Of Bootstraps and Bar Graphs: Will NEPA Finally Do What the Endangered Species Act Couldn’t for Salmon?

It’s high noon for the federal government’s operation of the Columbia River Power System and endangered salmon populations. But NEPA just upped the ante.

Pick your Western metaphor and you can probably fit dams and fish on the great Columbia and Snake rivers into it somehow.  The Federal Columbia River Power System (FCRPS) is an engineering marvel.  But it has become increasingly clear that it is incompatible with the region’s migratory fish.  First a little background and then a report and reflection on the latest from the federal judge superintending a 15 year-old litigation over dams and endangered fish.

Background

As the graph shows, major dams on the Columbia and Snake rivers are more plentiful than just about anything. Snake River Dams The dams have long made the Pacific Northwest the Nation’s only region powered more by zero carbon electricity than by fossil fuels.  But they’ve also wreaked havoc on native salmonids—fish species and subspecies that had once made anadromy (migration out to sea and back again to spawn) into a dominant adaptive strategy.  Dominant, that is, until our dams and other “hydromodifications” remade an immense and complex ecosystem into a veritable obstacle course, chock filled with disturbances and departures from ancient norms.

Long ago the response was to build more fish “ladders,” hatcheries to assist in propagation, and improve habitat conditions elsewhere—besides the dams.

By 1991-92, the first listings of salmonids (Snake River Sockeye and Snake River Fall Chinook) pursuant to the Endangered Species Act (ESA) had started the clock ticking.  ESA § 7 prohibits federal agencies from taking actions that may jeopardize the continued existence of listed species and, in the event their actions might do so, to “consult” with the wildlife agency charged with the species’ protection.  For salmonids that is the National Marine Fisheries Service (NMFS).  So once the salmon populations throughout the Snake and Columbia systems were listed, the operations of the many dams precipitated an ESA § 7 “consultation” and resulting “biological opinions” which NMFS issued (the 2000, 2004, 2008 and 2010 BiOps).  And those precipitated the law suits challenging them.

A provision in ESA § 7 allows a BiOp to propose “reasonable and prudent alternatives” to the action as proposed—which the NMFS BiOps have all included—almost as a way to avoid a “jeopardy” finding.  Indeed, these RPAs have long since overtaken BiOp practice and litigation because of how few BiOps ever actually do find an action will jeopardize a listed taxon’s continued existence. (That’s a frustrating and exacting question within ESA practice all on its own.)

For over 15 years, the litigation over the FCRPS and its salmonids jousted over the dams, their harms to the listed populations, and the RPAs proposed by NMFS and accepted by the dam operators, the U.S. Army Corps of Engineers (USACE) and U.S. Bureau of Reclamation (BuRec).

It took years just to establish that individual dams and migrations upstream weren’t the only issues.  The totality of dams and migrations downstream (as juveniles) as well as upstream (to spawn) influenced overall mortality.  And once that picture came into focus, along with several related changes the dams wrought—like sea lions waiting to feast on fish trapped at spillways and nonnative predators like smallmouth bass that’d suddenly found the rivers hospitable—things looked pretty grim.

The further into the details of salmonid biology, population forecasting, and habitat restoration/enhancement the district judges hearing the cause dug, the less they liked what they found.  The agencies seemed to be doing anything they could to avoid the inevitable: removing the dams.  The latest target, the 2014 BiOp, cued up the latest judge to assume control, U.S. District Judge Michael H. Simon.  And his exasperation is worth quoting at length:

More than 20 years ago, Judge Marsh admonished that the Federal Columbia River Power System “cries out for a major overhaul.” Judge Redden, both formally in opinions and informally in letters to the parties, urged the relevant consulting and action agencies to consider breaching one or more of the four dams on the Lower Snake River. For more than 20 years, however, the federal agencies have ignored these admonishments and 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. Many populations of the listed species continue to be in a perilous state.

The 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 effects 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.

National Wildlife Fed’n et al. v. National Marine Fisheries Serv. et al., 2016 WL 2353647 (D. Ore. 2016), at 7-8.

A Data Circus: Sifting Through Metrics to Find that the Agencies are Failing

Judge Simon’s opinion examining the agencies’ data, their analytical techniques, and the pairing of RPAs and other mitigation to the perceived threats from the system is impressive.  As mainstream media has reported, the slip opinion tips the scales at 149 pages.  More than its girth, though, Judge Simon’s patient limning of the metrics NMFS, USACE and BuRec employed—and the limitations thereof—shows a federal judge undaunted by tremendously complex factual materials.  For that, his chambers deserve a lot of credit.

Do mitigations—like the fish ladder pictured—actually work?  Are the ones planned certain to be built or any likely to work better?

John_Day_Dam_fish_ladder (1)

Fish Ladder @ John Day Dam

When you’re assessing the overall mortality risks to salmonids, it’s pretty hard to know.  And among the seven runs of fish that spawn above the Bonneville Dam, adult counts have been rising off and on since 2000.  But average spawning fish have been short of or just barely reaching the minimum goals set by recovery experts.  For all the mitigative actions taken since then and all those still in the works, it’s hard to know what’s working and what’s not.

All of this data sifting, graphing, and charting comes under the standard doctrinal scrutiny of technical fact findings when reviewed pursuant to the Administrative Procedure Act (APA), i.e., whether they are “arbitrary” or “capricious.”  And that’s supposedly a deferential standard.

