. In preparing the EIS, federal officials explored several alternatives, including the possibility of upgrading existing transmission lines, which were rejected as not presenting feasible alternatives. BLM also consulted with the Bonneville Power Administration (BPA) on the draft EIS. A proposal by BPA to upgrade the existing transmission line, owned by Idaho Power Company, to serve PL&L needs was deemed by Idaho Power officials not to be possible before 1985, and the court finds that a facility is needed by 1981. Furthermore, any delay would cause substantial cost penalties. The final EIS was published in August 1977 and approved by the Secretary of the Interior on June 21, 1978. On November 21, 1977, the Secretary of the Interior approved the proposed route for the transmission line. Plaintiffs filed suit on March 12, 1979.

The court concludes that the final EIS satisfies NEPA's requirements because it adequately discusses the alternatives to PP&L's proposal that were available at the time of its preparation. The EIS's consideration and rejection of the alternative of upgrading existing transmission lines as not feasible was proper. Friends of the Earth v. Coleman, 513 F.2d 295, 5 ELR 20259 (9th Cir. 1975); Lathan v. Brinegar, 506 F.2d 677, 4 ELR 20802 (9th Cir. 1974). Furthermore, the court concludes that even if the final EIS were not adequate in the light of current information, the court is limited to reviewing it in the light of information available to BLM at the time of its filing. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 8 ELR 20288 (1978). Thus, the final EIS is adequate because the information available at the time properly led BLM to conclude that the upgrading alternative was not feasible. Failure to prepare a supplemental EIS to discuss the BPA proposal is not a violation of NEPA because given the timeframe of the basic proposal it was not a feasible alternative. Although § 503 of the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1763, ELR STAT. & REG. 41472, encourages using rights-of-way in common with other facilities where practical, it is not practical in this instance; consequently, there has been no violation of FLPMA. Finally, the court finds that if plaintiffs were granted the relief they seek, completion of the PP&L line would be significantly delayed, subjecting PP&L and its customers to potential power shortages and substantial cost penalties that might not have resulted had the suit been brought at an earlier date. Because of their delay in bringing this suit, plaintiffs unreasonably delayed a determination of their rights to the detriment of PP&L, and the suit is thus barred by the doctrine of laches. The complaint is dismissed with prejudice.

The full text of this opinion is available from ELR (16 pp. $2.00, ELR Order No. C-1187).

Counsel for Plaintiffs
Rhidian M. Morgan
2546 S.W. Arden Rd., Portland OR 97201
(503) 223-5761

James S. Coon
611 Century Tower, 1201 S.W. 12th St., Portland OR 97205
(503) 228-2373

J. Jeffrey Adams
918 S.W. Yamhill St., Portland OR 97205
(503) 222-9641

Counsel for Federal Defendants
Sidney I. Lezak, U.S. Attorney; Thomas C. Lee, Ass't U.S. Attorney
506 U.S. Courthouse, P.O. Box 71, Portland OR 97207
(503) 221-2153

Gary I. Wilburn
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4077

Counsel for Defendant Pacific Power & Light Co.
Charles H. Haberningg, Richard D. Bach, Richard A. Hayden, Jr., Pamela L. Jacklin
Rives, Bonyhadi & Smith
1400 Public Service Bldg., 920 S.W. 6th Ave., Portland OR 97204
(503) 224-3920

Real, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]