When justice department attorneys cannot throw citizens out of court for lack of “standing”, they have an additional powerful weapon in their arsenal: claims of “mootness”. The idea behind mootness is a simple one. The Supreme Court long ago decided, based on language in the Constitution declaring that the federal judicial power extends to resolving “cases or controversies”, that the Court should not and would not be in the business of giving federal officials advisory opinions on the lawfulness of their actions. That would be left to the government’s lawyers.
From this acorn of a decision against advisory opinions, a mighty oak tree of doctrine grew to the point where most of the legal arguments we have advanced to challenge federal salmon decisions have never been resolved. Almost every time we would make a claim, the federal government would declare that it was too late to provide effective relief, because conditions had changed.
In the endangered species context, the government often issues decisions that cover only a year’s worth of harvest, hatchery operations, grazing, or whatever. This means that by the time a court is ready to reach the merits of the claim, the year is usually already over. Endangered Species Act decisions are typically not published in the Federal Register, and citizens generally find out about them after the fact, unless they are intimately involved in the decisionmaking. After that, the Act requires a two-month notice and waiting period before suit can be filed.26 Then the government has two more months to answer the complaint. The government will then typically seek extensive delays for the preparation of the “administrative record”. By 1997, the government has taken as long as a year just to come forth with the “administrative record”.
In PNGC v. Brown, we had sued about events concerning the federal government’s decisions in 1992. Judge Marsh did not make his decision until April 1, 1993. We had complained that hatchery releases had proceeded in 1992 despite a failure to conduct any analyses of harm to endangered salmon, as required by § 7 of the Act. For example, juvenile hatchery steelhead have an unfortunate tendency to eat endangered juvenile chinook salmon, because the steelhead are much larger, a phenomenon that biologists observing the salmon call a “common sight”.27 We thought that if the fish and wildlife agencies really wanted to comply with the Endangered Species Act, they might bother to at least figure out how many endangered fish were lost through hatchery releases in § 7 consultations. They never have, and unless someone sues them again, they probably never will.
In response to our hatchery claims, the government lawyers told Judge Marsh that they were going to do a hatchery analysis next year. Ignoring Supreme Court authority stating that a promise is not enough, Judge Marsh declared that because the government was now starting the required analyses, the claim was moot.28 The Ninth Circuit affirmed his decision with a single sentence. They didn’t discuss the Supreme Court precedent either.
As for the government’s failure to do the § 7 analyses for grazing permits and other activities on federally-managed land, Judge Marsh complained that “because these plaintiffs have relied upon generalized claims . . . it is impossible to tell if the generalized failures are of such short duration that they may evade review.”29 He did not address the highly specific “bill of particulars” he had required us to prepare. Thus with no trial and no discovery, the habitat claims were thrown out, apparently because it was not enough to prove that the government had violated the law, so long as the government promised to do better.
How then, do environmentalists manage to win their lawsuits? The mootness doctrine contains an exception for “extraordinary cases” that are “capable of repetition yet evading review”. This means whatever the courts want it to mean. Abortion cases are nearly always decided, because it takes more than nine months to get the Court of Appeals, and the case would evade review. Salmon cases are sometimes decided and sometimes not, even though it takes more than a year to get to the Court of Appeals, and by the time you get there, the government has probably issued a new salmon decision.
One of our worst experiences with mootness came in a case where we sued BPA in the Ninth Circuit. BPA Administrator Randy Hardy had, over the objections of his staff, decided to cave into National Marine Fisheries Service demands for operational changes at the dams, which were expressed in a 1993 biological opinion issued pursuant to § 7 of the Endangered Species Act. In particular, Mr. Hardy directed BPA to expand significantly the flow augmentation strategy for salmon recovery.
For purposes of the National Environmental Policy Act (NEPA), Administrator Hardy's formal Record of Decision was supported by the same Supplemental Environmental Impact Statement (SEIS) that the environmentalists had indirectly challenged in the District Court before Judge Marsh in their transportation lawsuit.
We decided to challenge the adequacy of the SEIS—albeit for quite different reasons than the environmentalists. We thought that the National Environmental Policy Act required BPA and other agencies to consider the environmental impact of major reductions in clean and renewable hydropower. Increases in flow augmentation in the 1990s have cut BPA's firm load carrying capability by anywhere from 2,000 to 5,550 average megawatts of electricity.30 That's as much electricity as would be generated by two large nuclear plants or dozens of combustion turbines. Deciding to buy that much power, instead of letting water run through the turbines at the dams, is a decision with very significant consequences to the environment. Nearly all of that electricity comes from burning fossil fuels; some comes from nuclear plants. You have to burn a lot of something to make that much electricity.
