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Federal Court Requires Wildlife Services to Analyze Climate Change Effects During ESA Consultations

May 7, 2008

The U.S. District Court for the Eastern District of California has now twice held that, where the best available science indicates that climate change could adversely affect listed species or critical habitat, NOAA Fisheries (“NOAA”) and the U.S. Fish and Wildlife Service (collectively, the “Services”) must analyze that information during consultations performed under Section 7 of the Endangered Species Act (“ESA”). Pacific Coast Fed’n of Fishermen’s Ass’ns v. Gutierrez (“PCFFA v. Gutierrez”);[1] Natural Resources Def. Council v. Kempthorne (“NRDC v. Kempthorne”).[2] This trend follows similar case law under the National Environmental Policy Act (“NEPA”) and state NEPA analogues in which courts are increasingly requiring agencies to analyze climate change impacts during environmental assessments.[3] Several listing petitions based on the effects of climate change on certain species are also currently pending before both Services.[4] If these species are listed, the Services may be required to conduct substantive analyses of climate change effects on those species and their habitat during consultations.

The PCFFA v. Gutierrez and NRDC v. Kempthorne cases also highlight the increasing competition for water resources between municipal water purveyors, agricultural users, commercial fishing groups, tribes, and federal agencies (particularly, for hydropower and listed fish). Effects such as longer droughts, declines in groundwater recharge, reduced water supplies, and increased water temperatures are occurring in, among other areas, the West, Southwest, Southeast, Gulf, and Mid-Atlantic regions of the United States.[5] Disputes over water allocation are likely to intensify, especially in drought-prone areas.[6] Significant compromises will be necessary in order to adapt to these resource limitations.

Plaintiffs in PCFFA v. Gutierrez argued that Bureau of Reclamation (“BOR”) plans for water projects in Central California were responsible in part for the decline of certain listed fish species. They challenged NOAA’s Biological Opinion (“BiOp”), completed as part of BOR’s Section 7 consultation with NOAA, assessing the impacts of the massive water projects on listed fish. NOAA determined that the projects would not jeopardize the species' continued existence or adversely modify their critical habitat. But in its BiOp, NOAA found several indicators that certain species face extinction. The federal district court held that NOAA violated the ESA and the Administrative Procedure Act (“APA”), and remanded the BiOp to NOA. The court also granted the plaintiffs' climate change claim based on NOAA's "total failure to address, adequately explain, or analyze the effects of global climate change on the species,"[7] and remanded BOR’s related biological assessment (“BA”) due to its similar failure to consider the effects that climate change could have on the species’ survival and recovery.

Factual Background

Typically, hundreds of thousands of fall Chinook salmon return to the Sacramento River to spawn each year. This year, scientists estimate that less than 60,000 will return. Accordingly, for the second time in the past three years, on May 1, 2008, NOAA declared a commercial fishery failure for the West Coast salmon fishery due to its “unprecedented collapse.”[8] NOAA scientists are studying the reasons for the collapse, and have identified shifts in ocean temperature and food sources as likely causes.[9] NOAA estimates that the West Coast commercial fishing industry will suffer over $60 million in direct losses.[10] The PCFFA considers water diversions to be “a major driver of the collapse.”[11]

The PCFFA v. Guttierez case was filed on August 9, 2005. The PCFFA, along with conservation groups and Indian tribes, filed suit against Carlos Gutierrez, in his official capacity as Secretary of Commerce; William Hogarth, in his official capacity as Assistant Administrator for NOAA Fisheries; Dirk Kempthorne, in his official capacity as Secretary of the Interior; and William Rinne, in his official capacity as Acting Commissioner, BOR (collectively, the “Federal Defendants”). The California Farm Bureau, San Luis & Delta-Mendota Water Authority and various irrigation districts intervened as defendants. The lawsuit is one of a series of cases concerning the adequacy of the Services’ consultations regarding the potential adverse impacts of ongoing Central Valley Project ("CVP") and California State Water Project ("SWP,” collectively, the “projects”) operations on listed fish, including Southern Oregon/Northern California Coast coho salmon, Central California Coast steelhead, North American Green Sturgeon, and Sacramento River winter-run and spring-run Chinook. Relevant to PCCFA v. Gutierrez and its companion cases, these fish require, among other things, “[a]dequate instream flows and cool water temperatures … for survival[.]”[12]

