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News from the Front #26:

More Bad Advice from the Justice Department Dambusters

We hear that the Justice Department is advising the Commerce Department, overlords of NMFS, that the new Biological Opinion on the Federal Columbia River Power System (the "BiOp") will not be "legally defensible" unless it includes a dam removal trigger.  Specifically, NMFS is set to insist that dam operators somehow ensure quick increases in several runs of Idaho salmon.  If the fish don't come back, the dam operators must then recommend dam removal to Congress. 

It is worth recalling the basic structure of the Endangered Species Act:  agency action is supposed to go forward unless it (and not something else) would jeopardize the continued existence of a listed species.  The first thing wrong with saying that dam removal has anything to do with the Endangered Species Act is that dams aren't an action.  They are a thing. 

Congress wanted to stop people from doing things that wiped out listed species.  But Congress didn't want to blow things up that were already there.  So how on earth can the Endangered Species Act require blowing up dams?  Of course it can't.  The Endangered Species Act is also, by its express terms, not retroactive, making it especially silly to think that it requires blowing things up that preceded the Act. 

If dam operators can't tinker with dam operations to recover salmon, that's tough; there is no agency action to be forbidden by the Act.  A court cannot enjoin the Columbia River from flowing downstream past the dams.  This is no tragedy for salmon, as we can rely on the hundreds of other statutes and rules and ordinances and permits and orders to protect salmon.  

The bottom line is that tweaking the hydrosystem will never bring back the salmon, and neither will removing the Snake River Dams.  Removing the Snake River dams would have a barely measurable effect on Idaho salmon populations in the long run.  The effect could even be negative, to the extent transportation provides better-than-natural survival. 

The big lie of the BiOp is not the dam removal trigger, but the false conclusion that current operations of the Federal Columbia River Power System jeopardize the continued existence of Snake River and other salmon.  If NMFS used science and law, not politics, to reach its conclusions in the BiOp, it would be a "no jeopardy" BiOp.  There is then no need to even reach the question of whether there should be a "reasonable and prudent alternative" to current operations, with or without a dam removal trigger. 

Another big lie is that NMFS' recommendations in the BiOp will improve salmon survival.  Leaks suggest that NMFS proposes to kill more salmon by spilling more and transporting less.  (Spill at one dam, where somebody bothered to measure the effects and found for several years that it was killing fish, will be reduced.)  Operations that would actually increase salmon survival (transporting more fish) are not even on the table.  It's not about the fish.

NMFS admits that Congressional consent is required to authorize removal of the dams.  Thus all the BiOp will do is require the agencies to "recommend" dam removal to Congress.  In substance, the Justice Department is advising that one law (the Endangered Species Act) requires an agency to recommend enacting another law (the dam removal act).  This is not legal reasoning, but mere unsupported assertion.  Just because a lawyer says something does not make it the law.  Especially a Justice Department lawyer.

There are a host of less important "technical" legal reasons it is stupid to assert that the Endangered Species Act requires the BiOp to contain a dam removal trigger.  The Endangered Species Act regulations identify three attributes of a "reasonable and prudent alternative", none of which square with dam removal.  Dam removal cannot "be implemented in a manner consistent with the intended purpose of the action [operating dams]".  Dam removal cannot "be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction", though the agencies can presumably recommend it.  And dam removal is not "economically and technologically feasible", though a crooked final EIS will be in place to provide support for that notion. 

Turning the realm of real legal reasoning, a removal recommendation years away has no tangible effect on fish now.  If a set of dam operations jeopardizes salmon, it will jeopardize them whether or not agencies put pen to paper to plead with Congress.  A court could well view the trigger as a promise of future mitigation efforts, and such promises have long been held insufficient to pass muster under the ESA.  Thus the action Justice asserts will insulate the BiOp from judicial intermeddling may well have precisely the opposite effect:  a court may determine that but for the trigger, NMFS would not have found "no jeopardy" arising from the "reasonable and prudent alternative", yet NMFS cannot consider the trigger in assessing whether the alternative jeopardizes the salmon.  This may be what Justice really intends to occur.

Justice really wants to create new law, not follow existing law.  Its political operatives are trying to tie the agencies to dam removal notwithstanding the likely crash and burn of the Gore machine.  If Justice has its way, a new Administration that wants to wander from the One True Path to salmon recovery by changing the BiOp to remove the trigger will be required to explain its reasoning in detail to the courts, which may exhibit little deference toward sharp changes in administrative policy.  (It would be more cost-effective in terms of lawyer time to cut the Gordian knot by de-listing the salmon, as a solid case can be made that no appropriately-defined salmon "species" is in danger of extinction.)

And what if a new Administration does nothing useful to change the BiOp, and the courts stay their hand—what then will Justice's trigger accomplish?  It all depends on ocean conditions, yet another reason the trigger is irrational.  If the fish don't continue to come back in droves, the trigger is pulled, and agencies must seek authorization for dam removal.  By then, dam lies may have polluted much of the national media and consciousness, and Congress may well go along with it.

And what if Congress says no?  We then have a finding that dam operations are wiping out the salmon, the pre-selected remedy, and a virtual invitation for courts to step in.  And they will have jurisdiction over an agency, the Bonneville Power Administration, that is sitting on billions of dollars, more than enough to blow up the dams, particularly when our Delegation will probably pay in advance for the plans.  Judge Rothstein in Seattle already scrutinizes agency budgets to see if lack of funds is a true excuse for ESA noncompliance.  

Law will have to collapse much further before courts actually presume to order the agencies to blow up the dams directly, but the Clinton/Gore Administration is busy packing the courts with the right kind of judges, and the Republican "leadership" goes along with it.  When the right traps are laid, the courts can cause enough trouble indirectly to force dam removal.  In short, if Justice has its way, Congress' role could ultimately be reduced to handing out pork to mitigate a judicial dam removal disaster.  

The Senate is expected to hold a hearing on the new BiOp on June 14^th, though that date may slip since the BiOp has yet to be released.  Maybe some of you out in Readerland can work to get our Senators to understand how the dogs they have set loose upon us are plotting to lock in dam removal.  

    © James Buchal, June 2, 2000

Links:  News from the Front #11:  The Justice Department's initial dambusting efforts

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