Page 22 RAIN March/April 1985 the unwashed public and the big-time bureaucrats, was a triumph of hope over experience. The honeymoon lasted, with only a few squabbles, until this winter. The council's authority to require federal entities (like Bonneville) to comply with the Northwest Electric Power Plan and the Fish and Wildlife Program is now being argued in separate cases before the U.S. Court of Appeals for the Ninth Circuit. In January the U.S. Department of Justice intervened in each of the cases. Justice appears intent on clarifying the boundaries of the council's authority (see box). The court challenges afford the opportunity to explore perhaps the biggest difficulty with bioregionalism: What mechanisms can surmount jurisdictional turf wars? Who gets to run the region? Remember, this basin covers more than a quartermillion square miles. There are more than 250,000 running miles of year-round streams. More than 40 percent of the nation's hydropower potential roars through the Columbia's dams. The states-Idaho, Montana, Oregon and Washington-have all tried to manage their part of the river and the fish died. The dam operators tried to control the current and fish kept dying. The tribes had retained their right to fish, but there are few fish left for them. The council has, for the first time, pushed the whole unwieldy mass of interests into one context. It remains to be seen whether there will finally be fewer fish dying in the basin as a result, but the odds are better than ever before.DD Bonneville Dam, new fish ladder (Photo by Car.lotta Collette) The Regional Council in Court by Ralph Cavanagh There is a widespread and not entirely inaccurate perception around the Northwest that nothing significant can happen on the energy front without a court getting involved. The Northwest Power Planning Council almost became a glorious exception to the rule; no public interest group or electric utility chose to challenge the council's first twenty-year plan. At the last minute, however, lawyers for a coalition of homebuilders arrived in San Francisco to file a lawsuit called Seattle Master Builders Association v. Northwest Power Planning Council. What is now widely referred to as the Master Builders case is both a sweeping attack on key elements of the council's plan and an effort to have the council itself declared unconstitutional. Most attorneys not on the homebuilders' payroll dismiss the challenge to the plan itself; the homebuilders are rehashing largely frivolous arguments about the council's residential efficiency standards that were exhaustively considered and refuted by the council itself. In such circumstances, courts almost invariably defer to the findings of the agency charged with setting the standards. Of somewhat greater concern is the constitutional question raised in the case. The federal Constitution requires that "officers of the United States" must be appointed by the President (Article II, Section 2). The homebuilders argue that the council is composed of ''officers of the United States" because it exercises substantial authority over activities of a federal agency-the Bonneville Power Administration-and that as a result Congress acted illegally when it provided for appointment of council members by their state governors. The council responded that homebuilders' argument would invalidate at a stroke innumerable cooperative federal-state arrangements throughout the nation: "Surely the provision of conditional federal grants for elementary education, for example, does not bring the appointment of school boards and principals under the supervision of the president; yet these state officials establish plans that govern the manner in which federal money may be spent." In all this discord there is a silver lining for the council. If the agency prevails-as most observers expect-it should emerge strengthened by the removal of any legal cloud over its powers and legitimacy. The homebuilders, their lawyers, and others will learn an important lesson in the process: the place to argue about regional power planning is before the councit not the courts. Ralph Cavanagh is a lecturer on law at the Harvard Law School.
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