An insider's perspective on Northwest Resource Information Center v. Northwest Power Planning Council.

• Author: Berger, Adam
• Position: Colloquium: Who Runs the River?

This is an insider's perspective. I was an insider on the Northwest Resource Information Center v. Northwest Power Planning Council (NRIC) case,(1) but I am not an insider on the workings of the Northwest Power Planning Council. I started working on salmon issues only two years ago. There are many people here today who have been observing the Council and the Northwest Power Act(2) far longer than I have. That is one of the reasons why I am going to be talking about what led up to the Ninth Circuit's decision, rather than speculating on where we might go from here.

There are several questions I want to address. Why did we bring this case? In fact, what case did we intend to bring? What case did we actually bring? And what case did the court decide? These are not all the same question, and they do not have the same answer. I hope the evolution of the case, as I see it, will give you a little more insight on what the court decided and also the thought processes underlying public interest environmental litigation in general.

Moving to the first question--actually there are two questions: Why did we bring this case, and what did we hope to accomplish? First, we brought the suit out of general political frustration. Twelve years ago, fishery advocates in the Columbia Basin thought they had solved their problem through legislation, as Lorraine Bodi indicated.(3) They thought that they had brought salvation to the salmon and avoided the Endangered Species Act (ESA)(4) listing. They went through intense efforts for both the original Fish and Wildlife Program and the latest amendments to it, attempting to get a program which would satisfy the mandates of the Northwest Power Act. Instead, they ended up with ESA listings of salmon in the Snake River Basin. So we wanted to find out whether the Northwest Power Act had any teeth, if there was any substance to it. Or whether we should just forget the whole experiment and move on. The lawsuit was an expression of our desire to find out what the law really meant.

In addition, we feared having the ESA dominate the planning for the Basin. Why did we fear an ESA-run hydroelectric system? First of all, there is little public input in a lot of ESA processes. The section 7 consultation process(5) is largely closed to the public, or at least it was prior to Judge Marsh's recent decision.6 There is no deference owed the opinions of the state and tribal managers or the other fishery advocates in the ESA process. And there are also no checks on the political weight of the action agencies in the process--the Bonneville Power Administration or the Corps of Engineers--as they go into consultation with National Marine Fisheries Service (NMFS). This all contrasts to the very public process and the apparent deference that is required under the Northwest Power Act.7

Second, the ESA is politically vulnerable. You all have read in the newspapers, presumably, of the massive assaults being undertaken on the ESA in Congress and in other forums by the "Wise Use" movement and other advocates of economic development. As a lobbying matter...