The SEIS contained virtually no analysis about the environmental impacts from generating increased electricity from fossil and nuclear fuel. The SEIS dismisses the consequences as "difficult to assess" and says that the effect of increased pollution "is considered to be small".31 The language is carefully chosen. It means that the government is not willing to actually figure out the effects of generating as much pollution as four power plants.
Fergus Pilon, the General Manager of the Columbia River People’s Utility District, has calculated that building enough of the cleanest power plants—combustion turbines burning natural gas—to replace electricity lost by removing the four Lower Snake dams would, each year, generate 222 tons of particulates, 148 tons of SO2, 518 tons of NOx, 148 tons of CO, and 2,588,000 tons of CO2. If John Day Dam were removed as well, these figures would roughly double.32 One estimate suggests that the resulting pollution would be "equivalent to about 3,300,000 more cars traveling 11,000 miles [a year] at 20 miles per gallon".33
It is especially ironic that the Clinton/Gore attack on hydropower is going hand in hand with aggressive efforts to promote global warming theories. Some recent reports suggest that if present trends continue, the earth could be almost five degrees warmer by the year 2100.34 That would move most of the salmon populations north, entirely out of the continental United States. Only Alaska would have salmon left.
Hydropower is the only large-scale method of generating electric power (other than nuclear power) that does not promote CO2 buildup. Other than effects on anadromous fish, it is a clean and renewable resource. Yet because the Clinton/Gore administration opposes hydropower, we have shut down gigawatts of power and spewed forth huge quantities of air pollution, with no benefit to salmon runs.
Before commercial salmon harvest interests co-opted Northwest environmentalists, hydropower used to be seen as the best way to generate electric power. Even the citizens of the imaginary Pacific Northwest environmental paradise Ecotopia continued to use hydroelectric dams, albeit while developing solar and other cleaner technologies.35
On October 22, 1993, we filed a petition in the Ninth Circuit for review of the Record of Decision. We fully briefed the case, explaining how BPA had violated NEPA (and several other federal statutes). A week or so before oral argument, the government came out with a new biological opinion. The new opinion also contained no analysis of the effects of decreased hydropower production. Nevertheless, the Court dismissed our challenge as moot.
In theory we could start from scratch and bring a whole new lawsuit to raise exactly the same questions. As you might imagine, our clients had a difficult time understanding the logic of this decision.
At the same time, the environmentalist and fishermen’s anti-transportation case against the National Marine Fisheries Service and the Corps of Engineers was before the Ninth Circuit. The cases were argued the same day, in front of the same judges. The enviro/harvester coalition had, ironically, made the very same claim we had: they too thought the SEIS was inadequate, because it did not include environmental analysis of the effects of smolt transportation.
The Court decided, for reasons that remain a mystery to me, that the environmentalist challenges to the SEIS were not moot. However, the environmentalists lost too, because although the Court at least considered their claims, it rejected them on the merits.
27 B. Harden, A River Lost 227.
28 PNGC v. Brown, 822 F. Supp. at 1507.
29 PNGC v. Brown, 822 F. Supp. at 1507.
30 See M. Schultz & A. Chilingerian, "Impact of Draft Biological Opinions on the Northwest Electric Power System and Facilities", Report to PNUCC, Feb. 9, 1995, at 12.
31 SEIS at 4-105; SEIS at H-75.
32 Letter, Fergus Pilon to Sen. Wyden, Aug. 26, 1997, at 2.
33 M. Eldridge, Testimony to the House Committee on Resources, May 31, 1997, at 2 (mimeo). Mr. Eldridge is the General Manager of the Umatilla Electric Cooperative.
34 See, e.g., "1995 Captures Record as Warmest Year Yet", Science News, Vol. 149, Jan. 13, 1996, at 23. There is another side to the global warming debate, based on satellite temperature measurements that do not show such rapid increases. I have frankly never invested the time to try and figure out what accounts for this discrepancy.
35 E. Callenbach, Ecotopia: The Notebooks and Reports of William Weston 103 (Banyan Tree Books 1975) (“Ecotopia also took over numerous hydroelectric installations at dams in its great mountain ranges. However, these are regarded as temporary expedients too, since they tend to silt up after a few generations, and have unfortunate effects on salmon and other wildlife.”)
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