County of Missoula v. Johnson

No. CV-81-35-BU (D. Mont. January 28, 1982)

ELR Digest

The district court rules that the Bonneville Power Administration's (BPA's) proposed construction of transmission lines from Townsend, Montana to Spokane, Washington for the proposed Colstrip, Montana power project does not violate the Montana Major Facility Siting Act or the National Environmental Policy Act (NEPA). Initially, the court rules that three Montana counties, the City of Missoula, and four individual property owners lack standing. They allege insufficient harm and the counties' alleged economic injuries are not within the zone of interests protected under NEPA. Next, the court denies plaintiffs' request for a preliminary injunction against the construction of a proposed transmission line. Any potential irreparable injury to plaintiffs is substantially outweighed by the public interest in construction of the transmission line and by the possible power shortages that could result from a construction delay.

Turning to the merits, the court rules that Congress, by enacting legislation allocating funds for the Colstrip project, had also authorized construction of the transmission lines. The court rejects plaintiffs' contention that BPA was without authority to build a transmission line to Townsend, which is located east of the continental divide, because the Federal Columbia River System Power Act allows the agency to construct facilities only in the Pacific Northwest. The legislative history of the Act evinces a clear congressional intent to authorize construction by BPA outside the Pacific Northwest, provided that funds are specifically approved by Congress.

The court also rules that, while the Federal Land Policy and Management Act requires defendants to comply with the substantive requirements of the Montana Major Facility Siting Act, they need not obtain a state certificate of environmental compatibility because such a requirement would give the state an impermissible veto power over a federal project. Turning to defendants' compliance with NEPA, the court upholds defendants' segmentation of the environmental impact statements (EISs) prepared in connection with the proposed Colstrip project. The two segments have some independent utility and segmentation has not unreasonably hampered the consideration of alternatives. It also rules that defendants provided adequate notice of the EIS public meetings and upholds the adequacy of the federal Colstrip EIS. Finally, the court rules that defendants' failure to provide Congress with a completed EIS at the time it was considering the Colstrip appropriations did not violate NEPA since defendants never submitted a formal legislative funding proposal to Congress and Congress has the authority to fund a BPA project prior to completion of the EIS.

The full text of this opinion is available from ELR (23 pp. $3.50, ELR Order No. C-1292).

Counsel for Plaintiffs
Ronda L. Sandquist, Special Ass't Attorney General
Dep't of Natural Resources & Conservation
32 S. Ewing, Helena MT 59601
(406) 449-3712

Sheri K. Sprigg, Ass't Attorney General
Capitol Bldg., Helena MT 59620
(406) 449-2026

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

Allen R. McKenzie, Ass't U.S. Attorney
167 Fed. Bldg., Butte MT 59701
(406) 723-6561

Counsel for Defendant-Intervenor
Edward Bartlett
Montana Power Co.
40 E. Broadway St., Butte MT 59701
(406) 723-5421

John L. Peterson
27 W. Broadway St., Butte MT 59701
(406) 782-1221

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]