Academic journal article Harvard Law Review

Environmental Law - Endangered Species Act - District of Oregon Invalidates Biological Opinion for Federally Operated Dams on Columbia River

Academic journal article Harvard Law Review

Environmental Law - Endangered Species Act - District of Oregon Invalidates Biological Opinion for Federally Operated Dams on Columbia River

Article excerpt

ENVIRONMENTAL LAW--ENDANGERED SPECIES ACT--DISTRICT OF OREGON INVALIDATES BIOLOGICAL OPINION FOR FEDERALLY OPERATED DAMS ON COLUMBIA RIVER.--National Wildlife Federation v. National Marine Fisheries Service, No. CV 01-00640-RE, 2011 WL 3322793 (D. Or. Aug. 2, 2011).

In the Pacific Northwest, salmon provide both a way of life and grounds for endless litigation. Legal disputes over the fish are "part of the modern cycle of life in the Columbia River System."(1) The latest court ruling on the issue makes clear that the fight over salmon and another important resource--hydroelectric power from dams--is far from over. Recently, in National Wildlife Federation v. National Marine Fisheries Service,(2) the U.S. District Court for the District of Oregon remanded a biological opinion(3) on the effect of Columbia River dams on endangered salmon species, holding that the opinion relied on unacceptably speculative mitigation actions but allowing it to stay in place through 2013. Although the decision laudably combines a strong ruling with pragmatic reasoning and an evenhanded remedy, it puts off the inevitable reckoning over whether and how agencies can operate dams without driving salmon into extinction.

The Columbia River conflict is only the most high-profile manifestation of a growing unease about the environmental and economic costs of dams: 241 dams were demolished nationwide between 2006 and 2010.(4) For centuries, salmon have been not just the "cultural and spiritual soul of the Pacific Northwest"(5) but also a powerful economic force.(6) Dam construction, however, sent already-struggling salmon populations into freefall, and by 1990 wild salmon numbers were "careening downhill."(7) The Columbia River dams provide hydropower and irrigation, as well as a channel to the improbable inland seaport of Lewiston, Idaho(8)--but they are also "historically the central and unquestionably the most lethal factor" in salmon mortality, blocking access to upriver spawning grounds and killing salmon in their turbines.(9) In the last two decades, Columbia River salmon have been the focus of the most costly biological restoration project ever.(10)

NOAA Fisheries tried again with a 2008 biological opinion, supplemented in 2010.(23) The latest document concluded that, with the action agencies' habitat mitigation plans, continued dam operations were not likely to jeopardize the existence of any endangered species through 2018.(24) To achieve the "significant survival improvements necessary to avoid jeopardy," NOAA Fisheries relied on both "specific, identified projects" between 2008 and 2013 and "broad, unidentified categories of projects" the action agencies planned to devise between 2013 and 2018.(25) NOAA Fisheries believed both categories were necessary to avoid jeopardy, and in fact the majority of predicted survival improvement came from as-yet unidentified mitigation projects.(26) However, habitat mitigation currently underway was already behind schedule, with several projects cancelled and funding for others unavailable.(27) Estuary survival benefits were only one-quarter of what was expected because of infeasible and delayed projects.(28) The National Wildlife Federation and its co-plaintiffs challenged the new biological opinion, arguing that it was arbitrary and capricious.(29)

Judge Redden remanded for a third time but let the biological opinion remain in effect through 2013.(30) Because a biological opinion is a final agency action, the court evaluated it under the APA's arbitrary and capricious standard.(31) The ESA requires that NOAA Fisheries consider in its analysis the effects of only those actions that are "reasonably certain to occur."(32) The court held that the biological opinion "failed to adequately identify specific and verifiable mitigation plans beyond 2013" and was therefore arbitrary and capricious.(33)

Mitigation measures, Judge Redden wrote, must be "reasonably specific, certain to occur, and capable of implementation; they must be subject to deadlines or otherwise-enforceable obligations. …

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