Friends of the Columbia Gorge v. Bpa

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 27, 2018
• Docket: 15-72788
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAR 27 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRIENDS OF THE COLUMBIA GORGE No. 15-72788 and SAVE OUR SCENIC AREA,

Petitioners, MEMORANDUM* v.

BONNEVILLE POWER ADMINISTRATION,

Respondent.

On Petition for Review of an Order of the Bonneville Power Administration

Argued and Submitted March 8, 2018 Portland, Oregon

Before: FISHER, N.R. SMITH, and HURWITZ, Circuit Judges.

Friends of the Columbia Gorge and Save Our Scenic Area (collectively,

“Friends”) petition for review of a Bonneville Power Administration (BPA) record

of decision granting the Whistling Ridge Energy Project (the Wind Project) an

interconnection to BPA’s transmission system. We deny the petition.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. BPA determined the Wind Project—as opposed to the interconnection

itself—was not a major federal action under the National Environmental Policy

Act (NEPA). See Sierra Club v. Bureau of Land Mgmt., 786 F.3d 1219, 1225 (9th

Cir. 2015).

We review BPA’s determination with deference under the Administrative

Procedure Act, determining only whether it was arbitrary, capricious, or contrary to

law. See Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.3d 1105,

1118 (9th Cir. 2000), abrogated on other grounds by Wilderness Soc’y v. U.S.

Forest Serv., 630 F.3d 1173 (9th Cir. 2011).

Determining whether an action is federal for purposes of NEPA “requires

‘careful analysis of all facts and circumstances surrounding the relationship’”

between the federal agency and the allegedly nonfederal action. Enos v. Marsh,

769 F.2d 1363, 1371 (9th Cir. 1985) (quoting Friends of the Earth, Inc. v.

Coleman, 518 F.2d 323, 329 (9th Cir. 1975), abrogated on other grounds by

Cottonwood Envtl. Law Center v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir.

2015)). We evaluate (1) whether the project received “federal funding,” Enos, 769

F.2d at 1372; (2) whether the “federal government exercised . . . control over the

planning and development of” the project, id.; (3) whether “[t]he environmental

effects of the state action were . . . ignored” or whether “the state project was taken

2 into account as one of the secondary effects of the federal action,” id. at 1372 n.11;

see also Wetlands, 222 F.3d at 1117 (weighing “extensive state environmental

review” as a factor indicating an action was not within federal jurisdiction); and (4)

whether two projects “are so functionally interdependent that the projects

constitute a single federal action” or whether they “serve complementary, but

distinct functions,” Enos, 769 F.2d at 1371.

These factors support BPA’s determination that the Wind Project was not a

federal action. First, the Project will receive no federal money. Second, the federal

government exercised no control over the planning and development of the Wind

Project. Third, BPA engaged in a joint NEPA analysis with Washington’s

regulatory agency. Lastly, even if interconnection with BPA is the only feasible

means of transmitting power generated from the Wind Project, the interconnection

and the Wind Project “serve complementary, but distinct functions.” Id. In contrast

to the situation in Port of Astoria v. Hodel, 595 F.2d 467 (9th Cir. 1979), BPA

would merely transmit power generated by the private Wind Project to other

private consumers along its existing transmission system. Cf. id. at 471 (identifying

federal action in a contract to supply federally generated power to an aluminum

plant).

3 Accordingly, we cannot conclude that BPA’s no-federal-action

determination was arbitrary, capricious, or contrary to law. See Wetlands, 222 F.3d

at 1118.

Petition DENIED.