The United States District Court for the District of Oregon last week issued an opinion on salmon and dams that merits the attention of anyone interested in tracking how climate change is reworking the application of the Endangered Species Act (ESA). The opinion deserves particular attention by those parties whose commercial or other interests depend on status quo operations or configuration of federally owned or permitted infrastructure that causes take of listed species.
The ruling, in National Wildlife Federation v. National Marine Fisheries Services,1 demonstrates the metamorphosis of environmental protection and restoration measures that agencies and established commercial interests had previously resisted as politically extreme or economically unreasonable into measures that, as a matter of law, are considered reasonable and prudent measures for avoiding jeopardy to species listed under the ESA and reasonable alternatives for consideration in a NEPA review. The opinion also shows conservation actions once considered reasonable and prudent under the ESA migrating in the opposite direction, toward being insufficient and unreasonable to conserve at-risk species and comply with the law.
Snake River salmon populations have been listed under the ESA since 1991. For more than twenty years, fishing and conservation groups have been pursuing ESA-based litigation to require federal fishery officials in the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries) and dam operators, the U.S. Army Corps of Engineers (Corps) and Interior Department’s Bureau of Reclamation (Reclamation), to change river operations to benefit the downstream migration of juvenile Snake River salmon and upstream return migration of adults. A key objective for the plaintiffs has been to push federal officials to begin taking steps to remove four dams on the lower Snake River. In short, the plaintiffs’ position has been that the dams, by their very existence, are the principal variable causing harm to the listed species.
The federal government, backed by barge, agricultural, and related interests, has vigorously resisted dam removal and offered instead an array of other conservation measures, including some changes in dam operations and tributary habitat restoration. Between 2000 and 2011, NOAA Fisheries issued four biological opinions that were challenged by fisheries advocates and overturned by the district court for failing to comply with the ESA. Each opinion from the court grew successively more critical of the agencies for defending the status quo on the river, with the court in 2011 describing a prior NOAA Fisheries’ biological opinion as a “cynical and transparent attempt to avoid responsibility for the decline” of listed species. In the same 2011 opinion, the court invalidated NOAA Fisheries’ fourth biological opinion and ordered preparation of a new biological opinion that considers “whether more aggressive action, such as dam removal and/or additional flow augmentation and reservoir modifications are necessary to avoid jeopardy.” The fifth and latest biological opinion from NOAA Fisheries included 73 “reasonable and prudent alternatives” (RPA actions) for reducing the dams’ impacts on salmon, but, as with each prior federal plan, no serious consideration of dam removal or modification.
Fishery interests sued, alleging violations of the National Environmental Policy Act (NEPA) and the ESA. The plaintiffs’ NEPA claim, a first in this long-running case, was prompted by the Ninth Circuit’s 2014 opinion in San Luis & Delta-Mendota Water Authority v. Jewell,2 that action agencies making a decision implementing a biological opinion generally must prepare an EIS.
The National Wildlife Federation court found that NOAA Fisheries violated the ESA by using improper standards, failing to consider adequately the impact of climate change on habitat conditions, and placing undue reliance on unproven, future federal habitat conservation measures, particularly to the degree that the success of the measures could be undermined by climate change. The court also found that the Corps and Reclamation violated NEPA by failing to prepare a comprehensive environmental impact statement on implementation of the conservation measures ordered by NOAA Fisheries, including analysis of the measures directed by NOAA Fisheries and other reasonable alternatives.
The court wrote:
For more than 20 years, the federal agencies . . . have continued to focus essentially on the same approach to saving the listed species—hydro-mitigation efforts that minimize the effect on hydropower generation operations with a predominant focus on habitat restoration. These efforts have already cost billions of dollars, yet they are failing. [T]he 2014 BiOp continues down the same well-worn and legally insufficient path taken during the last 20 years. It impermissibly relies on supposedly precise, numerical survival improvement assumptions from habitat mitigation efforts that, in fact, have uncertain benefits and are not reasonably certain to occur. It also fails adequately to consider the impacts of climate change and relies on a recovery standard that ignores the dangerously low abundance levels of many of the populations of the listed species.
At one level, the opinion in National Wildlife Federation can be seen as the latest move in a multi-decade contest between the federal judiciary and executive branch over salmon conservation in the Columbia Basin, distinguishable as a discrete fight unique to the particulars of the Pacific Northwest.
The court’s frustration with the agencies dominates the opinion, but a second thread is laced throughout. One cannot read the opinion without sensing that the court concluded that climate change has shifted the fishery conservation calculus significantly, changing the character and consequences of the risks that NOAA Fisheries and the dam operators had decided to place on the endangered fish species.
