SELECTED NEPA TOPICS USING NINTH CIRCUIT LAW

I.    STANDARD OF REVIEW.

A.    REVIEW OF AGENCY ACTIONS GENERALLY.
The standard of review generally applicable to BPA is whether BPA's action was "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706 (made applicable to BPA action by 16 U.S.C. § 839f(e)(2)). California Energy Commission v. BPA [Long-Term Intertie Access Policy], 909 F.2d 1298, 1306 (9th Cir. 1990).

B.    THE "HARD LOOK" DOCTRINE APPLIES TO DECISIONS TO NOT ENGAGE IN NEPA PROCESSES.

The standard of judicial review applied to an agency decision not to prepare an impact statement is affected by the "hard look" doctrine. Kleppe v. Sierra Club, 427 U.S. 390, 410 n. 21, 96 S.Ct 2718, 2730 n. 21, 49 L.Ed.2d 576 (1976). The hard look doctrine requires that "the Government based is decision on a `reasoned evaluation of the relevant factors.'" Environmental Coalition of Ojai v. Brown, 72 F.3d 1411, 1418 (9th Cir. 1995), quoting and applying, Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct 1851, 104 L.Ed2d 377 (1989).

[I]n the context of reviewing a decision not to supplement an EIS, courts should not automatically defer to the agency's express reliance on an interest in finality without carefully reviewing the record and satisfying themselves that the agency has made a reasoned decision based on its evaluation of the significance --or lack of significance--of new information. A contrary approach would not simply render judicial review meaningless, but would be contrary to the demand that courts ensure that agency decisions are founded on a reasoned evaluation of the relevant factors.

Marsh v. Oregon Natural Resources Council, supra.

In order to prevail on their contention that BPA's action is not in accordance with the law, petitioners must show this Court that it is "likely" that the terms of the long-term wheeling agreements may affect the environment. In The Steamboaters v. F.E.R.C., 759 F.2d 1382 (9th Cir. 1985) this Court explained:
The standard for determining whether to prepare an EIS is whether "the plaintiff has alleged facts which, if true, show that the proposed project may significantly degrade some human environmental factor." [Foundation for North American Wild Sheep v. United States Department of Agriculture, 681 F.2d 1172 (9th Cir.1982)] at 1178 (quoting Columbia Basin Land Protection Association v. Schlesinger, 643 F.2d 585, 597(9th Cir. 1981) (emphasis in original).
(emphasis in original). As another example of the reasonableness standard, BPA's refusal to do the required tiered EIS is unreasonable if petitioners "raise[] serious questions concerning the adequacy of the EIS with regard to cumulative impact analysis." City of Tenakee Springs v. Clough, 915 F.2d 1390, 1313, (9th Cir. 1990). See Sierra Club v. U.S. Forest Service, 843 F.2d 1190, 1192 (9th Cir. 1988)
II. STANDING

A. INDIVIDUAL PLAINTIFFS WILL SUFFER ENVIRONMENTAL LOSSES, AFFECTING PRIVATE PROPERTY, AESTHETIC AND ENVIRONMENTAL INTERESTS.

1. THESE PARTIES HAVE STANDING TO ASSERT REGIONAL AND INDIVIDUAL HARMS.

Petiteoners have representational standing to assert the environmental harms of their members and supporters. P1 has standing to assert transboundary harms flowing as a consequence of BPA's actions affecting the human environment of the region, including Canada. Wilderness Society v. Morton, 463 F.2d 1261 (D.C. Cir. 1972). They may allege the environmental and health harms, as well as the aesthetic and recreational losses of their members and supporters under the three-part test for organizational standing announced by the United States Supreme Court in Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 97 S.Ct 2434, 53 L.Ed2d 383 (1977).
[A]n organization has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Affiants _________________and ___________________live in Columbia County ,Oregon, on rural property they own, and enjoy the aesthetic and recreational pleasures of their small farm. They fish, swim and recreate in the region and intend to continue to do so. Madelynne Sheehan is a publisher who specializes in publications about sports fishing. Exhibit S, Ex-App. at 98-99. She has a personal and professional interest in the sports fishing industry and will be severely economically impacted if the environmental decisions of BPA reduce the opportunity for sports fishing in the region where she and her subscribers live, or travel to enjoy the sport opportunities.

