August 3, 2011

Will dam breaching happen in the Pacific Northwest?

By Will dam breaching happen in the Pacific Northwest?

Author:  Damien M. Schiff

We're one step closer to an affirmative answer to my title question in the wake of this week's ruling from Judge James Redden in National Wildlife Federation v. National Marine Fisheries Service.  This is a lawsuit with a long, long, history (we've been covering it here for as long as the blog has been in existence) but it now boils down to whether the feds can put together a plan that satisfies what Judge Redden understands to be legally required for sustaining a variety of salmon populations protected under the Endangered Species Act.  The feds have tried to do that by allowing more water to pass through the dams, but the court's recent ruling seems to indicate that the judge won't be happy unless more drastic steps are taken.

US Representative Doc Hastings, chairman of the House's Natural Resources Committee, has a statement out contending that the judge would have no authority to order any dams to be breached and that, even if he did, Congress would act to countermand it.  I'm fairly confident that Congress would not allow the dams to be breached, but the judge probably would have the authority otherwise to breach the dams.  After all, in TVA v. Hill the Supreme Court held that federal courts have the power and duty to protect endangered species, and that such power and duty required that a multi-million-dollar dam project be stopped.  If the courts can stop it, they likely can pull it down, too.

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