The point of contention in Aluminum Co. arose from a
biological opinion (BiOp) issued by the National Marine Fisheries Service
(NMFS) in 1995. In 1992, the Army Corps of Engineers and the Bureau of
Reclamation decided to increase water flows at dams within the Federal Columbia
River Power System "to assist the . . . migration of
juvenile [endangered] salmon." The
direct service industrial (DSIs) customers of BPA challenged two BiOps
supporting the decision to increase flows. Because of this challenge, NMFS
revised its BiOps several times and eventually issued a final BiOp in 1995. The
1995 BiOp concluded that continued operation of the power system threatens the
continued existence of salmon listed under the Endangered Species Act (ESA). href="#_edn2" name="_ednref2" title=""> BPA
thereafter adopted the BiOp and its accompanying "reasonable and prudent
alternatives" as required under the ESA. title="">
In this case, the DSIs claimed that BPA violated the Administrative Procedure Act (APA) when it adopted the findings of the 1995 BiOp. The DSIs also argued that BPA failed to balance adequately its obligations under the ESA against the requirements of the Northwest Power Act. Finally, the petitioners alleged that BPA failed to supply an environmental impact statement (EIS), as required by the National Environmental Policy Act (NEPA). The Ninth Circuit found none of these arguments convincing, and declined to review BPA's decision.
The APA allows judicial review of the decisions of the BPA Administrator through the Northwest Power Act. In Aluminum Co., the industrial customers alleged that BPA simply "rubber stamp[ed] the [NMFS's] analysis." Indeed, the court admitted that there was no bright line to determine when unquestioning adoption of a consulting agency's opinion is justified. However, the court declined to scrutinize a "jeopardy" finding under the same standard as a finding of "no jeopardy," stating that "such an attempt is contrary to the purposes and spirit of the [ESA]." The Ninth Circuit suggested that the weight given to jeopardy findings grants extremely deferential treatment to such findings on review.
Similarly, the court declined to extend the arbitrary and capricious standard to a situation in which an agency has performed its own independent jeopardy assessment without new evidence. The Ninth Circuit held that scientific results accepted by the agency need not be reexamined where there is merely an ongoing dispute among experts. Indeed, in such cases, the court deferred to the action agency's determination of scientific fact.
In the area of economic balancing, the Ninth Circuit held that the BPA's mandate under the Northwest Power Act to provide economical power "does not supplant the BPA's obligation to comply with environmental mandates." The DSIs argued that the economic impact of the BiOp was a violation of the Northwest Power Act's mandate that "an adequate, [and] economical . . . power supply" be maintained. The Ninth Circuit refused to accept this interpretation, and based its holding on its own 1994 interpretation of the Northwest Power Act. In pertinent part, Northwest Resource Information Center v. Northwest Power Planning Council found that the Northwest Power Act required BPA to consider changing the basic operation of hydropower projects and to favor "biological options over economic ones." Under this line of analysis, the Ninth Circuit found that BPA had correctly balanced protection of salmon and provision of economical hydropower.
Finally, the court held that the challenge raised by the DSIs under NEPA was moot and therefore beyond the scope of judicial review. NEPA stipulates that an environmental impact statement (EIS) must be issued for activities that "significantly affect the quality of the human environment." However, BPA did issued a joint EIS in November 1995. While the filing of the EIS was technically late, the court could provide no remedy to the DSIs for the interim when no EIS existed. Because no remedy was available, the issue was moot.
In sum, the Ninth Circuit in Aluminum Co. granted broad deference to agency action where questions of scientific fact are not yet resolved and the agency issues a finding of "jeopardy." The court also refused to accept the DSIs' contention that the facts underlying the 1995 BiOp were reviewable on appeal. Finally, the court held that statutory conflicts involving the ESA are typically resolved in favor of the ESA.
 This case is the latest in a series of cases dealing with salmon and BPA. See Pacific Northwest Generating Coop. v. Brown, 38 F.3d 1058 (9th Cir. 1994) (litigation challenging a 1992 BiOp) and Idaho Dep't of Fish and Game v. National Marine Fisheries Serv. 850 F.Supp. 866 (D. Or. 1994), vacated as moot, 56 F.3d 1071 (9th Cir. 1995) (litigation challenging a 1993 BiOp).