We're pleased to announce that Eric Christensen will be speaking at Law Seminars International's 14th Annual Comprehensive Conference on Clean Water and Stormwater. Eric will be participating in a panel discussing renewal of the Columbia River Treaty and how this may affect water flows and water quality in the Columbia. We hope to see you there!
Recently in Endangered Species Act Category
In its latest effort to put to rest the years-long controversy that has swirled around its efforts to address excessive electricity production during periods when high winds coincide with high water in the Columbia River system, the Bonneville Power Administration ("BPA") recently issued a draft Record of Decision ("ROD") allocating the costs of such events. While wind generators argued for allocating all such costs to BPA's power customers and BPA's power customers urged BPA to assign all such costs to its transmission customers, BPA chose a third path. In the recent draft ROD, issued by newly-minted BPA Administrator Elliot Mainzer, BPA concluded that it should allocate oversupply costs to those generators operating within its balancing authority area that have scheduled power during an oversupply event. BPA's chosen alternative was supported by only one out-of-region entity, so it is unlikely to end either the controversy or the protracted litigation that has resulted.
As we have previously reported, the oversupply problem is an unintended consequence of the rapid expansion of wind generation in the Pacific Northwest. The wind fleet's capacity in the region now exceeds 7,000 MW, with 4,500 operating in BPA's balancing authority area. The oversupply problem arises when strong spring winds coincide with high spring runoff in the Columbia River Basin. In this situation, the combined electric power produced by federal dams on the Columbia River and wind generators in the region can exceed electrical loads. Further, the obligation to maintain dissolved gases within limits set by environmental authorities in order to avoided gas bubble trauma in fish (especially endangered salmon and steelhead runs), limits the amount of water dam operators can release over spillways, which adds to dissolved gas loads, requiring them instead to run the water through generators.
While rejecting the potentially most far-reaching claim of the environmental petitioners, the U.S. Court of Appeals for the Ninth Circuit yesterday remanded the Northwest Power and Conservation Council's ("Council") Sixth Power Plan to correct two perceived errors. The opinion is the latest chapter in the Pacific Northwest's "salmon wars," a decades-long political and legal struggle to balance the health of the region's iconic salmon runs with its economically vital hydroelectric power system. Northwest Resource Information Center, Inc. v. Northwest Power & Conservation Council, No. 10-72104 (issued September 18, 2013).
The Council is the body designated under the Northwest Power Act to develop a plan that provides a robust regional fish and wildlife conservation program, while preserving the value of the regional hydroelectric system. The power planning process is the core mechanism employed by the Council to achieve this balance. Hence, changes to power planning process can have far-reaching consequences.
In the latest chapter of decades-long litigation over the treaty rights of Washington's Native American tribes, the U.S. District Court for the Western District of Washington recently ordered three Washington state agencies to remove culverts from state-managed roads that block access to salmon spawning habitat. (U.S. v. Washington, No. CV 70-9213 (issued March 29, 2013)). The order requires culvert replacement to be completed by the fall of 2016 on state recreational lands, and by 2030 on highways administered by the Washington State Department of Transportation ("WSDOT").
The litigation has roots dating all the way back to Washington's earliest days as a U.S. territory. Among other duties, Isaac Stevens, Washington's first territorial governor, entered a series of treaties with Washington's Native American tribes. In return for ceding large amounts of land, the Stevens treaties provided: "The right of taking fish at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory." More than a century later, this language became the linchpin of the U.S. District Court's foundational 1974 opinion, United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), which held that the Stevens treaties entitled the tribes to fifty percent of the state's "harvestable" fish. Often called the "Boldt Decision," after its author, the late District Judge George Boldt, the decision was the culmination of a political movement, complete with civil disobediance, celebrity "fish-ins, and sometimes violent clashes. The decision was upheld by the U.S. Court of Appeals for the Ninth Circuit and largely upheld by the U.S. Supreme Court. The practical result of the decision is that Washington's tribes have become "co-managers" of the state's fishery resources.
In a decision with strong overtones for climate policy and federal permitting of projects that release greenhouse gases, the U.S. Court of Appeals for the D.C. Circuit today affirmed the U.S. Fish & Wildlife Service's ("FWS") decision to list the polar bear under the Endangered Species Act ("ESA"). The FWS decision, which is based on the danger to polar bear populations caused by declining sea ice in the Arctic, is one of the first major federal policies to address the consequences of climate change. Further, the decision means that projects releasing major quantities of greenhouse gas emissions may run afoul of the ESA, and that consultation with FWS under the ESA may become a routine regulatory requirement for such projects.
Legally, the decision is rather unremarkable. The petitioners, a group of industries, states, and aligned interests, challenged the FWS's listing decision on a number of technical grounds. But, as the D.C. Circuit observed, the challenges amount to "nothing more than competing views about policy and science." Under the familiar "arbitrary and capricious" standard of review for decisions of administrative agencies, such disagreements are insufficient to overturn an agency decision. Rather, as long as the agency has considered all the evidence, adequately explained its decision, and acted within the law, its decision, even if controversial, is not arbitrary and capricious. The D.C. Circuit concluded that the FWS did not act arbitrarily in the face of numerous challenges to its listing decision.
Pesticides and Pacific Salmon: The Long and Winding Litigation Road Gets Longer as the Fourth Circuit Strikes Down NMFS's Biological Opinion
Last week, the U.S. Court of Appeals for the Fourth Circuit struck down the National Marine Fisheries Service's Biological Opinion ("BiOP") concluding that certain pesticides jeopardize endangered Pacific salmonid species. The Fourth Circuit's ruling is the latest volley in litigation dating back more than a decade concerning the impacts of pesticide exposure on endangered salmon and steelhead. Because the Fourth Circuit remanded the BiOp for further action, the Court's opinion will not be the last word.
The litigation has its roots in the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA"), which requires the Environmental Protection Agency ("EPA") to register pesticides before they can be sold. Under 1988 amendments to FIFRA, EPA is required to re-register any pesticide that was originally registered prior to 1984 and, in doing so, to examine data concerning, among other things, whether the pesticide has "unreasonable adverse effects" on the environment. The first shot in the litigation war was fired in 2001, when a coalition of environmental groups filed suit in the U.S. District Court here in Seattle, successfully arguing that EPA's registration of pesticides is a "federal action." Because registration is a "federal action," EPA is required to consult under the Endangered Species Act ("ESA") with the relevant federal agencies to ensure that registration does not jeopardize the survival of listed species. The District Court's opinion requiring consultation was affirmed by the U.S. Court of Appeals for the Ninth Circuit in 2005.