Seattle Master Builders Ass'n v. Pacific Northwest Elec. Power and Conservation Planning Council

Decision Date11 June 1986
Docket NumberNo. 83-7585,83-7585
Citation786 F.2d 1359
PartiesSEATTLE MASTER BUILDERS ASSOCIATION; Homebuilders Association of Spokane, Inc.; National Woodwork Manufacturers' Association; Fir & Hemlock Door Association; Shelter Development Corporation; Clair W. Daines, Inc.; Conner Development Co.; Donald N. McDonald; Seattle Door Co., Inc.; Homebuilders Association of Washington State, Petitioners, v. PACIFIC NORTHWEST ELECTRIC POWER AND CONSERVATION PLANNING COUNCIL (Northwest Power Planning Council), Respondent, and United States of America, Intervenor-Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Michael B. King, John W. Hempelmann, Paul Sikora, Diamond & Sylvester, Seattle, Wash., for Seattle Master Builders.

Ronald A. Zumbrun, Robin L. Rivett, Pacific Legal Foundation, Sacramento, Cal., Sam Kazman, Kevin J. Heron, Pacific Legal Foundation, Washington, D.C., for amicus curiae Pacific Legal Foundation.

W. Hugh O'Riordan, Roy L. Eiguren, Runft, Leroy, Stecher, Coffin & O'Riordan, Chtd., Boise, Idaho, for amicus curiae Salmon River Elec. Co-op. Idaho Cty. Power & Light Unity Light & Power.

Aaron M. Peck, Steven G. Harman, McKenna, Conner & Cuneo, Los Angeles, Cal., Frank W. Ostrander, Gen. Counsel, Janet C. Hanson, William R. Cook, Associate Counsels, Northwest Power Planning Council, Portland, Or., for Northwest Power.

Mike Greely, Atty. Gen., Chris D. Tweeten, Asst. Atty. Gen., State of Mont., Helena, Mont., for amicus curiae State of Mont.

Jim Jones, Atty. Gen., John J. McMahon, Chief Deputy Atty. Gen., State of Idaho, Boise, Idaho, for amicus curiae State of Idaho.

Kenneth O. Eikenberry, Atty. Gen., Philip H. Austin, Sr. Dep. Atty. Gen., Edward H. Southon, Asst. Atty. Gen., State of Wash., Olympia, Wash., for amicus curiae State of Wash.

Richard Geltman, Gen. Counsel, Jeffrey Genzer, Associate Counsel, Nat. Governor's Ass'n, Washington, D.C., David Frohmayer, Associate Counsel, for amicus curiae Nat. Governors' Ass'n.

William J. Barker, Chief Asst. City Atty., Mark Bubenik, Asst. City Atty., City of Tacoma, Tacoma, Wash., for amicus curiae City of Tacoma.

Terrence V. Sawyer, Spokane, Wash., for amicus curiae Northwest Conservation Act Coalition.

William M. Chamberlain, Gen. Counsel, Jonathan Blees, Deputy Gen. Counsel, California State Energy Resources Conservation & Development Comm., Sacramento, Cal., for amicus curiae California State Energy Resources Conservation & Development Comm.

Richard K. Willard, Acting Asst. Atty. Gen., Paul Blankenstein, Robert V. Zener, Attys., Dept. of Justice, Washington, D.C., Harvard P. Spigal, Gen. Counsel, James O. Luce, Asst. Gen. Counsel, Paul S. Majkut, Stephen R. Larson, Preston D. Michie, Marybeth Van Buren, Bonneville Power Admin., Portland, Or., for the U.S Petition for Review of Final Action by the Northwest Power Planning council.

Before GOODWIN, SCHROEDER and BEEZER, Circuit Judges.

GOODWIN, Circuit Judge:

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. Sec. 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. Sec. 832a. See generally BPA, Columbia River Power for the People: A History of Policies of the Bonneville Power Administration (1981). The Council's mandate is to prepare a conservation and electricity usage plan for the region served by the BPA and to develop a program for energy planning consistent with regional environmental and ecological concerns. Sec. 839b(a)(1). Congress has consented to the establishment of the Council, Sec. 839b(a), to be composed of members appointed by the governors of Washington, Oregon, Montana and Idaho. Each state has agreed to participate in the Council, and has enacted legislation which authorizes the governor to appoint two members to the Council. Wash.Rev.Code Ann. Sec. 43.52A.010; (1986); Or.Rev.Stat. Sec. 469.800; (1985); Mont.Code Ann. Sec. 90-4-401 (1985); Idaho Code Sec. 61-1201 (1985).

