Northwest Environmental Defense Center v. Bonneville Power Administration

concurring in part and dissenting in part:

I concur in Parts I and II of the majority opinion. I agree that the actions taken by BPA as of the time of the filing of the complaint did not constitute a violation of the agency’s equitable treatment obligation under the Northwest Power Act. I do not agree, however, that BPA satisfied the procedural requirements of the National Environmental Policy Act.

1. An Environmental Impact Statement-Was Necessary. — The National Environmental Policy Act, or NEPA, “is our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1 (c). NEPA contains “ ‘action-forcing’ provisions to make sure that federal agencies act according to the letter and spirit of the Act.” Id. Among these provisions is the requirement that agencies must prepare environmental impact statements whenever “substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor.” LaFlamme v. FERC, 852 F.2d 389, 397 (9th Cir.1988) (quoting City & County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir.1980)) (emphasis in original) (internal quotation marks omitted). This requirement is an…

Opinion by Judge BRUNETTI; Dissent by Judge REINHARDT.

BACKGROUND

Petitioners representing environmental and fishing interests 1 challenge final actions of the Bonneville Power Administration (BPA) 2 in these consolidated petitioners for review. In 1990, BPA entered into agreements with British Columbia Hydro and Power Authority (BC Hydro) and several electric utilities, known as the Mid-Columbia Participants, 3 governing rights to water stored behind hydroelectric dams on the Columbia River system in Canada. Petitioners argue that BPA ignored its statutory duty to provide equitable treatment for fish and wildlife on the river by entering into these agreements. Petitioners also argue that BPA violated the National Environmental Policy Act by failing to prepare an Environmental Impact Statement.

There is no single “Law of the River” on the Columbia. Rather, as we consider BPA’s decision to enter into these two agreements we must navigate a maze of overlapping treaties, laws, and regulations, which together *1525 attempt to balance the varied interests on the river. Prominent among the laws on the river are the United States-Canada Columbia River Treaty, the Northwest Power Act,…