The CVP, an “extensive system of dams, tunnels, canals and reservoirs that stores and regulates water for California’s Central Valley and southward,” supplies 200 water districts, providing water to over 30 million people.[13] The SWP, operated by the California Department of Water Resources ("DWR"), is the largest state-built water project in the United States.[14] The projects have operated for over thirty years under a series of cooperative federal, state and local agreements, and “are subject to ever-evolving statutory, regulatory, contractual, and judicially-imposed requirements.” The Long-Term CVP and SWP Operations Criteria and Plan (“2004 OCAP”) provides a baseline description of the projects' operating facilities and operating environment.”[15]

Statutory Background

The ESA requires federal agencies to “insure that any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [designated critical] habitat.…”[16] Whenever a federal action may affect a federally listed species, the agency planning the action must consult with the appropriate Service under Section 7 of the statute.[17]

After consultation, investigation, and analysis, the Service prepares a BiOp.[18] The Service evaluates the effects of the proposed action on the survival and recovery of species and any potential destruction or adverse modification of critical habitat in the BiOp, based on “the best scientific and commercial data available.”[19] The BiOp includes a summary of the information upon which the opinion is based, a discussion of the effects of the action on listed species or critical habitat, and the consulting agency's opinion on "whether the action is likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.…"[20] In making its jeopardy determination, the Service evaluates "the current status of the listed species or critical habitat," the "effects of the action," and "cumulative effects."[21] "Effects of the action" include both direct and indirect effects of an action "that will be added to the environmental baseline."[22] The environmental baseline includes "the past and present impacts of all Federal, State or private actions and other human activities in the action area" and "the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early [S]ection 7 consultation."[23] If the Service concludes in the BiOp that jeopardy is not likely and there will not be adverse modification of critical habitat, or that there is a "reasonable and prudent alternative" to the agency action that avoids jeopardy and adverse modification and that the incidental taking of endangered or threatened species will not violate Section 7(a)(2), then the Service can issue an Incidental Take Statement which, if followed, exempts the action agency from the prohibition of takings set forth in ESA Section 9.[24] The issuance of a BiOp is considered a final agency action, and is subject to judicial review.[25]

Procedural Posture

In March 2004, BOR and DWR requested consultation under Section 7 for existing and proposed project operations. NOAA issued a BiOp in 2004 (the “2004 BiOp") in which it concluded that the effects of proposed project operations under the 2004 OCAP (i.e., continued operation of the CVP and SWP to divert, store, and convey project water) were not likely to jeopardize the continued existence of Central Valley steelhead, winter- or spring-run Chinook, and were not likely to adversely modify the critical habitat for the winter-run Chinook.[26]

In April 2006, due to NOAA’s April 2006 listing of a population segment of the North American Green Sturgeon as threatened under the ESA, BOR requested reinitiation of consultation on the 2004 BiOp. After reinitiation of consultation, Federal Defendants sought to dismiss, remand or stay this case. The court denied that motion on all grounds. In June 2007, the court granted defendants’ motion to dismiss Plaintiffs' Seventh Claim under NEPA for lack of jurisdiction. In its April 2008 opinion, the court addressed plaintiffs' summary judgment motion challenging BOR’s "early consultation" with NOAA and the adoption of the 2004 BiOp.[27]

The April 16, 2008 Summary Judgment Order in PCFFA v. Gutierrez

In its April 16, 2008 Order, the court ruled on the following claims, premised upon various alleged violations of the APA and ESA by NOAA and BOR: (1) that the no jeopardy conclusion in the BiOp is unsupported and contradicted by the administrative record, and therefore arbitrary, capricious, and an abuse of discretion under the APA; (2) that the BiOp improperly relies on adaptive management but fails to identify concrete actions to ensure protection of certain species; (3) that the Service failed to consider the best available science to reach its no jeopardy conclusions; (4) that BOR failed to ensure that its actions were not likely to jeopardize the continued existence of the several species at issue; (5) that BOR took actions that may affect listed species and their critical habitat without a valid BiOp; and (6) that BOR made irretrievable and irreversible commitments of resources that foreclose reasonable and prudent alternatives.[28]

