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Natural Resources Defense Council v. Hodel

Citation: 7 ELR 20662
No. No. 75-344, 435 F. Supp. 590/10 ERC 1378/(D. Or., 07/01/1977)

The court grants summary judgment to plaintiffs, holding that the Bonneville Power Administration (BPA) must prepare an environmental impact statement (EIS) on its long-range plan to construct electric generating facilities in the Pacific Northwest. In 1968, the Joint Power Planning Council, a group of public and private utilities and BPA, devised what is known as Phase 1 of the Hydro-Thermal Power Program (HTPP) to meet the region's electricity needs through 1981. Under HTPP, the utilities would supply thermal, base-load plants while BPA would supply peaking hydroelectric plants and transmission facilities. Phase 2 of HTPP, agreed upon in 1973, envisioned construction of more generating facilities to meet electricity requirements through 1986. BPA has never acknowledged that an EIS on Phase 2 is required by the National Environmental Policy Act (NEPA). Plaintiffs claim that Phase 2 is a major federal action that will significantly affect the environment and therefore requires BPA to file an EIS.The court holds that defendants' contentions that material issues of fact exist which preclude summary judgment are answered in the negative by Port of Astoria v. Hodel, 5 ELR 20657. Moreover, even though financing arrangements have changed since the conception of Phase 2, it nonetheless requires construction of new generating facilities; therefore, no dispute exists as to the substance of Phase 2. Phase 2 is major and federal because the construction of generating and transmission facilities involves billions of dollars, and BPA plays a pivotal role in HTPP and Phase 2. Also, Phase 2 is a proposal, because the Pacific Northwest is an identifiable region to which Phases 1 and 2 specifically apply for purposes of electric power planning. It is not enough that BPA has prepared an EIS on individual transmission or hydroelectric facilities; only a programmatic statement on Phase 2 will satisfy NEPA.

Plaintiffs are entitled to summary judgment but the proper form of injunctive relief must await a conference of the parties.

Counsel for Plaintiff
John Roger Beers
Natural Resources Defense Council
2345 Yale St., Palo Alto CA 94306
(415) 327-1080

Joe D. Bailey
Schwenn, Bradley, Batchelor & Bailey
139 N.E. Lincoln, Hillsboro OR 97123
(503) 648-6677

Counsel for Defendants
Sidney I. Lezak, U.S. Attorney; Jack G. Collins, Thomas C. Lee, Ass't U.S. Attorneys
P.O. Box 71, Portland OR 97207
(503) 221-2101