ELR Citation: 43 ELR 20217
No(s). 10-72104 (9th Cir. Sep 18, 2013)

The Ninth Circuit upheld the Northwest Power and Conservation Council's 20-year plan to provide adequate and reliable energy at the lowest economic and environmental cost to the Northwest. The Council, established under the Pacific Northwest Electric Power Planning and Conservation Act, is an interstate agency composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington. An environmental group alleged that in adopting the plan, the Council failed to give "due consideration" to the accommodation of fish and wildlife interests in the Columbia River Basin by setting forth biological objectives, principles, and strategies designed to benefit fish and wildlife without prescribing specific operations in the plan. The group argued that the Council must reconsider the measures adopted in its 2009 fish and wildlife program when it formulates a new power plan in order to satisfy the Act's due consideration requirement, and that this obligation stands separate from the requirement that a power plan incorporate a fish and wildlife program. But the group failed to point to any part of the Power Act that required the Council to reconsider fish and wildlife measures in light of its evaluation of the regional power system from the subsequent power planning process. Although the Power Act does not appear to prohibit such reconsideration, the Council's duty of providing due consideration to fish and wildlife interests in setting a general agenda for future conservation and resource acquisition does not require reconsideration of the 2009 fish and wildlife program. The Power Act's due consideration requirement is aimed specifically at new power-resource acquisitions, not at existing resources. However, the court remanded the power plan to the Council for the limited purposes of allowing public notice and comment on the proposed methodology for determining quantifiable environmental costs and benefits, and reconsidering the inclusion in the plan of a market price-based estimate of the cost of accommodating fish and wildlife interests. Northwest Resource Information Center, Inc. v. Northwest Power & Conservation Council, No. 10-72104, 43 ELR 20217 (9th Cir. Sept. 18, 2013).