NOAA failed to establish a reasonable connection between identified impacts to listed fish and its “no jeopardy” and “no adverse modification” conclusions

Analyzing whether NOAA failed to establish a reasonable connection between the impacts it identified and its “no jeopardy” and “no adverse modification” conclusions in the 2004 BiOp, the court determined that “not only do [NOAA’s] factual findings partly contradict its no jeopardy and no adverse modification conclusions, the factual findings are themselves internally contradictory.”[29] For example, the Service found that, “despite short-term increases in the population over the last three years, winter-run Chinook remain susceptible to extinction due to the elimination of most of their historical spawning grounds and reduction of their population structure,” and “the population may be declining at 3 percent per year and … is generally declining.”[30] Yet in the same discussion, the Service found that “it would appear that the winter-run Chinook salmon population is recovering.”[31] The court found similar contradictions in the Service’s findings and conclusions regarding spring-run Chinook.[32] With respect to Central Valley steelhead, the court found that the Service “paints a dark picture and anticipates regional extinction of [Central Valley] steelhead populations resulting from project operations and cumulative effects in most Project rivers,”[33] yet, “[c]ontrary to this materially negative evidence, [the Service’s] conclusion that no jeopardy to the species will occur and there will be no adverse effect on critical habitat … , is the diametric opposite of the … evidence.”[34] “When an agency's factual findings and analyses are contradictory, or when such findings and analyses contradict the BiOp's conclusion, the agency's path cannot reasonably be discerned.”[35] Accordingly, the court found that certain elements of the BiOp violated the APA and ESA, and granted plaintiffs’ motion for summary judgment on the issue.[36]

NOAA failed to conduct a comprehensive analysis of impacts associated with the entire federal action, including the effects of global climate change

The ESA requires the Services to address impacts associated with the entire agency action.[37] ESA regulations provide that “the effects of an agency action include ‘direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline.’”[38] Courts, not agencies, determine the meaning of “agency action” as a matter of law.[39] On this issue, the court determined that NOAA failed to analyze impacts associated with the entire federal action such as, among other things, the effects of global climate change on the hydrology of California rivers.

In both PCFFA v. Gutierrez and NRDC v. Kempthorne, plaintiffs alleged that the Federal Defendants failed to base their BiOps upon the best available science, which demonstrated that global climate change would significantly change the hydrology of Northern California's river systems.[40] The same federal district court recently determined that the U.S. Fish and Wildlife Service’s 2005 BiOp addressing the projects’ effects on the listed Delta smelt was invalid because, among other things, the Service failed to discuss or evaluate the impacts of climate change in relation to its no jeopardy conclusion.[41] In a May 2007 opinion in the Delta smelt case, the court determined that the Service “acted arbitrarily and capriciously by failing to address the issue of climate change in the BiOp. This absence of any discussion in the BiOp of how to deal with any climate change is a failure to analyze a potentially important aspect of the problem.”[42]

In PCFFA v. Gutierrez, plaintiffs alleged that the Service’s analysis in its 2004 BiOp “relies on temperature and hydrology models that assume the same monthly temperature, hydrologic, and climatic conditions experienced in the Project area from 1922 through 1994 will continue” until approximately 2029.[43] The court noted that, when NOAA was formulating its BiOp, “readily available scientific data existed regarding the potential effects of global climate change on the hydrology of the Project area river systems[.]”[44] Yet the court found that:

the BiOp does not discuss this global climate change data or mention that N[OAA], at a minimum, considered this data. Instead, the BiOp relies on past hydrology and temperature models that assume the historical monthly temperature, hydrologic, and climatic conditions experienced from 1922 through 1994 will continue for 25 years through the duration of the 2004 OCAP operations. These assumptions were challenged as without basis in then-available science.

