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Forelaws on Bd. v. Johnson

ELR Citation: 14 ELR 20839
Nos. No. 82-7319, 743 F.2d 677/(9th Cir., 09/25/1984)

The court holds that the Pacific Northwest Power Planning and Conservation Act's (Regional Act's) short deadlines for offering power contracts do not excuse the Bonneville Power Administration (BPA) from complying with the National Environmental Policy Act (NEPA) in offering contracts; however, the court declines to set aside contracts made without an environmental impact statement (EIS). The court first holds that plaintiff Forelaws, as a group with members who consume BPA power, has standing. The court also rules that the suit is timely, since plaintiffs' failure to file suit within the 90-day Regional Act deadline was due solely to the court clerk's mistaken rejection of plaintiffs' original complaint.

Turning to the merits, the court rules that BPA should have prepared an EIS before making its contract offers. The "Environmental Report" BPA prepared did not have the detailed analysis of adverse consequences and alternatives required in an EIS. The court rejects BPA's arguments that making the contract offers had no significant effect on the environment and holds that the contracting does not fall within the non-discretionary act exemption from NEPA recognized by other circuits. BPA exercised a great deal of discretion in setting contract terms that will have long-term, significant effects on regional energy plans, energy conservation, and fish and wildlife in the region. The court also rejects BPA's argument that the deadline for offering contracts set by the Regional Act precluded NEPA review. NEPA requires compliance to the fullest extent possible; other statutes should not be lightly read to preempt NEPA. Nothing in the Regional Act expressly preempts or conflicts with NEPA. The Regional Act gave BPA nine months to formulate contract offers and commence negotiations. BPA working under unnecessarily narrow construction of the Regional Act, spent six of the nine months negotiating with potential customers, leaving insufficient time for EIS preparation. Instead, BPA could have spent the time preparing an EIS, extended initial offers without prior negotiations, and commenced negotiations with the EIS for guidance. Given BPA's duty under the Regional Act to conserve energy and protect fish and wildlife, and BPA's failure to consider relevant environmental factors and alternative courses of action, its offering of the contracts was arbitrary and capricious, violating the Administrative Procedure Act as well as NEPA.

However, the court declines to enjoin operation of the contracts. The Regional Act, reflecting Congress' sense of urgency in settling access to BPA power, mandated the contracts be in place by September 1982. In this case, NEPA must bend accommodate the Regional Act. By the contracts' terms, BPA may amend them to accommodate environmental concerns. BPA must prepare an EIS to guide its future actions.

Counsel for Plaintiffs
Gregory Kafoury
Kafoury & Hagen
320 SW Stark St., Room 202, Portland OR 97204
(503) 24-2647

Counsel for Defendants
David J. Adler
Office of the General Counsel
Bonneville Power Administration, P.O. Box 3621, Portland OR 97208
(503) 230-3000

Before SCHROEDER, FARRIS, and REINHARDT, Circuit Judges.