Seattle Master Builders Ass'n v. Pacific Northwest Electric Power & Conservation Planning Council

A group of home builders and other industry representatives filed an original petition in this court seeking to strike down as unconstitutional both the Pacific Northwest Electric Power and Conservation Planning Council and the Council’s 1983 Northwest Conservation and Electric Power Plan.

We have jurisdiction under the Pacific Northwest Electric Power Planning and Conservation Act, Pub.L. 96-501, 94 Stat. 2697, 16 U.S.C. § 839 et seq. (1982) (the Act) and we uphold both the constitutionality of the Pacific Northwest Electric Power and Conservation Planning Council, a policy-making body established by that Act, and the validity of the Council’s 1983 Northwest Conservation and Electric Power Plan.

Petitioners seek relief against two entities: the first is the United States government, which has intervened on behalf of the Bonneville Power Administration (BPA), an agency of the United States Department of Energy. 1 The second is the Council itself. BPA is statutorily charged with the production, marketing and distribution of electric power in the Pacific Northwest. See Bonneville Project Act, 16 U.S.C. § 832a. See generally BPA, Columbia River Power for the People: A History of…

dissenting:

This ease raises a novel issue under the Appointments Clause of the United States Constitution. We must consider whether Congress may delegate certain federal authority to a body, acting through state-appointed officers, or whether such responsibilities must be reserved to a properly constituted federal agency acting through constitutionally appointed executive officials.

At issue is the constitutionality of the method of selecting the members of the Pacific Northwest Electric Power and Conservation Planning Council. Because I conclude that the method of selecting the members of the Council violates the Appointments Clause, I respectfully dissent.

I

Background

In 1937, Congress created the Bonneville Power Administration (“BPA”), a federal agency charged with the production, marketing, and distribution of electric power in the Pacific Northwest. In 1980, Congress created the Pacific Northwest Electric Power and Conservation Planning Council (“Council”), which is responsible for promulgating a regional conservation and electric power plan. Pacific Northwest Electric Power Planning and Conservation Act (“the Planning Act”), 16 U.S.C. §§ 839 -839h. The Council is…