Accordingly, the court granted plaintiff’s motion for summary adjudication “as to the climate change claim issue based on NOAA's total failure to address, adequately explain, and analyze the effects of global climate change on the species.”[45]

BOR also failed to analyze the effects of climate change on species and habitat

With respect to BOR’s BA addressing the effects of OCAP operations on listed species, the court found that BOR also did not discuss climate change. The court rejected the intervening defendant’s argument that BOR’s summary sentence that a species is “affected by climate” constitutes an “analysis of continuing climate change as related to salmonids.”[46] The court found instead that

[t]he true fact is that the word ‘climate’ only appears four times in the B[OR]'s OCAP BA, once in the text of the BA, three of these cites are found in the reference section that cites the article's titles. It is disingenuous to suggest based on the BA that … B[OR] considered global climate change. Neither the BA [n]or the NMFS BiOp did so. Federal Defendants, including [BOR], have acknowledged that the BiOp must be remanded to remedy this failure.…[47]

Accordingly, the court denied plaintiffs' and defendants’ motion for summary adjudication on this ground, conditioned upon remand and completion by BOR of a legally sufficient BA that considers global climate change.[48]

For more information on the ESA or climate change issues, contact Jessica Ferrell or any member of Marten Law Group’s Climate Change or Endangered Species and Natural Resources practice groups.

[1] No. 06-00245, 2008 U.S. LEXIS 31462 (E.D. Cal. April 16, 2008).

[2] 506 F.Supp.2d 322, 367-70 (E.D. Cal. 2007).

[3] See Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Admin., 508 F.3d 508, 510 (9th Cir. 2007) (annulling the average fuel economy standards for light trucks, in part because the defendant had not prepared an environmental impact statement; [t]he impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct.”); Los Angeles v. Nat’l Hwy Traffic Safety Admin., 912 F.2d 478 (D.C. Cir. 1990); Border Power Plant Working Group v. Dep’t of Energy, 467 F.Supp.2d 1040 (S.D. Cal. 2006) (requiring the Department of Energy to assess GHG emissions associated with a proposal to connect the southern California power grid to two coal fired plants in Mexico); Mid-States Coalition for Progress v. Surface Transp. Bd., 345 F.3d 520 (8th Cir. 2003) (requiring Surface Transportation Board to assess GHG emissions attributable to new rail line connecting power plants in the Midwest to coal fields in Wyoming); see also CEQ, Draft Guidance Regarding Consideration of Global Climactic Change in Environmental Documents Prepared Pursuant to the National Environmental Policy Act (1997); Ninth Circuit Requires Climate Change Analysis under NEPA, Marten Law Group Envt'l News (Nov. 28, 2007).

[4] See J. Ferrell, Marten Law Group: The Battle Over the Bear: Climate Change Playing a Larger Role in Species Protection, LexisNexis Environmental Law & Climate Change Center (Dec. 11, 2007) (discussing pending petitions based on climate change effects); see also J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 Boston Univ. L. Rev. 1 (2008). On April 28, 2008, the U.S. District Court for the Northern District of California ordered the U.S. Fish and Wildlife Service to publish the final listing determination for the polar bear on or before May 15, 2008. Ctr. for Biological Diversity v. Kempthorne, No. 08-01339 (N.D. Cal. April 28, 2008). If listed, the determination could have significant implications for activities conducted in and around polar bear habitat, particularly if and when the Service designates its critical habitat. If not listed, additional litigation is highly likely..

[5] See EPA, Water Resources, Climate Change (last visited May 3, 2008); EPA, Possible Water Resource Impacts in North America (last visited May 3, 2008) (citing IPCC, Climate Change 2007: Impacts, Adaptation, and Vulnerability (2007)).

[6] See, e.g., J. Kray, Federal Court Rejects Klamath Basin Irrigators’ Property Rights Claims Arising From 2001 Drought and Distinguishes Tulare Lake Decision, Marten Law Group Envt'l News (Sept. 28, 2005); J. Ferrell, Klamath Basin Decisions Leave Irrigators High and Dry, Marten Law Group Env’tl News (April 25, 2007).

[7] PCFFA v. Guttierez, 06-00245, 2008 U.S. LEXIS 31462 at *171.

[8] P. Reis, Federal ruling chastises NMFS, challenges Calif. water diversions, Landletter (04/17/2008) (subscription required).

[9] NOAA Fisheries, “Fishery Failure” Declared for West Coast Salmon Fishery (May 1, 2008).