2. ALL PLAINTIFFS HAVE STANDING TO SEEK REDRESS FOR THE PROCEDURAL INJURIES.

The individual plaintiffs have standing to complain about the procedural violations of NEPA, as they have clearly sworn to facts which show that they "have a sufficient geographical nexus to the site of the challenged project that [they] may be expected to suffer whatever environmental consequences the project may have. Friends of the Earth v. U.S. Navy, 841 F.2d 927, 932 (9th Cir. 1988).
As noted in Oregon Environmental Council v. Kunzman, 817 F.2d 484, 491 (9th Cir. 1987), "[P]rocedural failures in EIS preparation create a risk that environmental impacts will be overlooked and provide sufficient `injury in fact' to support standing." See also, Trustees for Alaska v. Hodel, 806 F.2d 1378, 1380 (9th Cir. 1986); Forelaws II, supra; Douglas County v. Lujan, 810 F.Supp 1471, 1476 (D. Or. 1992).

NEPA harms themselves are procedural. Idaho Conservation League v. Mumma, 956 F.2d 1508, 1514 (9th Cir. 1992). NCAC and URP have alleged such injuries.
The `asserted injury is that environmental consequences might be overlooked,' as a result of deficiencies in the government's analysis under environmental statutes.

Seattle Audubon Society v. Espy, 998 F.2d 699, 703 (9th Cir. 1993); quoted with approval in Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, 1355 (9th Cir. 1994).
For example, in Trustees for Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir. 1986), the federal defendants claimed that environmental groups challenge to a study of oil and gas development in Alaska was "speculative" and not ripe, since Congress would have to appropriate funds to allow such development. The Court disagreed,
The Trustees alleged in their complaint that their members had a procedural right under NEPA and the CEQ regulations to comment of the LEIS [legislative environmental impact statement] * * 8. The Trustees have standing to challenge alleged agency violations of these procedural rights. See Western Oil and Gas Ass'n v. EPA, 633 F.2d 803, 808 n. 4 (9th Cir. 1980); City of Davis v. Coleman, 521 F.2d 661, 671-72 (9th Cir. 1975).

Here, we allege that, had BPA conducted a full environmental analysis, we would have had notice, opportunity to comment, and other procedural rights before the contracts were signed. The harms asserted under NEPA are that BPA violated its procedural duty to the etitioners herein by failing to conduct a full and compete environmental analysis.

B. THE ORGANIZATIONS SUFFER INJURY TO THEIR INSTITUTIONAL PURPOSES.

P2 and the P3 exist in part to disseminate information about utility policy and practices. BPA's failure to do an EIS injures these organizations in their institutional purposes by chilling information and impairing the ability of the groups to evaluate, comment upon, inform members about, and influence policymakers about energy decisions. Organizations formed for such purposes need only allege that they were denied the opportunity to comment and that, had the opportunity been made available, they would have so commented. National Wildlife Federation v. Hodel, supra; McGarry v. Secretary of the Treasury, supra; National Conservative Political Action Committee v. FEC. 626 F.2d 953, 957 (D.C. Cir. 1980).
III. ILLUYSTRIVE ARGUMENT BASED ON "GLOBAL COMMONS" AND EXECUTIVE ORDER 12114.

Executive Order No. 12114 [3 CFR (1980 Comp.) directs federal agencies to consider, inter alia, the impact of actions that significantly affect the environment of the global commons" outside the jurisdiction of any nation.
Transboundary Greenhouse gas effects and impacts on the earth's ozone layer are within the "global commons"
The carbon intensity of natural gas imported from Canada should be viewed in the context of increased concern about the issue of global warming. There is evidence that sulphur dioxide (SO2) emissions are causing adverse affects animal health, reduces agricultural production, increases agricultural costs, reduced biodiversity and environmental quality, reduced forest growth and productivity, increased human health care costs, reduced animal reproduction and production, reduced worker productivity due to related injuries and illness, and increased structural/material damage from rusting and corrosion. SO2 emissions negatively impact economic productivity, and the health of ecosystems and individual organisms.
IV. ADDITIONAL DUTY TO STUDY ALTERNATIVES UNDER 42 U.S.C. § 4332(2)(E),

Furthermore, Agnecy appears to violate 42 U.S.C. § 4332(2)(E), which requires federal agencies to:
study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.

