Forelaws on Board v. Johnson

• Decision Date: 21 January 1985
• Docket Number: No. 82-7319,82-7319
• Citation: 743 F.2d 677
• Parties: , 14 Envtl. L. Rep. 20,839, 15 Envtl. L. Rep. 20,186 FORELAWS ON BOARD, an unincorporated association; and Lloyd Marbet, Plaintiffs, v. Peter JOHNSON, as Administrator of the Bonneville Power Administration, Department of Energy; James Edwards, as Secretary of the Department of Energy and the United States of America, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 677

743 F.2d 677

21 ERC 1850, 14 Envtl. L. Rep. 20,839,

15 Envtl. L. Rep. 20,186

FORELAWS ON BOARD, an unincorporated association; and Lloyd

Marbet, Plaintiffs, v. Peter JOHNSON, as Administrator of the Bonneville Power

Administration, Department of Energy; James

Edwards, as Secretary of the Department

of Energy and the United

States of America, Defendants.

No. 82-7319.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 6, 1984.

Decided Sept. 25, 1984.

As Amended Jan. 21, 1985.

Linda K. Williams, Portland, Or., for plaintiffs.

George M. Galloway, Washington, D.C., for Pacific Power & Light Co.

Eric Redman, Seattle, Wash., for Martin Marietta Aluminum.

Frank W. Ostrander, Portland, Or., for Northwest Power Planning Council.

David J. Adler, Portland, Or., for Peter Johnson, Dept. of Energy.

Original Proceeding to Review the Bonneville Power Administration Offer of Initial Contracts Pursuant to the Pacific Northwest Electric Power Planning and Conservation Act.

Before SCHROEDER, FARRIS, and REINHARDT, Circuit Judges.

SCHROEDER, Circuit Judge.

This is a challenge to the Bonneville Power Administration's offers of long term contracts for power delivery pursuant to the Pacific Northwest Electric Power Planning and Conservation Act (Regional Act), 16 U.S.C. Sec. 839-839h (1982), without compliance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. Secs. 4321-4361 (1976). We have previously held that this is a review of final agency action which, under the Regional Act, must be filed originally in this court rather than in the district court. Forelaws on Board v. Johnson, 709 F.2d 1310 (9th Cir.1983) (Forelaws I).

Plaintiffs seek an order compelling the preparation of an Environmental Impact Statement and enjoining operation of the contracts. We hold that an Environmental Impact Statement is required and should be utilized in connection with consideration of any further amendments, to which NEPA will also apply and for which additional EIS's may be required. We decline, however, to enjoin operation of the contracts pending completion of the initial EIS.

Statutory Background

On December 5, 1980, the Regional Act became law. It is a "unique piece of energy legislation" designed to allocate the finite supply of inexpensive hydroelectric power, generated on the Columbia River System, among competing consumers as well as to provide for the acquisition of new energy resources. See Central Lincoln Peoples' Utility District v. Johnson, 735 F.2d 1101, 1106 (9th Cir.1984). In the early 1970's, BPA, faced with increasing demand for low-cost hydroelectric power and possible power shortfalls, notified its nonpreference customers that their power contracts would not be renewed and informed its preference customers that it could not satisfy any load growth after 1983. Aluminum Co. of America v. Central Lincoln Peoples' Utility District, --- U.S. ----, 104 S.Ct. 2472, 2477-78, 81 L.Ed.2d 301 (1984). In response to the resulting confusion, Congress passed the Regional Act, which was designed to avert "regional civil war" by allocating BPA's finite supply of hydroelectric power between competing consumers and by providing for the acquisition of new energy resources. See Central Lincoln Peoples' Utility District v. Johnson, 735 F.2d 1101, 1106 (9th Cir.1984). The Regional Act required BPA to offer new long-term contracts to both preference and nonpreference customers "[a]s soon as practicable within nine months after December 5, 1980." 16 U.S.C. Sec. 839c(g)(1). Each customer was given one year from the date of the offer to accept the contract. 16 U.S.C. Sec. 839c(g)(2). Thus, within 21 months of the Act's effective date, a new system of contracts allocating BPA's supply of hydropower was to be in place.

The Act also required BPA to encourage energy conservation by its customers as well as to take measures to protect the environment of the Pacific Northwest. 16 U.S.C. Sec. 839b, d, f(j). Congress said the Act was to be "construed in a manner consistent with applicable environmental laws." 16 U.S.C. Sec. 839. The questions presented in this case thus implicate two of the Acts' most important objectives: a new system of contracts governing BPA's delivery of power to its customers and an energy program for the Pacific Northwest that is sensitive to environmental concerns.