[10] Id.

[11] Reis, supra; see also J. Barnard, Federal agency declares West Coast salmon fishery a disaster, Seattle PI (May 2, 2008).

[12] PCFFA v. Gutierrez, No. 06-00245, 2008 U.S. LEXIS 31462 at *27-28 (E.D. Cal. April 16, 2008). 

[13] Id at *7-8. 

[14] Id. at *8.

[15] Id. Specifically, the OCAP was prepared “to serve as a baseline description of the facilities and operating environment of the … CVP and … SWP.” Its companion Operations and Criteria document “identifies the many factors influencing the physical and institutional conditions and decision-making process under which the project currently operates. Regulatory and legal instruments are explained, alternative operating models and strategies described. The immediate objective is to provide operations information for the [ESA] Section 7, consultation.” Id. at *20-21 (quoting the 2004 OCAP).

[16] 16 U.S.C. § 1536(a)(2).

[17] Thomas v. Peterson, 753 F.2d 754, 763 (9th Cir. 1985).

[18] See generally Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife Serv., 273 F.3d 1229, 1239 (9th Cir. 2001).

[19] 16 U.S.C. § 1536(a)-(b).

[20] Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 481 F.3d 1224 (9th Cir. 2007) (citing 50 C.F.R. § 402.14(h)(3)).

[21] 50 C.F.R. § 402.14(g)(2)-(3).

[22] Id. § 402.02.

[23] Id.

[24] 16 U.S.C. § 1536(b)(4); ALCOA v. Administrator, BPA, 175 F.3d 1156, 1159 (9th Cir. 1999).

[25] Bennett v. Spear, 520 U.S. 154, 178, 117 S. Ct. 1154 (1997).

[26] PCFFA v. Gutierrez, No. 06-00245, 2008 U.S. LEXIS 31462 at *8-9. In addition to current operations, the project proposal included increased flows in certain areas, installation of an intertie between a canal and the California Aqueduct, a new water project and more water transfers, and renewal of long-term CVP water service contracts and future deliveries. Id. at *24. NOAA included mitigation measures in its BiOp related primarily to moving a certain temperature compliance point upstream maintaining carryover storage for a reservoir as a target, and operating a diversion dam to provide for unimpeded fish passage. Mitigation measures to be implemented in the future include, among others, environmental water account (“EWA”) assets, increased exports, and utilizing the EWA to augment water flows. Id. at *26.

[27] Id. at *8-10.

[28] Id. at *16-19.

[29] Id. at *121-25.

[30] Id. at *122-23.

[31] Id.

[32] Id. at *137-38.

[33] Id. at *138.

[34] Id. at *138-39.

[35] Id. at *123 (citing Homebuilders,127 S. Ct. at 2530).

[36] Id. at *125, *137-140.

[37] Id. at 152 (citation omitted).

[38] Id. (quoting 50 C.F.R. § 402.02).

[39]Id. (quoting Greenpeace v. NMFS, 80 F. Supp. 2d 1137, 1146 (W.D. Wash. 2000)).

[40] Id at 167; NRDC v. Kempthorne, 506 F.Supp.2d 322, 367-70 (E.D. Cal. 2007).

[41] NRDC v. Kempthorne, 506 F.Supp.2d at 367-70; see also J. Kray, Small Fish Causes Big Splash in California as State Ponders Water Rationing to Protect Endangered Species, Marten Law Group Envt'l News (Sept. 26, 2007) (discussing the May 2007 NRDC v. Kempthorne opinion).

[42] NRDC v. Kempthorne, 506 F.Supp.2d at 370 (internal quotations omitted).

[43] PCFFA v. Gutierrez, No. 06-00245, 2008 U.S. LEXIS 31462 at *167-70. NOAA admitted that it should have explained its conclusions about the effects of climate change on the species in its BiOp, and committed to address climate change in its forthcoming reinitiated consultation, consistent with the court’s opinion in NRDC v. Kempthorne. Id.

[44] Id. at *170 (citing scientific studies).

[45] Id. at *170-71.

[46] Id. at *188.

[47] Id.

[48] Id. at *188-89.

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