The circuit courts of appeal have long been in agreement that this section gives rise to an agency duty to consider alternatives independent of the EIS requirements:
This requirement is independent of the question of environmental impact statements, and operative even if the agency finds no significant environmental impact. E.g. Nucleus of Chicago Homeowners Association v. Lynn, [524 F.2d 2225 (7th Cir. 1975)], supra, 524 F.2d at 232. For, nonsignificant impact does not equal no impact; so if an even less harmful alternative is feasible, it ought to be considered."

National Wildlife Federation v. Appalachian Regional Commission, 677 F.2d 883, 892 n. 57 (D.C. Cir. 1981). In accord, River Road Alliance, Inc. v. Corps of Engineers of the United States Army, 764 F.2d 445 (7th Cir. 1985), cert. denied, 475 U.S. 1055, 106 S.Ct 1283, 89 L.Ed.2d 590 (1986); City of New York v. United States Department of Transportation, supra.
The law in the Ninth Circuit is equally clear:
[W]hile an EIS must also include alternatives to the proposed action, 42 U.S.C. § 4332(2)(C)(iii) (1982), the consideration of alternatives requirement is contained in a separate subsection of the statute and therefore constitutes an independent requirement. See Id. § 4332(2)(E). The language and effect of the two subsections also indicate that the consideration of the alternatives requirement is of wider scope that the EIS requirement. The former applies whenever an action involves conflicts, while the latter does not come into play unless the action will have significant environmental effects. An EIS is required where there has been an irretrievable commitment of resources; but unresolved conflicts as the proper use of available resources may exist well before this point. Thus the consideration of alternatives requirement is both independent of, and broader than, the EIS requirement. * * *. In short, any proposed federal action involving unresolved conflicts as to the proper use of resources triggers NEPA's consideration of alternatives requirement, whether or not an EIS is also required. (Emphasis supplied)

Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1229 (9th Cir. 1988), cert. denied, __U.S__, __S.Ct__, __L.Ed.2d__, (19__).
In this case the level of controversy is found by the following record facts:

In Van Abbema v. Fornell, 807 F.2d 635, 639 (7th Cir. 1986), the Court considered the duty imposed by 42 U.S.C. § 4332(2)(E): "[T]he evaluation of `alternatives' mandated by NEPA is to be an evaluation of alternative means to accomplish the general goal of an action, it is not an evaluation of the alternative means by which an a particular applicant can reach his goals." Applied to this case, the Seventh Circuit's observation means that 42 U.S.C. § 4332(2)(E) required Agency to ______________________, ____________________, or _____________________, as discussed below.

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1.   In that case Canadian environmentalists moved to intervene in NEPA litigation challenging the adequacy of the impact statement for the Alaskan pipeline, on the grounds that the people and the environment of Canada would not be satisfactorily represented by the incumbent plaintiffs counsel. The court granted standing to the challengers to intervene in the litigation because their interests in the environmental impact of a Canadian route were within the zone of interests protected by NEPA.

2.  In Forelaws II one of the DSI intervenors challenged the standing of the environmental group and member plaintiff:

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.").

3.   Section 2 of the Order also provides a list of exemptions to the directive, none of which would apply to the failure of BPA to consider the consequences of its long-term transmission contracts upon the emission of "greenhouse gases" and the contribution to the phenomenon of global warming.

4.   "This provision is independent of the standard triggering preparation of an EIS and is not limited to proposed major actions significantly affecting the quality of the human environment." State of North Carolina v. Hudson, 428 F.Supp. 428, 435 (E.D.N.C. 1987).