No one can deny that dams have had adverse effects on salmon. The real question is what, if anything, to do about the present effects in the face of much larger and much more important things that are currently causing an adverse effect on salmon, and whether the benefits of the dams outweigh the remaining costs to salmon runs. That is the question Congress grappled with when it passed the Pacific Northwest Electric Power Planning and Conservation Act (often called the "Northwest Power Act" for short). Congress sought to balance the goals of providing "adequate, efficient, economical and reliable" electric power from the dams with "protecting, mitigating and enhancing" fish and wildlife in the Columbia River Basin.49
The Act created the Northwest Power Planning Council, and charged it to develop a power plan for the Northwest, including a fish and wildlife program, which is supposed to guide the federal agencies who actually run the dams and sell the power. The Act was actually written by an "Ad Hoc Committee" that represented both fish and power interests. The idea was to get more coordinated operations of the separate projects. The House Committee on the Interior confirmed in adopting the work of the Ad Hoc Committee that “this approach is not intended to create any new obligations with respect to fish and wildlife”.50
Certainly Congress did not intend fishery agencies to strike the planning balance between optimizing dam operations for power and for salmon. That task was delegated to the Council itself, as an interstate compact of Oregon, Washington, Alaska and Montana. Indeed, it would make no sense to put fish agencies solely in charge of striking the balance between fish and power, but that is just what the Ninth Circuit did in one of its more far-fetched environmental law decisions.
A peculiar thing about the Northwest Power Act is that it ultimately produces nothing more than a piece of paper: here called the “Fish and Wildlife Program”. The Council has no authority to implement its plan. The federal agencies that actually conduct dam operations are not expressly required to follow the plan; there is a general requirement to protect fish and wildlife "in a manner consistent with the plan".51
But none of them consistently do, and the Council itself routinely ignores the plan. For example, the plan calls for a Fish Operations Executive Committee to resolve disputes about dam operations for fish. The Power Act requires the Council to put ratepayer representatives on its committees. Using threats of litigation, we got the Council to add a ratepayer seat on the Committee. So the Council simply stopped holding meetings of the Committee. They ignore their own program in more substantive ways as well.
It remains unclear just how much legal authority the Council has. The question came before the Ninth Circuit, when litigants claimed that the Council was a violation of the Appointments Clause of the U.S. Constitution. According to the United States Supreme Court, “any appointee exercising significant authority pursuant to the laws of the United States is an ‘Officer of the United States’ and must therefore be appointed by the President”.52 This provision tends to provide centralized authority and accountability for federal actions.
Unfortunately, the Ninth Circuit, in a 2-1 decision, once again stretched the law to uphold what it characterized as “an innovative system of cooperative federalism”.53 A federal law had created the Council, and the Council had veto power over some federal decisions (outside the fish and wildlife context). Nevertheless, Judges Goodwin and Schroeder concluded that because the Northwest states passed state legislation to implement the Council, the Council members were not exercising significant authority pursuant to federal law.
Judge Beezer dissented, noting that the United States had conceded that the Northwest Power Act could give the Council “significant” authority under federal law. As for the idea that the Council should be upheld as “an innovative system of cooperative federalism”, Judge Beezer responded that this “position lacks a basis in the text of the Constitution”. The Constitution expressly provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”.54 It simply does not empower Congress to let Northwest Governors appoint what are, in effect, federal officials.
The drafters of the Northwest Act had recognized a serious risk that it would be held unconstitutional and provided that it would be established as a federal agency if that happened.55 Had the Ninth Circuit decision gone the right way, and the Council held unconstitutional, salmon decisionmaking would have been more centralized and accountable. The buck would have stopped at the President’s desk. But this is just one of the many legal errors that has helped render salmon policy a quagmire. Years after the decision holding the Council constitutional, the Clinton/Gore Justice Department formally adopted the view that the Ninth Circuit was right, “disavowing” contrary legal opinions of prior Administrations.56
50 H. Rep. No. 96-976, Pt. II, 96th Cong., 2d Sess. 37 (Sept. 16, 1980); see also Ad Hoc Pacific Northwest Power/Fisheries Committee, “Section-by-Section Analysis of Fisheries Provisions of the Northwest Regional Power Bill (S. 885) if Amended in Accordance with the Ad Hoc Committee Proposals”, at 4 (Aug. 22, 1980).
51 16 U.S.C. § 839b(h)(10)(A).
52 Buckley v. Valeo, 424 U.S.1, 126 (1976).
53 Seattle Master Builders Ass’n v. Pacific Northwest Electric Power Planning and Conservation Council, 786 F.2d 1359, 1366 (9th Cir. 1986).
56 W. Dellinger, “The Constitutional Separation of Powers between the President and Congress”, Memorandum for the General Counsels of the Federal Government, at 20 n.53 (U.S. Department of Justice May 7, 1996.
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