The Act directs the Council to prepare a regional energy plan which is to provide

a general scheme for implementing conservation measures and developing resources ... with due consideration by the Council for (A) environmental quality, (B) compatibility with the existing regional power system, (C) protection, mitigation, and enhancement of fish and wildlife ... and (D) other criteria which may be set forth in the plan.

Sec. 839b(e)(2). The Council adopted the final 1983 plan in April 1983. 48 Fed.Reg. 24,493 (June 1, 1983).

The Council and BPA operate independently of each other. Their functions directly overlap, however, under those portions of the Act which provide that certain BPA actions will be consistent with the Council's plan, Secs. 839b(d)(2), 839b(h), 839c(d)(3), 839d(b), 839d(c); that the Council can request certain action of BPA, Secs. 839b(f)(2), 839b(j); and that the Council can review BPA actions, Sec. 839b(i). See Hemmingway, The Northwest Power Planning Council: Its Origins and Future Role, 13 Envtl.L. 673 (1983).

The petition raises several issues. First, it attacks the 1983 plan as arbitrary and capricious under the Act and the Administrative Procedure Act, 5 U.S.C. Sec. 553 (1982). Second, petitioners attack the constitutionality of the Council itself, claiming that because the Council primarily influences federal, not state, government actions it constitutionally cannot be an interstate compact organization. Petitioners' third argument is that the Council violates the appointments clause, U.S. Const. art II, Sec. 2, cl. 2, because the Council exercises significant authority over the federal government but has not been appointed by the President.

I. The Council as a Compact Agency

The parties and amici disagree about whether to classify the Council as a federal agency or as an interstate compact organization. See U.S. Const. art. I, Sec. 10, cl. 3 ("compact clause"). Those attacking the Council as unconstitutional argue that it is a federal agency, despite the congressional disclaimer that it is not a federal agency. Sec. 839b(a)(2)(A)(iv). Those who defend the constitutionality of the Council characterize it as a compact agency, outside the scope of the appointments clause. We hold that it is a compact agency and that its members are not "federal officers" within the meaning of the appointments clause.

Congress' intention is clear from both the language of the statute, Sec. 839b(b), and from the legislative history, that the Council is not to be a federal agency and is not to be controlled by the federal government. 126 Cong.Rec. 30186 (1980) (remarks of Sen. McClure). The alternative establishment of the Council as a federal agency was a rejected second choice. Sec. 839b(b). One of the principal purposes of the Council is to represent state concerns about regional problems; Congress deemed it undesirable for a federal agency to represent state concerns to yet another federal agency. 126 Cong.Rec. 30181 (1980) (remarks of Sen. McClure) ("The Pacific Northwest does not need and candidly will not suffer lightly a federally imposed regional planning process with apparent input from Washington acting as a federal agency."). See also 126 Cong.Rec. 30181 (1980) (remarks of Sen. Hatfield); 126 Cong.Rec. 29808 (1980) (remarks of Rep. Dingell). Congress wanted to avoid conflicts with state law and to maintain accountability through the application of federal substantive and procedural law, see 126 Cong.Rec. 29808 (1980) (remarks of Rep. Dingell), but also wanted to avoid the potential constitutional problems of a federal agency composed of state appointees. H.R.Rep. No. 96-976 (Part II), 96th Cong., 2d Sess. 40-41 (majority views), 70-71 (supplemental views of Rep. Williams) (1980), U.S.Cong. & Admin.News (1980) pp. 5989 6038, 6039, 6063-6065; 126 Cong.Rec. 30186 (1980) (remarks of Sen. McClure).

The Supreme Court recently outlined some of the indicia of compacts. These are establishment of a joint organization for regulatory purposes; conditional consent by member states in which each state is not free to modify or repeal its participation unilaterally; and state enactments which require reciprocal action for their effectiveness. Northeast Bancorp, Inc. v. Board of Gov'rs of the Federal Reserve System, --- U.S. ----, 105 S.Ct. 2545, 2554, 86 L.Ed.2d 112 (1985). Even if all these indicia of compacts are present, the only interstate agreements which fall within the scope of the compact clause are those "tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States." Cuyler v. Adams, 449 U.S. 433, 440, 101 S.Ct. 703, 707, 66 L.Ed.2d 641 (1981). "The relevant inquiry must be one of impact on [the] federal structure." United States Steel Corporation v. Multistate Tax Commission, 434 U.S. 452, 471, 98 S.Ct. 799, 811, 54 L.Ed.2d 682 (1978); see Virginia v. Tennessee, 148 U.S. 503, 13 S.Ct. 728, 37 L.Ed. 537 (1893). If the joint...

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