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Appeals Court Reinforces Need to Protect Salmon in Columbia and Snake River

Parts of NW Power and Conservation Council’s Sixth Power Plan sent back for a closer look
September 19, 2013
Seattle, WA —

The Northwest can do far more to protect salmon and steelhead, according to the U.S. Ninth Circuit Court of Appeals.

The panel of judges, in a ruling released yesterday, agreed with several claims raised in a legal challenge to the Northwest Power and Conservation Council’s Sixth Power Plan—a blueprint that looks at the region’s electrical power needs and supply for the next 20 years. The Court sent parts of that plan back to the Council for further consideration.

“The Northwest Power Act requires the Council to restore salmon and steelhead populations in the Snake and Columbia Rivers while maintaining an adequate and economical power supply” said Steve Mashuda, an attorney for Earthjustice representing the Northwest Resource Information Center in the case. “The Northwest enjoys an abundant power supply, but this decision confirms that we can and must do more to protect the fish.”

The ruling comes only a day after the region’s state and tribal fisheries managers and the public submitted extensive recommendations for the Council to improve its related fish and wildlife program. Many of those recommendations target the operation of federal dams that have decimated Snake and Columbia River salmon runs.

The Court found that the Council’s previous program “underestimated the degree to which the region could accommodate fish and wildlife measures while maintaining an adequate power supply.” While the Court did not require the Council to revisit that decision, it noted that the “substantial increase” in the amount of available energy conservation “should nonetheless be relevant to fish and wildlife planning.”

“No one can argue that the Council has achieved the fish restoration requirements of the law—thirteen of these stocks are on the Endangered Species list,” Mashuda noted. “While we believe the Council should have complied with its restoration duties when it adopted the Sixth Power Plan, the Court’s decision provides clear direction for the Council to follow as it develops its new Fish and Wildlife Program over the next year.”

The Court ordered the Council to reconsider two important other aspects of the Sixth Power Plan concerning the costs and benefits of fish restoration and power production.

First, it found that the Council’s power plan arbitrarily incorporated Bonneville Power Administration’s (BPA) exaggerated estimates of the “costs” of current fish protection measures. While the Council recognized many of the problems with BPA’s estimates in the draft of the Sixth Power Plan, it simply adopted BPA’s inflated figures when it issued the final Power Plan.

“For far too many years, the Council has repeated the BPA myth that fish protection measures are a foregone opportunity to generate power and should count as cost,” said Mashuda. “I can’t claim a tax loss because I follow the law and refrain from selling my neighbor’s car. But that’s just what BPA is doing when it assumes that using anything less than all the water in the river for power generation somehow counts as a cost.”

Second, the Court found that the Council failed to provide the public an opportunity to weigh in on the methodology it uses to estimate the environmental costs and benefits of various power resources. Developing a transparent method for doing this is important because it would help illuminate the benefits of fish protection, the costs of fish declines, and the trade-offs between various power resources.

Earthjustice filed the case on behalf of the Northwest Resource Information Center to compel the Council to do what’s necessary to meet the goals of the 30-year-old Northwest Power Act. That law, passed in 1980 in response to the decimation of salmon and steelhead by the federal dams in the Snake River, was intended to make salmon restoration an urgent priority. The Council was required to do everything it could to restore salmon runs while maintaining a reliable regional energy supply. Thirty years later, the region has an ample power supply, but almost all runs of Columbia and Snake River salmon are either extinct or on the Endangered Species list.

Contacts

Steve Mashuda, Earthjustice, (206) 343-7340, ext. 1027

Ed Chaney, Northwest Resource Information Center, (208) 939-0714

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.