Description: Challenges to reviews of the Federal Columbia River Power System's impacts on salmon and steelhead.
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National Wildlife Federation v. National Marine Fisheries Service
Case Documents:
Filing Date Type File Action Taken Summary 10/21/2021 Motion Download Unopposed joint motion to stay litigation filed. Parties Asked Court to Pause Litigation to Allow Negotiation of Long-Term Solution for Management of Columbia River System. Environmental and conservation groups, the State of Oregon, and federal defendants asked the federal district court for the District of Oregon to stay litigation in a long-running case challenging management of the Columbia River System, a system of hydroelectric dams and reservoirs on the Columbia and Snake Rivers. In January 2021, plaintiffs filed an eighth supplemental complaint alleging that actions finalized in 2020 did not cure defects identified by the court in 2016. Among other shortcomings, the January 2021 complaint alleged a failure to fully assess the impacts of climate change on salmon, and failure to consider climate change threats to the Southern Resident killer whale. In their motion to stay litigation, the moving parties said they had reached an agreement for short-term operations of the Columbia River System that would provide “an interim compromise” while the parties worked towards “a long-term comprehensive solution that, if successful, may resolve all claims in this litigation.” 10/21/2021 Settlement Agreement Download Term sheet for stay of preliminary injunction motion and summary judgment schedule filed. 07/16/2021 Motion Download Motion for preliminary injunction and supporting memorandum filed by State of Oregon. 07/16/2021 Motion Download Motion for preliminary injunction and memorandum in support filed by National Wildlife Federation. Short-Term Measures Sought to Protect Steelhead and Salmon. Environmental groups and the State of Oregon filed motions for preliminary injunctions in the long-standing lawsuit challenging biological opinions prepared under the Endangered Species Act for the continued operation and maintenance of the Columbia River System. The most recent biological opinion (BiOp) and related record of decision (ROD) were issued in September 2020 after district courts invalidated six earlier biological opinions. Oregon argued that many errors identified by the court when it invalidated prior BiOps were repeated in the 2020 BiOp and ROD and that the “precarious” status quo of salmon and steelhead fish had worsened because of low population abundances and climate change. Oregon requested short-term measures to protect listed fish while the federal defendants comply with legal obligations. The environmental groups argued that a preliminary injunction was “urgently needed to reduce irreparable harm” to listed steelhead and salmon. They contended that they were likely to succeed on the merits of their claims, including their claim that the defendants failed “to rationally or legally account for the effect of advancing climate change.” 02/25/2021 Complaint Download Complaint-in-intervention filed by Spokane Tribe of Indians. 01/19/2021 Complaint Download Proposed eighth supplemental complaint filed. Plaintiffs Said New Analyses of Columbia River System Dams Still Failed to Adequately Consider Climate Change. National Wildlife Federation and other plaintiffs filed an eighth supplemental complaint in their long-standing suit challenging management of hydroelectric dams on the Columbia and Snake Rivers. The plaintiffs alleged that actions taken by the National Marine Fisheries Service, the U.S. Army Corps of Engineers, and the U.S. Bureau of Reclamation in 2020 did not cure defects—including climate change-related defects—identified in a 2016 order of remand by the federal district court for the District of Oregon. Among other things, the plaintiffs alleged that a 2020 biological opinion failed to fully assess the impacts of climate change on salmon, and also failed to consider climate change threats to the Southern Resident killer whale. Under NEPA, the plaintiffs alleged that the analysis of alternatives “does not account for the advancing impacts of climate change, and instead is based on temperatures observed in the region between 1929 and 2008” and that the environmental impact statement then addresses climate change separately from this “counterfactual” scenario in an assessment that “is cursory, truncated, and fails to incorporate credible and available information.” The alleged shortcomings included consideration of climate impacts over a 25-year timeframe despite the analysis of other impacts over 50 years and failure to assess how climate change will compound harms. 