National Wildlife Federation v. National Marine Fisheries Service

This case involves a legal challenge to NOAA Fisheries' 2014 Biological Opinion (BiOp) concerning the Federal Columbia River Power System (FCRPS). The FCRPS consists of hydroelectric dams, powerhouses, and reservoirs on the Columbia and Snake Rivers. Thirteen species or populations of Columbia or Snake River salmonids (salmon and steelhead) are listed as endangered or threatened under the ESA. The litigation began in 2001, with Plaintiffs challenging various BiOps issued since 2000. Each BiOp was previously invalidated by the court for various deficiencies. The 2008 BiOp found that FCRPS operations would jeopardize listed species but proposed 73 "reasonable and prudent alternatives" (RPAs) to avoid jeopardy. The 2014 BiOp supplemented the 2008 BiOp and concluded the RPAs would avoid jeopardy and adverse modification of critical habitat. Plaintiffs challenged the 2014 BiOp under the ESA and for the first time challenged the Action Agencies' failure to prepare an Environmental Impact Statement (EIS) under NEPA.

• Whether NOAA Fisheries' 'trending toward recovery' jeopardy standard complies with the ESA
• Whether the 2014 BiOp properly analyzed effects on recovery of listed species
• Whether the 2014 BiOp properly considered climate change impacts
• Whether habitat improvement actions are reasonably certain to occur and have scientifically supported survival benefits
• Whether reliance on kelt management and avian predation mitigation was arbitrary and capricious
• Whether the 2014 BiOp properly analyzed adverse modification of critical habitat
• Whether the Corps and BOR violated NEPA by failing to prepare an EIS for the RPA

The 2014 BiOp was remanded to NOAA Fisheries for further consultation to be completed by March 1, 2018. The BiOp was not vacated and remains in effect during the remand. The Action Agencies must continue to fund and implement the 2014 BiOp until a new BiOp is prepared. The Action Agencies are ordered to comply with NEPA. The court retained jurisdiction to ensure compliance.

The binding legal principles established are: (1) Under the ESA, a jeopardy recovery analysis cannot rely on a 'trending toward recovery' standard that considers only whether populations are increasing without regard to actual abundance levels, minimum viable populations, or recovery endpoints; (2) The ESA requires that the risk of uncertain mitigation benefits must fall on the project, not the endangered species—agencies cannot rely on achieving precisely the survival benefits needed to avoid jeopardy when those benefits are scientifically uncertain, without building in a margin for error; (3) Mitigation actions may only be relied upon if they are reasonably specific, certain to occur, and capable of implementation, with specific and binding plans and clear commitments of resources; (4) Climate change impacts must be analyzed using best available science, including consideration of additive harms, reduced effectiveness of mitigation measures, and potential catastrophic events; (5) When federal action agencies adopt records of decision implementing BiOp RPAs, they trigger NEPA obligations; (6) A comprehensive or programmatic EIS may be required when multiple actions constitute a single plan, proposal, or are 'connected,' 'cumulative,' or 'similar' actions that should be analyzed together under NEPA.

The court observed that for more than 20 years, the federal agencies have ignored admonishments to consider more aggressive changes to the FCRPS, instead continuing to focus on the same approach while spending billions of dollars without success. The court noted that Judge Marsh previously stated the FCRPS 'cries out for a major overhaul' and Judge Redden repeatedly urged consideration of breaching the four Lower Snake River dams. The court suggested that a comprehensive NEPA process may finally break through bureaucratic logjam and allow innovative solutions, noting that dam breaching or removal might be more cost-effective than continuing to spend hundreds of millions on uncertain habitat restoration. The court also noted its concern with NOAA Fisheries' inconsistent treatment of uncertainty, relying on uncertain information when it supported the no-jeopardy conclusion but disregarding uncertain information that might undermine that conclusion. The court emphasized that in our constitutional democracy, courts do not determine substantive policy, but do ensure agencies comply with Congressional directives in the ESA and NEPA.

This case is significant because it addresses the scope and rigor required under the ESA's jeopardy analysis, particularly regarding recovery of endangered species. The court rejected NOAA Fisheries' 'trending toward recovery' standard that did not account for dangerously low population abundances or establish recovery endpoints. The decision emphasizes that the ESA requires giving the 'benefit of the doubt' to endangered species and that agencies cannot rely on mitigation measures with uncertain benefits without building in a margin for error. The case also clarifies that federal action agencies adopting BiOp RPAs must comply with NEPA and may be required to prepare comprehensive or programmatic EISs when the RPA constitutes a single, interconnected plan. This was the latest in a 20+ year litigation saga over FCRPS operations and listed salmonids, with the court expressing frustration that agencies continued to rely on essentially the same approach (hydro-mitigation and habitat restoration) rather than considering more aggressive alternatives like dam removal or breaching.