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National Wildlife Fed'n v. Federal Energy Regulatory Comm'n

Citation: 17 ELR 20111
No. No. 84-7325, 801 F.2d 1505/(9th Cir., 09/30/1986)

The court holds that the Federal Energy Regulatory Commission's (FERC's) decision to issue seven preliminary hydroelectric power permits in the Salmon River Basin pursuant to the Federal Power Act (FPA) without first developing a comprehensive plan for the basin is not supported by any evidence on the record, and FERC's failure to consider the fish and wildlife program promulgated by the Northwest Planning Council violated the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act). The court first holds, in a note, that the preliminary permits are final orders subject to review under the FPA. The court also holds in the same note, that petitioners, an Indian tribe and two wildlife protection organizations, have standing since they have alleged injury-in-fact resulting from FERC's failure to develop a comprehensive plan before issuing the permits. The court then holds that FERC's decisionmaking process does not meet the FPA's requirement that the Commission's decisions be supported by substantial evidence, and notes that as a consequence it cannot determine based on the record whether FERC's decision is arbitrary, capricious, or otherwise not in accordance with law under the Administrative Procedure Act. The court holds that the FPA does not necessarily require that a comprehensive plan be developed prior to issuing a preliminary permit. Although a central feature of the FPA is Congress' commitment to coordinated study and comprehensive planning along a river system prior to authorizing hydroelectric projects, the Act contains no express provision requiring such a plan before issuance of a preliminary permit. A preliminary permit's primary purpose is to induce permittees to collect the information necessary for the licensing of the project, but a permittee may be able to gather such information without developing a comprehensive plan. The court holds that FERC's determination that no plan or additional studies were needed in this case is unsupportable since the Commission did not address the issues at all on the record, despite extensive evidence received at hearings in support of the need for a comprehensive plan, study of cumulative impacts, imposition of uniform study guidelines, and collection of baseline environmental data.

The court holds that FERC's failure to consider the fish and wildlife program promulgated by the Northwest Planning Council violated the clear terms of the Northwest Power Act. The Commission did not take the program into account at each relevant stage of the permitting decisionmaking process as required by the Act. The court rejects FERC's contention that the only relevant stage is licensing, not permitting.

The court declines to rule on whether FERC violated its duty under the Northwest Power Act to protect and enhance fish and wildlife by not considering the cumulative impacts of hydropower development on fish and wildlife before issuing the preliminary permits, since the Commission must consider the Council's program on remand. The court also declines to rule on petitioners' argument that an environmental assessment or an environmental impact statement should have been prepared prior to the permit's issuance, since the issue may become moot on remand. Finally, the court declines to rule on the Indian tribe's claim that FERC interfered with the tribe's treaty fishing rights.

[A related case appears at 17 ELR 20117.]

Counsel for Petitioners
Terence L. Thatcher
National Wildlife Federation
708 Dekum Bldg., 519 SW 3d Ave., Portland OR 97204
(503) 222-1429

Counsel for Respondent
Phillip Chadsey
Stoel, Rives, Boley, Fraser & Wyse
900 SW Fifth Ave., Portland OR 97204-1268
(503) 224-3380

Robert R. Steenland
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2748

Before Alarcon and Stephens,* JJ.