But let’s set aside that (far larger) part of the opinion to focus on its (more legally significant) NEPA holding: that USACE and BuRec, in weighing and deciding to adopt the 73[!] RPAs advanced in the 2014 BiOp, should have prepared an inclusive environmental impact statement (EIS) pursuant to NEPA § 102(2)(C).  The first question that arises is: what about the dozen other EISs and environmental assessments (EAs) on dam operations, mitigations, hatcheries, etc., which the agencies had prepared over the years?

NEPA, NEPA Everywhere . . .

The action agencies prepared EISs in connection with the operations of the FCRPS in 1992, 1993 and 1997.  Shouldn’t they have been able to “tier” from those, as they thought they had?  The one thing missing from every single such NEPA document: breaching a dam as one “alternative” to be considered.  The court stood firm on Ninth Circuit precedent, rejecting the EISs as too old:

Defendants argue that the older NEPA documents are not too stale because there is no new information bearing on the proposed action or its effects and the physical environment has essentially remained unchanged. Defendants, however, do not cite to any scientific studies or record testimony supporting this conclusion. To the contrary, throughout this case Defendants have argued that the RPA actions, both as already implemented and expected to be implemented, make significant changes to the physical environment and the effects of the FCRPS.

2016 WL 2353647 at *56 (citations omitted).

As for the various other, more recent NEPA documents, like EAs on the weiring at particular dams or the control of double-crested cormorants, each of those aimed at discrete issues—not the operation of the FCRPS as a whole.  Indeed, in scoping and preparing those documents, USACE and BuRec often cited the BiOps as reason enough to limit the scope and alternatives addressed.  And that, the court found, rendered them insufficiently responsive to NEPA’s broader purposes.  Indeed, the CEQ rules hold that “connected” actions should normally be treated within a single EIS.  See 40 C.F.R. § 1508.25(a)(1).  If anything constitutes a “connected” action, the operations and mitigation of the FCRPS are it.

As more has been learned about the totality of the system and its threats to the salmonids, the more detailed have grown the RPAs regarding the FCRPS.  So what good would come of requiring an EIS on the adoption and implementation of the BiOp overall?  After all, the agencies no doubt negotiated that BiOp and the RPAs with NMFS to a painstaking degree.

Judge Simon was insistent:

NEPA requires both a programmatic and site-specific EIS. . . . [W]here several foreseeable similar projects in a geographical region have a cumulative impact, they should be evaluated in a single EIS.  The RPA actions are part of a single plan, the 2014 BiOp, designed to work synergistically to improve survival and recovery prospects and avoid jeopardy.

2016 WL 2353647 at *57 (citations omitted) (emphasis added).

Bootstrapping A New NEPA Requirement?

All that is left for the agencies to do, practically, is to prepare a “programmatic” EIS on the operation of the FCRPS through the 73 RPAs as a whole.  And that will be a different kind of NEPA document from what they’ve done.  Judge Simon even suggested that the agencies’ refusals to prepare that PEIS have been willful:

Although there is no indication that the RPA was developed with the express purpose of preventing NEPA consideration, the history of this case and the fact that the Action Agencies resist preparing a comprehensive NEPA evaluation despite the fact that programmatic EISs for very complex federal actions are regularly prepared raises concerns that the resistance to preparing a single EIS is to avoid the “hard look” and public participation that would be required under NEPA, specifically the “hard look” at all reasonable alternatives.

2016 WL 2353647 at *60 (emphasis in original).

And while the Judge wasn’t mincing words—he then went on to mention breaching dams specifically—neither was he overreaching and actually ordering that the PEIS to be composed take any certain form.  (Although that seems to be the takeaway in the local media.) So what does NEPA require here?  Judge Simon’s own analysis offers some guidance:

As the Federal Defendants contend in the jeopardy portion of their summary judgment brief, the threats facing the listed species and the required responses are “simply too interconnected” to have any response other than a response of a “suite” of “all-H” [habitat, harvest, hatchery, hydropower]  measures. In the 2014 BiOp, NOAA Fisheries and the Action Agencies developed a “suite” of 73 RPA actions that work collectively and all must achieve their required benefits to avoid jeopardy. These types of agency plans or programs require a single EIS.

2016 WL 2353647 at *57 (citations omitted).  He also concluded, with detailed reference to Ninth Circuit precedent, that the RPAs constitute “cumulative actions” and, thus, that t he alternatives to be weighed in an EIS were alternatives to those actions in total.  Id. at *61.

A single EIS, in short, should treat the entirety of the FCRPS, the full complement of mitigations that have been tried to date, and whatever “reasonable alternatives” remain.  And just to make the point, the judge offered that “[i]t is doubtful the Action Agencies could demonstrate that breaching, bypassing, or removing one or more of the Snake River dams is not “reasonable” under NEPA.  Id. at *61.

What NEPA Injunction?

The most compelling part of this chapter in the Pacific Northwest may yet be written, though, because the judge ordered supplemental briefing on the “NEPA injunction” to issue, specifically on the “reasonable deadline” to be set for the PEIS it was ordering the agencies to prepare.  In a follow up post, we’ll consider this particularly thorny question of NEPA relief.

{Image: Bonneville Dam powerhouse and fish ladder, Wikipedia}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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