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Group Sues BPA for Release of E3's LSRD Study Documents by K.C. Mehaffey NW Fishletter, October 7, 2024

Advocates for the West -- a nonprofit law firm in Boise, Idaho -- is pushing for the immediate release of documents and emails from the Bonneville Power Administration related to a 2022 study prepared by Energy and Environmental Economics on replacing power generated by the four lower Snake River dams.

In a lawsuit filed in the U.S. District Court for the District of Oregon, AFW says it sent a Freedom of Information Act request to BPA in April 2023 and has yet to receive any records or emails following repeated delays.

It asked the court to find that BPA failed to make a timely determination and is improperly withholding records.

BPA commissioned the 2022 E3 study to provide an independent analysis of the power generation impacts of breaching the dams and potential replacement resources "from a realistic analytic, operational, and resource characteristic perspective, so BPA can enhance its understanding of the complexity and expense involved in replacing those assets," the agency says.

In an Aug. 15 response to the lawsuit, BPA denied that AFW is entitled to a court order requiring a prompt release of the records, saying it "properly extended the statutory deadline as allowed by FOIA."

The agency asked the court to deny AFW's request for immediate disclosure and dismiss the complaint.

After its release in July 2022, environmental groups questioned the E3 study, which put a much larger price tag on replacing the dams compared to an Energy Strategies study commissioned by the NW Energy Coalition. Energy Strategies estimated replacement costs of $277 million to $309 million per year, or an $8 billion to $9 billion net present value, compared to E3's estimate of $415 million to $860 million per year, or a $12 billion to $20 billion net present value.

The E3 study estimated that breaching the dams would cost public-power customers in the region between $100 and $230 per household annually, or an 8- to 18-percent increase, by 2045.

In August 2022, senior officials at E3 noted that the Energy Strategies study modeled the replacement value under today's market conditions with the assumption that removing the dams is the region's only policy objective, while the E3 study considered resources needed to replace the dams while also reducing carbon emissions to zero or near zero by 2045.

The lawsuit claims the cost of removing the four lower Snake River dams and replacing the energy they provide is a major point of disagreement between groups that favor breaching the dams and those that advocate keeping them in place. It notes the E3 study concludes that "[r]eplacing the four lower Snake River dams while meeting clean energy goals and system reliability is possible but comes at a substantial cost, even assuming emerging technologies are available."

It says BPA has an economic interest in keeping the dams in place, and that "many anti-dam advocates are suspicious of BPA's statements and analyses regarding the economic importance of the lower Snake River dams."

In its lawsuit, AFW asked BPA for all contracts, statements of work and similar documents between BPA and E3 in connection with the E3 study; all communications between the consulting firm and BPA; all records that document meetings, conversations or other communications between them; and all BPA memos and emails referring to the study.

After acknowledging the request, BPA asked AFW to narrow the scope of its request due to the volume of records, so AFW asked for all records already collected, as well as only emails between BPA and E3, including attachments.

AFW says BPA then extended the deadline for producing records several times due to the volume of records and the need to undergo an exemption review to determine records or portions of records that were not subject to release.

"By failing to make a timely determination as to AFW's request, BPA has violated and continues to violate FOIA," the lawsuit claims. "BPA's egregious delay in releasing records responsive to AFW's request violates FOIA's requirement that an agency make records 'promptly available' upon request and amounts to an improper withholding of agency records," it says.