Sierra Club v. Hodel

No. 740-73C2 (W.D. Wash. October 3, 1974; November 15, 1974)

The court denies a motion to reconsider its grant of summary judgment against plaintiffs who sought to enjoin the Bonneville Power Administration (BPA) from furnishing electrical power to a magnesium ferrosilicon plant recently under construction. Plaintiffs' contention that BPA's NEPA impact statement for the construction of a transmission line and substation must also examine the plant's effect on the environment is in error; BPA does not have licensing or regulatory authority over the plant's operations and the power supply relationship is not sufficient to characterize plant operations as part of a federal project. Plaintiffs' assertion that the defendant has violated the Clean Air Act because the plant will generate pollution exceeding national air quality standards and will cause "significant deterioration" of air quality is also mistaken. This allegation relates to anticipated air pollution which, if it occurs, will be the responsibility of the plant and not properly attributable to the BPA's activities. The court notes that the state Department of Ecology has licensed the proposed plant's operations under the state implementation plan and prepared an EIS under the state Environmental Policy Act, and points out that plaintiffs have not challenged the adequacy of either of these actions. The court also denies a motion for an injunction pending appeal.

Counsel for Plaintiffs
William D. Rives
Davis, Wright, Todd, Reise & Jones
4200 Seattle-First Bank Building
Seattle, Wash. 98154

Counsel for Defendant
Thomas C. Lee
Department of Justice
Washington, D.C. 20530

Stan Pitkin U.S. Attorney
Bruce D. Carter Asst. U.S. Attorney
P.O. Box 1227
Seattle, Wash. 98111

[5 ELR 20031]

Neill, J.

ORDER DENYING MOTION FOR RECONSIDERATION

Plaintiff has moved for reconsideration of the Court's order granting defendant's Motion for Summary Judgment. The Court was and is of the opinion that Amendatory Agreement number 1 between Bonneville Power Administration and Alcoa Aluminum was a "major federal action significantly affecting the quality of the human environment" under § 102 (2)(c) of the National Environmental Policy Act. Concomitant with that federal action is the affirmative duty to prepare and distribute to the public and interested agencies, a statement concerning the effect of proposed activities on the environment.

Such a statement was prepared and distributed by the defendant. Plaintiff objects to the scope of the statement for failure of defendant to prepare a separate impact statement on the effect of the plant on the environment.

The Court ruled that the contract itself is not in violation of public policy or statute. Precedent to the sale of power, Bonneville demanded that Alcoa meet all environmental standards. Two separate environmental studies were made on the probable effect of the facility. The project passed the rigorous scrutiny of the Washington Department of Ecology and was thereby approved. It is clear that all environmental factors were thoroughly considered by Bonneville.

Plaintiff states that the ruling was unclear with respect to Executive Order #11514, 35 Fed. Reg. 4247, March 5, 1970, which imposes an affirmative duty on Bonneville to monitor, evaluate and control its powersale contracts and take measures necessary to protect and enhance environmental quality. Alcoa's contractual obligation to meet all environmental standards prior to the allocation of power fulfills this mandate.

WHEREFORE, plaintiff's Motion for Reconsideration is DENIED.

MEMORANDUM AND ORDER

Plaintiffs have moved for an injunction pending appeal pursuant to Rule 62(c), Federal Rules of Civil Procedure. The Court has reviewed the memoranda and files herein from which it appears to the Court that:

Plaintiffs sought to enjoin defendant from furnishing electrical power to a magnesium-ferrosilicon plant presently under construction near Addy, Washington by Northwest Industries, Inc., alleging defendant has not complied with the Clean Air Act, 42 U.S.C. § 1857 et seq., and the National Environmental Policy Act, 42 U.S.C. § 4331 et seq., as well as Executive Order 11514, 35 Fed. Reg. 4247.

Plaintiffs assert that the Northwest Industries plant will generate air pollution which will exceed the national air quality standards established under the Clean Air Act, as well as cause "significant deterioration" of the air quality in the Colville Valley; that truck traffic and the operation of plant mines will contribute to this air pollution; that the mining operations will also impair the aesthetic enjoyment of the Colville Valley by stripping away the hillsides, timber and vegetation; and that the general effect of establishment of the plant will be to trasnform a quiet agricultural valley into an industrial center. Additional allegations relate to the expected consumption of fuel oil and natural gas by the plant and generation of noise.

Further, plaintiffs complain that the projected consumption of electrical energy by the plant will diminish the amount of hydroelectrically-generated energy available to the public and thereby cause the indirect effect of additional air pollution from increased operation of thermal generating plants.

