The U.S. Ninth Circuit Court of Appeals’ recent decision in NRIC v. Northwest Power Planning Council characterizes the fish and wildlife provisions of the Northwest Power Act as “[a]ttempting to balance environmental and energy considerations.” The Northwest Power Planning Council’s Columbia River Basin Fish And Wildlife program must consist of measures to “protect, mitigate, and enhance fish and wildlife affected by the development, operation, and management of [hydropower] facilities while assuring the Pacific Northwest an adequate, efficient, economical, and reliable power supply.” “Assuring” the region of such a power supply implies a reasonable degree of certainty that the objectives of adequacy, efficiency, economy and reliability will be achieved.
The Council must also determine whether the fish and wildlife program is consistent with the purposes of the Northwest Power Act. These purposes include encouraging conservation of electricity and timely repayment of the Bonneville Power Administration’s debt to the federal treasury. An adequate, efficient, economical and reliable power supply that includes a healthy and financially viable Bonneville Power Administration is essential to carrying out those purposes. The Council has examined the effects of fish and wildlife program measures on the ability to assure the region an adequate, efficient, economical and reliable power supply and Bonneville’s ability to carry out the other purposes of the Power Act. The fish and wildlife program includes measures that would alter the operation of the hydroelectric system, affecting the amount and value of power produced. The program also includes measures that have significant capital and/or operating costs that would be borne, at least in part, by the power system. There is a very wide spectrum of views in the region regarding the meaning of an adequate, efficient, economical and reliable power supply. Some hold that it must be considered entirely in the context of the power system that existed in 1980. In this view, an acceptable power supply is one whose characteristics are different than those of the 1980 system in only minor respects. For others, it may mean doing whatever is necessary to accommodate the needs of fish and wildlife, so long as some kind of power system can be maintained that is roughly as adequate, efficient, economical and reliable as those in other parts of the nation.
In general, it is likely that the adequacy, reliability, efficiency and economy of the region’s power supply can only be fully gauged in the context of a full revision of the Council’s Power Plan. Congress appears to have had this in mind. Congress anticipated that the Council would develop the fish and wildlife program immediately after passage of the Act.5 In contrast, the Council was given up to two years to develop the power plan. Among its several purposes, the power plan is intended to: reduce or meet the Administrator’s [of the Bonneville Power Administration] obligations 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 related spawning grounds and habitat, including sufficient quantities and qualities of flows for successful migration, survival, and propagation of anadromous fish, and (D) other criteria which may be set forth in the plan.6 Thus, the fish and wildlife program is part of the power plan, and the mutual impacts of fish and power measures are intended to be examined together.7 It may be that the potential impacts of a particular fish and wildlife measure look different in the context of a full revision of the power plan than they do during the fish and wildlife amendment process. This does not mean that, in adopting the fish and wildlife measures, the Council need not make a determination that the fish and wildlife program assures the region an “adequate, efficient, economical and reliable power supply.” It must do so. But its determination may recognize that a fuller analysis of the issue will follow in revising the power plan. This appendix describes the Council’s analysis of the balance between fish and wildlife measures and the power system