News from the Front #43  

The Decline of Law Continues:  Court Attacks Decisionmaking on Snake River Dams 

On February 16,  2001, Judge Helen Frye, United States District Judge for the District of Oregon, issued an opinion granting the motion of the National Wildlife Federation and several other environmentalist groups for summary judgment against the U.S. Army Corps of Engineers.  The environmentalists claim that the Corps' operation of the Snake River Dams violated the Clean Water Act.  Specifically, they allege that operation of the dam violates water quality standards for temperature and dissolved gas issued by the State of Washington.  Claiming to represent the salmon -- none of which appear to be dying from water quality problems in the Snake River -- the environmentalists point out that spill over dams sometimes  causes excessive levels of total dissolved gas, and that reservoirs make lakes which absorb more heat from the sun than rivers would.

Spilling water over dams does create higher levels of total dissolved gas in the water, but environmentalists have been pushing for higher spill levels for years to protect salmon.  And reservoirs may, in theory, absorb more heat than rivers, but the effect is much too small to measure.  (Curiously, measurements show a cooling trend since the Snake River dams went in.)  The most important effect of  reservoirs is to provide deep, cool water refuges that protect salmon from high temperatures; no one disputes that peak temperatures in the natural, pre-dam Snake River river were far higher.  But no matter what the Corps does, water in the Snake River will continue to fail to meet Washington State quality standards, because you can't make rivers cold in August.  So it must be the dams' fault, and the dams must violate the Clean Water Act. 

Indeed, the environmentalists want the Court to believe that Congress outlawed all dams when it passed the Clean Water Act, since all dams will make reservoirs, and spill water during periods of high river flow.  The Clean Water Act was primarily designed to regulate point sources of pollution, establishing a national permit system for pipes discharging pollutants into water.  "Non-point" sources of "pollution" -- like dams -- were to be the subject of studies and informational measures. For example, in  304(f) of the Clean Water Act, Congress told EPA to provide information -- not issue regulations -- about "processes, procedures and methods to control pollution resulting from . . . change in the movement, flow or circulation of water . . . caused by the construction of dams."  Nothing in the Act gives the slightest hint that Congress was empowering anyone to regulate dams, much less demand their removal.  

The environmentalists point to  313 of the Clean Water Act, which provides that every federal agency "(1) having jurisdiction over any property or facility, or (2) engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants . . . shall be subject to, and comply with, all Federal, State, interstate and local requirements . . . respecting the control and abatement of water pollution in the same manner, and to the same extent as any nongovernmental entity . . ."  You won't find the statute analyzed in the Court's opinion, just the Court's conclusion:  the Corps of Engineers must "comply with" Washington State water quality standards. 

The Court doesn't explain what it means to "comply with" the standards, or even whether the Corps violated them. The Corps tried to explain that the law requires it to operate dams, and they do their best to meet water quality standards with the control over dam operations they have -- most of the river flow cannot be controlled.  The enviros and the Court didn't and couldn't say how the Corps should run the dams better.  The enviros want to remove the dams, after all, not run them better.  But the Corps has no authority to remove the dams, at least so long as "law" has any meaning.  

The Court was spared the necessity of determining whether the Corps actually violated the Clean Water Act because the environmentalists couldn't sue the Corps for violating the Clean Water Act.  Congress set up a special "citizen suit" remedy for suits against people who actually do violate the Act, but Congress didn't allow suits under  313.  So the environmentalists sued under a general "Administrative Procedure Act", under which Courts can set aside agency action if "arbitrary, capricious, an abuse of discretion, or otherwise contrary to law".  

The Oregonian, quick as ever to brainlessly parrot enviro-lies, immediately proclaimed that the Court "ruled that the U.S. Army Corps of Engineers violates the Clean Water Act with its four hydroelectric dams on the Snake River".  But that's not what the Court did at all.  Instead, the opinion complains that the Corps' decision documents "do not explicitly address the legal obligations of the Corps under the Clean Water Act".  This, says the Court, was a "clear error of judgment". 

Looking through the mass of lies in the administrative record emanating from EPA, the state and tribal fisheries agencies, and the enviros, the Court found "substantial doubt as to whether the Corps has complied with its legal obligations under the Clean Water Act".  That phrase, "legal obligations", echoes throughout the opinion, as a peculiar substitute for what ought to be in the opinion:  an explanation of what the legal obligations are.

One can't tell from the opinion whether the Court knows that if "complying with legal obligations" means making a cool river in August, the Corps will always be out of "compliance".  The Court wasn't willing to hold that the environmentalist position has no basis in the Clean Water Act:  you don't violate the Act just by owning a chunk of concrete that alters the flow of the river.  Indeed, the Court went so far as to quote an earlier Endangered Species Act opinion by Judge Marsh rejecting any distinction between effects arising from operational choices at the dams and effects arising from the existence of the dams.  The Ninth Circuit had vacated Judge Marsh's palpably-erroneous judgment in that case, but the Court did not disclose this.  Perhaps as judicial opinions evolve into political statements, normal conventions about citing vacated authority don't apply.  Ultimately, the Court makes no effort to explain just how the Corps might have violated the Clean Water Act.  Perhaps a failure of proof doesn't matter when it is an article of faith that dams are evil.  

So the Court resorts to a role vaguely reminiscent of that employed in the Cultural Revolution when class guilt was certain but proof of crime was absent:  demands for self-criticism.  For that is precisely what the Court has ordered the Corps to do.  Not to improve operation of the dams, but to "issue a new decision replacing the 1998 Record of Decision which addresses its compliance with its legal obligations under the Clean Water Act within sixty days of this order".   

So now the ball is in the Corps' court.  It's obvious what would have happened under the Clinton/Gore Administration.  They would have misinterpreted the Court's order just like The Oregonian, hailing it as the excuse to waste  thousands more megawatt-hours of electricity, and move the de-industrialization agenda along.  

Now we get to see what the Bush Administration will do.  Maybe they'll clean house at EPA, and let the Justice Department tell the Court that Congress didn't outlaw dams when it passed the Clean Water Act, so that the Corps is not breaching any "legal obligations".  Maybe they'll even start applying the Clean Water Act where the water isn't clean.  

James Buchal, February 19, 2001

You have permission to reprint this article, and are encouraged to do so. The sooner people figure out what's going on, the quicker we'll have more fish in the rivers.

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