Procedural Objections to this Suit

Before reaching the merits of the case, there are two preliminary procedural objections by the defendant BPA, and intervenors Martin Marietta Aluminum, Public Power Council, and Pacific Power & Light Company, relating to plaintiffs' standing and the timeliness of the action.

Intervenor Martin Marietta contends that Forelaws lacks standing because it has not alleged that BPA's contract offers caused it any injury within the zone of interest to be protected by NEPA, citing Port of Astoria, Oregon v. Hodel, 595 F.2d 467, 474 (9th Cir.1979). The complaint, however, alleges that plaintiff Forelaws is an environmental group whose members live in the Pacific Northwest and that one of its members, Mr. Marbet, is a resident of that region and a consumer of electric power there. ¹ Those allegations coupled with the allegations of the environmental consequences of the contract are sufficient to establish standing. See United States v. SCRAP, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 2414-17, 37 L.Ed.2d 254 (1972) (even general allegations of potential harm by one who lives in or uses an area demonstrate standing); Pacific Legal Foundation v. State Energy Resources, Etc., 659 F.2d 903, 911-12 (9th Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982). See also Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1368, 31 L.Ed.2d 636 (1972) ("[A]n organization whose members are injured may represent those members in a proceeding for judicial review.").

The timeliness question arises from the confusion generated by the statute's provision that suits challenging final actions of the BPA administrator "shall be filed within the United States court of appeals for the region ... within ninety days ...." 16 U.S.C. Sec. 839f(e)(5). The complaint in this case was not actually filed with the clerk of this court until more than 90 days after the action being challenged. However, it is undisputed that Forelaws attempted to file a complaint the day before the expiration of the 90-day period, but the clerk of this court rejected the complaint because normally this court does not have jurisdiction of original complaints. In fact the plaintiffs had also filed a complaint in the district court, and jurisdictional issues were still in litigation. See Forelaws I, 709 F.2d at 1311-13. Our clerk's mistaken rejection of the complaint when it was timely offered should not bar its consideration, and it should be deemed timely filed. See Loya v. Desert Sands Unified School District, 721 F.2d 279, 280-81 (9th Cir.1983). We therefore must consider the merits of plaintiffs' claim that BPA has violated NEPA by failing to prepare an environmental impact statement.

The Contracts' Environmental Significance

Section 102(2)(C) of NEPA, 42 U.S.C. Sec. 4332(2)(C), requires that federal agencies, "to the fullest extent possible," do a detailed statement of the environmental impact of any proposed major federal action which would significantly affect the quality of the environment. ² BPA did not prepare an environmental impact statement in connection with its contract offers. It did what it termed an "Environmental Report," a document not contemplated by NEPA, and which did not analyze in detail any possible adverse environmental consequences of the contracts and ways that they might be avoided. The environmental report did not, in short, do what an environmental impact statement is supposed to do, and what plaintiffs contend under the provisions of NEPA, the agency was required to do.

BPA does not deny that these 145 contracts of 20-year duration constitute major federal action. It argues that the contracts themselves do not significantly affect the human environment. It also argues more strenuously that the time limitations of the Regional Act indicate Congress's intent to waive NEPA's application to these contracts by making it impossible for the agency to comply with NEPA. We deal with each of these arguments in turn.

BPA initially contends that because Congress has mandated it to offer contracts, BPA had no discretion with respect to contract terms that might have varying effects upon the environment. Because the principal purposes of NEPA include making considerations of environmental concerns a part of the decision-making process, see Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 143, 102 S.Ct. 197, 201, 70 L.Ed.2d 298 (1981), other circuits have developed the principle that an EIS is not required where the agency's action is "mandatory." See, e.g., Pacific Legal Foundation v. Andrus, 657 F.2d 829, 839-40 & n. 13 (6th Cir.1981) (mandatory agency duty to list endangered species upon specified factual finding); South Dakota v. Andrus, 614 F.2d 1190, 1193 (8th Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 80, 66 L.Ed.2d 24 (1980) (non-discretionary acts not subject to NEPA); Natural Resources Defense Council, Inc. v. Berklund, 609 F.2d 553, 558 (D.C.Cir.1979) (NEPA not applicable when Secretary has no discretion as to coal leases).

The difficulty with BPA's position that the contract action was completely mandated by statutes is that, as BPA recognized in its environmental report, "the administrator possesses a great deal of discretion in contract matters." This includes contract provisions directly aimed at environmental concerns. Congress expressly authorized the administrator to include, in the contracts, provisions designed to achieve the Act's environmental purposes, such as encouragement of conservation, development of renewable resources, fish and...