News from the Front #2: 

Why the "Best Science" Requirement in the Endangered Species Act Is Meaningless:  the Ninth Circuit Allows the Clinton Administration To Substitute Political Science for Biological Science

With a Regional staff of environmentalist political operatives masquerading as "conservation biologists", the National Marine Fisheries Service (NMFS) will soon tax electric ratepayers in the Pacific Northwest upwards of $1 billion a year (and hundreds of thousands of dollars per fish) to protect the same salmon runs NMFS allows to be caught and sold for $1.50 a pound. The program began in earnest in 1995, when Clinton Administration officials summoned the Administrator of the Bonneville Power Administration back to D.C. to order him to give NMFS what it wanted. The result: an extraordinary plan to try and manufacture Idaho salmon by releasing water from reservoirs in Montana and Eastern Washington, while sharply cutting proven methods of improving salmon survival, such as barging salmon downriver. (Environmentalists oppose "techno-fixes" for salmon that stand in the way of their overriding imperative of dam removal.)

Despite the D.C. woodshedding, BPA had the spine to declare "a different set of actions could more effectively satisfy responsibilities under the ESA [Endangered Species Act]", and that operations demanded by the political operatives at NMFS would "reduce . . . fish survival" and waste hundreds of millions of dollars a year. But, said BPA, it would "defer" to NMFS. Industrial customers, facing ever higher rates from exponential increases in salmon spending, sought judicial review of that decision.

On May 10, 1999, the United States Court of Appeals for the Ninth Circuit dismissed the petition for review. The Court began by determining that the Government need not disclose whatever had gone on in D.C., as if the Court could actually evaluate the lawfulness of the decision by reviewing only selected documents put forth by the Justice Department. The Court then issued three significant rulings: (1) BPA need make no effort to strike any accommodation between the ESA and its duty to market low-cost power; (2) BPA could acquiesce in a Clintonesque finding that increasing salmon survival decreased it; and (3) the ESA's requirement that agencies use the "best science" in ESA decisionmaking would not be enforced.

BPA is under statutory duties to provide "economical" power for sale at the "lowest possible rates", as well as protecting salmon. How could it discharge these duties by wasting money and killing fish? The Court observed that doing whatever fish and wildlife agencies want protects BPA officials from after-the-fact claims for civil and criminal penalties, as if Congress intended their personal protection to guide agency decisionmaking. In the Ninth Circuit, blind deference to the fish and wildlife agencies, without more, is apparently an adequate explanation for disregarding all statutory duties except what the Court called "the imperative nature of the ESA". As far as the Ninth Circuit is concerned, federal agencies in the Pacific Northwest need pay no attention to other statutory duties, so long as whatever they are doing is asserted to help endangered species.

NMFS' regulations declare that BPA's operations jeopardize the continued existence of salmon if they "reduce appreciably the likelihood of both the survival and recovery of listed stocks"—a predicate for NMFS' attempts to manage BPA operations. Here, NMFS declared that hydropower operations jeopardized the continued existence of salmon because even though BPA proposed to increase salmon survival, the needs of the fish were not met (based on computer models that assumed continued overfishing). The Ninth Circuit had no trouble finding that an increase in survival could constitute an "appreciable reduction" because "the species already stands on the brink of extinction, and the incremental improvements pale in comparison to the requirements for survival and recovery". Neither of these statements was true. More importantly, all listed species are needy, and no citizen or agency entangled in the ESA can ever meet their "requirements".

The ESA requires agencies to use "the best available scientific and commercial data", which the Supreme Court has told us is necessary not only to protect endangered species, but also to protect citizens from "needless economic dislocation by agency officials zealously but unintelligently pursuing their environmental objectives ". The Ninth Circuit has no interest in that task, however, declining to become involved in what it called a "rehash of the multi-year scientific debate". Although NMFS' 166-page biological opinion did not so much as mention the best scientific data—showing, for example, that the survival of salmon through dams is not significantly different than the survival through a natural river, and that listed stocks face virtually no likelihood of extinction—the Court declared that "NMFS engaged in a detailed analysis of these issues and weighed the available data". There is no indication in the opinion that the Court even bothered to review the science and its significance.

Pacific Northwest practitioners can only look with longing to circuit courts that still review the lawfulness of agency actions. Competent practitioners with clients facing ever more invasive federal salmon recovery plans must advise their clients that nothing constrains salmon recovery actions of federal agencies other than politics, and to get along, they better go along. The officials know this, and grow bolder and ever more demanding.

James Buchal, June 17, 1999

Link to the industrial customers' Petition for Rehearing of the May 10th decision.

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