The court disapproved of NOAA Fisheries’ use the “trending toward recovery” standard, which determined that RPA actions would not jeopardize the likelihood of recovery for a listed species if three metrics of a population’s average growth were expected to be positive. The court stated a “trending toward recovery” determination was arbitrary and capricious unless it included “a ‘full analysis’ of the risks to recovery from whatever amount the population is growing, including proper consideration of the ‘highly precarious status’ of the species and the dangers of sustained low abundance.”3 An action appreciably reduced the likelihood of survival if it would “prevent or appreciably delay recovery,”4 and NOAA Fisheries should have tied the “recovery metrics to any estimated recovery abundance levels and the timeframe needed to achieve those levels” before determining that the RPA actions would not reduce the listed species’ chance of recovery.5
The court also took issue with the “retaining the current ability to become functional” standard that NOAA Fisheries used to determine that the RPA actions would not adversely modify critical habitat. The standard considered “whether affected designated critical habitat is likely to remain functional (or retain the ability to become functional) to serve the intended conservation role for the species in the near and long term under the effects of the action, environmental baseline and any cumulative effects.”6 After acknowledging that the species’ critical habitat was degraded and would be adversely modified by operation of the FCRPS, it was insufficient for NOAA Fisheries to ask only whether the RPA actions allowed the degraded habitat to retain its current ability to someday become functional. Instead, NOAA Fisheries was required to analyze whether the RPA actions would alter the designated critical habitat in a manner that appreciably diminished the habitat’s value for the survival or recovery of listed species. While the RPA actions were not required to “restore habitat to a fully functioning level,” they were required to “include improvements sufficient to avoid adverse modification.” 7
The court specifically found the climate change considerations in NOAA Fisheries’ most recent biological opinion to be insufficient. The biological opinion failed to consider the additive harm from climate change, how it could reduce the effectiveness of the RPA actions, or how it increased the chances of a catastrophic event affecting the survival of the listed species. The court held that without these analyses, NOAA Fisheries could not rationally conclude that the RPA actions were sufficient in number and magnitude to ameliorate the effects of climate change. The court also held that the climate change analysis “necessarily need[ed] to look to look beyond the 10-year time frame” of the biological opinion,8 and NOAA Fisheries improperly assumed that climate conditions would not worsen despite evidence to the contrary.
Lastly, the court faulted NOAA Fisheries’ reliance on specific, numerical benefits that habitat improvements were expected to have on species’ recovery because they were too uncertain and did not provide any margin of error. The no-jeopardy finding relied on the realization of 100% of the predicted survival benefits, which violated the requirement that “the risk that mitigation may not succeed must be borne by the project, not by the endangered species.”9 This was one of many times the court invoked versions of the “precautionary principle.”10
The court’s reasoning, if generalized to other situations, would require all ESA-driven avoidance, minimization, and compensatory mitigation efforts to incorporate an extra “cushion” to ensure species’ protection, or at least a cogent explanation when no margin of error exists and it is uncertain whether the benefits from mitigation will be realized. Climate change is, in this sense, an undefined but dominant variable in the calculus of what actions amount to “reasonable and prudent” means to avoid jeopardy. This is not especially startling to those who have watched natural resource law evolve in recent years, but the trend to integrate climate-change-related analysis in ESA consultations has now, with the National Wildlife Federation decision, reached a point where it seems to have shifted very significantly the trajectory of one of the most complicated and contentious resource conflicts in the country.
The court did not directly order the federal agencies to study dam removal, but the court’s intention in ordering a comprehensive EIS on the federal agencies’ salmon conservation efforts under the ESA could not be much clearer:
Although the Court is not predetermining any specific aspect of what a compliant NEPA analysis would look like in this case, it may well require consideration of the reasonable alternative of breaching, bypassing, or removing one or more of the four Lower Snake River Dams. This is an action that NOAA Fisheries and [the Corps and Reclamation] have done their utmost to avoid considering for decades. [B]ecause action alternatives in a NEPA analysis need not be under the jurisdiction or control of the lead agency, a comprehensive NEPA analysis would likely need to include such a reasonable alternative. [I]t is doubtful the [Corps and Reclamation] could demonstrate that breaching, bypassing, or removing one or more of the Snake River dams is not ‘reasonable’ under NEPA.
The opinion will almost certainly be appealed. If the district court opinion is upheld, the federal agencies will very likely begin preparing an EIS that includes consideration of dam removal or modification. It would be difficult to overestimate the amount of scrutiny the EIS will draw from stakeholders in the future of the Columbia River salmon. It is likely also to draw attention from every alert stakeholder in a water project or other form of infrastructure that seemed quite reasonable and prudent when built, but looks different and casts a different shadow in a climate where risks to species are mounting and conventional responses to project impacts are becoming less and less effective. NEPA’s requirement that agencies take a “hard look” at all reasonable alternatives is likely to become a repeated occasion for our society to weigh choices previously beyond the pale.