730 F.3d 1008
9th Cir.
2013
Read the full case

Background

  • The Northwest Power Act (16 U.S.C. §§ 839–839h) requires the Northwest Power and Conservation Council to adopt a regional conservation and electric power plan and a fish and wildlife program that protects, mitigates, and enhances fish and wildlife while assuring an adequate, efficient, economical, and reliable power supply.
  • The Council adopted a fish and wildlife program in 2009 (the 2009 Program) and later adopted the Sixth Northwest Power Plan (the Plan) in 2010, which incorporated the 2009 Program by reference.
  • NRIC challenged the Plan, arguing the Council failed to give "due consideration" to fish and wildlife in the power-plan process, omitted a required methodology for quantifying environmental costs and benefits from the draft Plan, and improperly included the Bonneville Power Administration’s (BPA) market-price-based cost estimate of the 2009 Program.
  • The Council had not published its Appendix P methodology in the draft Plan (it appeared first in the final Plan) and removed a lower replacement-cost estimate from the draft while retaining BPA’s higher $750–$900 million annual market-price estimate in the final Plan.
  • The Ninth Circuit reviewed the Plan under the Administrative Procedure Act (arbitrary and capricious standard), affirmed the Council on the due-consideration claim, but remanded for (1) notice-and-comment on the quantification methodology and (2) reconsideration (with a reasoned record) of including BPA’s market-price cost estimate.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether the Council failed to give "due consideration" to protection, mitigation, and enhancement of fish and wildlife when adopting the Plan NRIC: "Due consideration" requires the Council independently re-evaluate and potentially augment fish and wildlife measures (including reexamining the 2009 Program) in light of new conservation/resource estimates Council: Due consideration is satisfied by incorporating the 2009 Program, analyzing alternative resource scenarios, and assessing new resources’ environmental impacts Held: Affirmed for Council — due consideration applies mainly to future conservation/resource acquisitions (BPA implementation), and does not require re‑opening the 2009 Program in this Plan
Whether the Council violated APA notice-and-comment by omitting the methodology for quantifying environmental costs and benefits from the draft Plan NRIC: Omission denied public participation on a statutorily required element and was procedurally unlawful Council: Omission was an "unfortunate error" and harmless because methodology was self-evident or would not have changed outcome Held: Remand — omission was not shown to be harmless; Council must publish the methodology for public comment and adoption
Whether the substantive methodology in Appendix P is arbitrary or inadequate NRIC: Appendix P fails to provide a rational method for calculating quantifiable environmental costs and benefits Council: Methodology choice is technical and entitled to deference; court should not substitute its judgment Held: Not decided on merits — court declined to address substance because procedural remand may alter methodology
Whether inclusion of BPA’s market-price cost estimate of the 2009 Program was arbitrary and harmful NRIC: Inclusion of the $750–$900M estimate (and removal of a lower replacement-cost estimate) was unexplained, arbitrary, and will skew future planning Council: BPA estimate was informational, had no bearing on Plan development, and its inclusion was not arbitrary Held: Remand — Council’s unexplained retention of BPA’s higher estimate (and removal of the alternative) was arbitrary; Council must reexamine and support any cost‑estimate choice in the record

Key Cases Cited

  • Nw. Res. Info. Ctr. v. Nw. Power Planning Council, 35 F.3d 1371 (9th Cir. 1994) (background on Power Act purpose and salmon/hydropower conflict)
  • Seattle Master Builders Ass’n v. Pac. Nw. Elec. Power & Conservation Planning Council, 786 F.2d 1359 (9th Cir. 1986) (deference to Council methodology choices in power plans)
  • Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520 (9th Cir. 1997) (agency interpretation and Power Act context)
  • Aluminum Co. of Am. v. Bonneville Power Admin., 903 F.2d 585 (9th Cir. 1989) (BPA role in implementing Council plans)
  • Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary and capricious standard; need for reasoned explanation)
  • Sagebrush Rebellion, Inc. v. Hodel, 790 F.2d 760 (9th Cir. 1986) (harmless-error standard in rulemaking)
  • Cal. Wilderness Coal. v. U.S. Dep’t of Energy, 631 F.3d 1072 (9th Cir. 2011) (presumption of prejudice and caution applying harmless-error in notice-and-comment context)
  • Greater Yellowstone Coalition v. Lewis, 628 F.3d 1143 (9th Cir. 2010) (agency failure to consider an aspect of the problem)
  • Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir. 1988) (avoid interpretations that render statutory provisions redundant)
  • Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229 (9th Cir. 2001) (record must support agency’s reasoned evaluation)
  • Shinseki v. Sanders, 556 U.S. 396 (2009) (burden of showing prejudicial error is not onerous)
Read the full case