Author: Damien M. Schiff
On Monday, oral argument was heard in National Wildlife Federation v. National Marine Fisheries Service, a decade-long lawsuit brought by environmentalists challenging the federal hydropower projects in the Pacific Northwest. The case boils down to whether the feds can come up with a plan to operate the dams in a way that does not impermissibly harm various populations of salmon, protected under the Endangered Species Act. (Recall that under Section 7 of the ESA, federal agencies must avoid taking any action that jeopardizes the continued existence of a listed species). The judge hearing the case, James Redden, has regularly ruled in favor of the environmentalists, and regardless of the administration. The judge has thrown out remedies from the Clinton and Bush administrations. Now, the Obama administration is advocating for judicial acceptance of the latest compromise plan (which does not, at least as of yet, advocate for dam breaching). Should the judge toss out that compromise, I don't think it would be too much of a stretch to anticipate some sort of legislative action.