05/04/2016 Opinion and Order Download Opinion and order issued. Federal Court Ordered Federal Defendants to Redo Biological Opinion and EIS for Federal Columbia River Power System. The federal district court for the District of Oregon ruled that the National Marine Fisheries Service (NMFS or NOAA Fisheries), the U.S. Army Corps of Engineers (Corps), and the U.S. Bureau of Reclamation (BOR) had acted arbitrarily and capriciously when they undertook reviews of the Federal Columbia River Power System (FCRPS) pursuant to the Endangered Species Act and the National Environmental Policy Act (NEPA). The FCRPS is a system of hydroelectric dams, powerhouses, and reservoirs on the Columbia and Snake Rivers, which are also home to 13 species or populations of endangered or threatened salmon and steelhead. In 2014, NOAA Fisheries issued a Biological Opinion (BiOp) that concluded the FCRPS would avoid jeopardy to listed species based on implementation of 73 “reasonable and prudent alternatives.” No new environmental impact statement (EIS) was prepared in connection with the records of decisions issued by the Corps and BOR that implemented the reasonable and prudent alternatives. The court identified a number of deficiencies in the agencies’ determinations. Among other shortcomings, the court found that the 2014 BiOp had not adequately assessed the effects of climate change. The court said that NOAA Fisheries had not applied the best available science, had overlooked important aspects of the problem, and had failed to analyze climate change effects, including the “additive harm” of climate change; its impacts on the effectiveness of reasonable and prudent alternative actions, particularly long-term habitat actions; and the increased chances of an event that would be catastrophic for protected species. The court said that NOAA Fisheries had apparently failed to consider information indicating that climate change could diminish or eliminate the effectiveness of habitat mitigation efforts and that the agency had not explained why a “warm ocean scenario” it rejected was less representative of expected future climate conditions than the scenario on which it relied. With respect to the NEPA review, the court found that the Corps and the Bureau of Reclamation could not continue to rely on EISs prepared in the 1990s and some more recent narrowly focused documents. The court said that there had been “significant developments in the scientific information relating to climate change and its effects” that “leads to the conclusion that the relevant physical environment has changed.” The court directed NOAA Fisheries to produce a new BiOp by March 1, 2018 (but kept the 2014 BiOp in place in the meantime) and ordered preparation of a new EIS to consider the 2014 BiOp’s reasonable and prudent alternatives. -
National Wildlife Federation v. National Marine Fisheries Service
Case Documents:
Filing Date Type File Action Taken Summary 04/02/2018 Opinion Download Opinion issued upholding injunction. Ninth Circuit Upheld Injunctive Relief at Federal Columbia River Power System Granted for Climate Change-Related Violations of Endangered Species Act . The Ninth Circuit Court of Appeals upheld an injunction requiring federal defendants to take certain actions to address Endangered Species Act (ESA) violations identified in a May 2016 Oregon federal court order in connection with operations of the Federal Columbia River Power System (FCRPS). The district court found that the National Marine Fisheries Service (NMFS) failed to adequately consider climate change when it issued a biological opinion in 2014 concluding that the FCRPS management would not jeopardize endangered and threatened steelhead and salmon. In April 2017, the district court granted certain injunctive relief—including “increased spill” at dams to promote salmonid survival—to address the ESA violations. The Ninth Circuit noted that the ESA foreclosed consideration of all but the irreparable harm factor in the four-factor injunctive relief test and found that the district court had not erred in finding irreparable harm sufficient to support injunctive relief. The Ninth Circuit said that the district court was not required to find an “extinction-level threat” in the short term, but noted that the district court had found that continued low abundance of listed species made them vulnerable to extinction and that one of the shortcomings identified in the NMFS’s analysis was failure to analyze how climate change increased chances of “shock events” that would be catastrophic for listed species’ survival. The Ninth Circuit also dismissed an appeal of the district court’s order requiring disclosure of planned capital expenditures at FRCPS dams to allow plaintiffs the opportunity to file motions to enjoin projects that could bias the National Environmental Policy Action (NEPA) review on remand. (The district court had also found that the NEPA review did not give adequate attention to climate change). The Ninth Circuit said the district court’s disclosure order was not appealable.