Northwest Resource Information Center, Inc. v. Northwest Power & Conservation Council

The present case is the latest round of environmental litigation in the 33-year history of the Pacific Northwest Electric Power Planning and Conservation Act (the Power Act), 16 U.S.C. §§ 839 -839h. That statute established the Northwest Power and Conservation Council (the Council), an interstate agency composed of state-appointed representatives from Idaho, Montana, Oregon, and Washington that Congress tasked with promulgating both “a regional conservation and electric power plan” and “a program to protect, mitigate, and enhance fish and wildlife.” 16 U.S.C. § 839b(d)(l), 839b(h)(l)(A).

The Power Act was designed to resolve the conflict between the Columbia River Basin’s two great natural resources: hy-dropower and salmon. Nw. Res. Info. Ctr. v. Niv. Power Planning Council, 35 F.3d 1371 , 1375, 1377 (9th Cir.1994). Over the years, the Council’s efforts to fulfill its duties have been challenged in federal court by various regional stakeholders, including environmental groups, power companies, state governments, Indian nations, and power-consuming industrial interests. See id.; Seattle Master Builders Ass’n v. Pac. Nw. Elec. Power & Conservation Planning Council, 786…

concurring in part and dissenting in part:

“No passion in the world is equal to the passion to alter someone else’s draft.” 1 This passion has proven irresistible to the majority, who today claims the power to edit out a factual statement in an agency’s work product if it suspects the statement or turn of phrase might subtly promote a particular point of view.

The work product at issue here is a regional conservation and electric power plan, which Congress has directed the Pacific Northwest Electric Power and Conservation Planning Council (the Council) to prepare and adopt. 16 U.S.C. § 839b(d)(l). Under the Northwest Power Act, the Council must prepare a plan that provides a scheme “for implementing conservation measures and developing resources ... with due consideration by the Council for ... [the] protection, mitigation, and enhancement of fish and wildlife.” Id. § 839b(e)(2)(C). The plan must include a number of elements, including a program “to protect, mitigate, and enhance fish and wildlife” on the Columbia River, id. §§ 839b(h)(l)(A), (e)(2)(F), and “a methodology for determining quantifiable environmental costs and benefits,” id. § 839b(e)(3)(C). Once the plan is…