At the hearing this Court ruled that this suit against defendant is one step removed from either the proper parties-defendant or the correct issues for redress of plaintiff's alleged grievances. Specifically, the complaint and other papers before the Court reveal that plaintiffs' allegations as to air pollution do not assert pollution to be caused by, or even properly attributable, directly or indirectly, to the activities of this defendant. Rather, the allegations summarized above relate to anticipated air pollution which, if it ever occurs, will be solely the responsibility of Northwest Industries, and the other allegations are too vague and remote from the relief sought in the complaint to provide any basis for such relief. Further, the only section of the Clean Air Act which creates any private right of action is § 304(a), (42 U.S.C. 1857h-2). This section authorizes suits only against those who are "alleged to be in violation of (A) an emission standard or limitation under this Act or (B) an order issued . . . with respect to such a standard or limitation." The complaint is devoid of any allegations of violations, present or future, of any such "emissions standards or limitations" or "orders." See Plan [5 ELR 20032] for Arcadia, Inc. v. Anita Associates et al, __ F.2d __, (9th Cir. July 10, 1974). Nothing in the National Environmental Policy Act or any of the other statutes cited authorizes suits brought against alleged Clean Air Act violations or vitiates in any way the limitations upon such actions imposed by the Clean Air Act itself.

As to allegations of environmental effects from the plant, the public agencies vested by law with environmental review authority over Northwest Industries' operations have approved and authorized the proposed plant. Plaintiffs have not sought administrative or judicial review of these decisions.

The record shows that, as to air pollution, the State of Washington Department of Ecology has licensed the plant operations. The State Order approving establishment of the plant operates as Federal approval pursuant to the Clean Air Act. 42 U.S.C. 1857(c)(5) and 40 CFR 52.2473. There has been no evidence or showing that the State Order fails to conform to the approved State implementation plan. Plaintiffs do challenge the correctness of the State's order, but such challenge is not against the proper party, namely, the State Department of Ecology. Further, plaintiffs have had opportunities to proceed directly against the State agency's licensing of the plant under the Clean Air Act, but instead have instituted this collateral attack. By its Order of Dismissal this Court declines to review the State Order of Approval.

The State Department of Ecology, the State Department of Natural Resources, and the Stevens County planning authorities have exercised environmental review powers over the non-air pollution environmental effects of the plant operations. These reviews included the preparation of lengthy "impact statements" by State and County agencies. These impact statements promulgated pursuant to the Washington Environmental Policy Act, included analyses of all of the non-air pollution environmental effects, as well as of the air pollution effects.

In dismissing this action this Court determined that defendant is not required to duplicate the previous impact statements. Defendant does not have licensing or regulatory authority over Northwest Industries' operations. Further, Bonneville's power supply relationship to the plant is not sufficient to characterize plant operations as part of a Federal project. National Forest Preservation Group v. Butz, 485 F.2d 408 (9th Cir. 1973) is distinguishable in that the environmental effects flow from Northwest Industries' direct action and from the State and Federal environmental licenses accorded the plant. The supply of electric power by defendant is further removed from the plant's environmental impacts and the situation is more nearly analgous to that in Kings County Economic Community Development Ass'n v. Hardin, 478 F.2d 478, 480 (9th Cir. 1973).

The Court determined that this defendant's impact statement, addressed to the construction of the transmission line and substation, adequately covers the Federal action, in that the statement contains sufficient discussions of all of the specific factors, including alternatives, required by NEPA 42 U.S.C. 4332.

Provisions in the agreement between defendant and Northwest Industries condition the obligation of defendant to provide electrical service to the plant upon Northwest Industries' compliance with all legal requirements relating to pollution control. Thus, the relationship of defendant, Northwest Industries, and the environmental regulatory agencies are placed in proper perspective, and shows that defendant has adequately considered the environmental impacts of the plant.

This Court is not convinced that there is here a "commitment" of a large amount of electrical energy to the plant resulting in the aftereffects feared by plaintiff. The additional power which may be delivered is "interruptible power," which is generated and delivered only when a natural surplus in hydroelectric generating capacity allows for the generation of such power over and above the normal commitments of power supply which defendant is required to assure to the utilities it serves. No additional "firm" or "modified firm power" is committed to the plant by the agreement between defendant and Northwest Industries.

This Court having now considered the plaintiffs' Motion for Injunction pending appeal in light of the foregoing, said Motion is DENIED.