ELR Citation: ELR 20168
No(s). s. 83-7444 et al (9th Cir. Dec 5, 1985)

The court holds that owners of a hydroelectric project granted a licensing exemption in violation of the National Environmental Policy Act (NEPA) are not entitled to an injunction allowing operation of the project while an environmental assessment of the project is prepared. The court notes that usually it only allows an action to proceed in the face of a NEPA violation where halting the action would cause environmental harm. This rule does not apply to the instant situation, even though allowing the project to proceed might not cause any irreparable harm. The court further holds that no direct statutory conflict exists between NEPA and the Energy Security Act, under which the project was approved. Although the Act encourages expeditions development of hydropower, it sets no timetable inconsistent with NEPA compliance. Also, the court rejects as unproven the owners' contention that a shutdown will cause them irreparable financial harm.

Turning to motions made by opponents of the project, the court denies as moot a motion to enjoin operation of the plant pending decision on the just-decided owners' petition and denies as premature motions for permanent injunctions against the project.

[The original opinion of the court appears at 15 ELR 20505.]

Counsel for Petitioners
Allen L. Johnson, Bill Kloos
Sullivan, Vosselson, Johnson & Kloos
915 Oak St., Suite 101, Eugene OR 97401
(503) 687-1004

David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5580

Counsel for Respondents
Joshua Z. Rakach
Federal Energy Regulatory Commission
825 N. Capitol St. NW, Washington DC 20002
(202) 357-5200

Stephen T. Janik
Ball, Janik & Novak
One Main Pl., 101 SW Main St., Portland OR 97204
(503) 228-2525

R. Keith Guthrie
Van Ness, Feldman, Sutcliffe, Curtis & Levenberg
1050 Thomas Jefferson St. NW, 7th Fl., Washington DC 20007
(202) 331-9400

Before Alarcon and Norris, JJ.