Center for Biological Diversity v. U.S. Department of the Interior

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Four environmental groups filed a lawsuit asserting that the U.S. Bureau of Reclamation failed to conduct an adequate environmental review pursuant to the National Environmental Policy Act (NEPA) prior to issuing a contract allowing new water extractions from the Green River and the Colorado River Basin. The groups alleged, among other things, that the Bureau of Reclamation’s environmental assessment used a modeling run “cherry picked to show minimal impact from the project” because the modeling run ignored the effects of climate change on water availability in the system. The groups asserted that an environmental impact statement should have been prepared, that the NEPA analysis had been unlawfully segmented, that the defendants failed to take a hard look at environmental effects (including by failing to take into account that climate change was “predicted with strong certainty to decrease stream flows”), and that they failed to look at a reasonable range of alternatives.

In a split opinion, the Tenth Circuit Court of Appeals concluded that the Bureau of Reclamation (Reclamation) had taken a hard look at the impacts of a proposed water contract with the State of Utah that involved changing the point of diversion for water that Utah draws from the Green River Basin. Among the arguments rejected by the majority was a contention that Reclamation did not address scientific data and studies projecting that future climate warming was likely to leave the Colorado River system drier than in the past, increasing potential harms from the contract. Other federal agencies, including the U.S. Fish and Wildlife Service (FWS), had referenced in their comments on the environmental assessment three studies showing accelerating declines in river volumes in the future. Although the Tenth Circuit said that Reclamation’s response to these climate concerns “lacks clarity,” the appellate court found that the agency “sufficiently evaluated the minimal environmental effects of the proposed action.” The court said that “[w]hile Reclamation’s response to FWS’s comment could have been more robust, the record confirms that Reclamation adequately incorporated in its analysis the effects of a warming climate and the likelihood of changes in hydrology.” In the same vein, the Tenth Circuit also rejected an argument that Reclamation’s decision not to prepare an environmental impact statement (EIS) violated the National Environmental Policy Act in light of the other agencies’ comments, including comments criticizing Reclamation’s reliance on past hydrological data, which demonstrated a level of controversy that warranted an EIS. The dissenting judge disagreed with the majority’s conclusion that Reclamation had satisfied its duty to take a hard look at the effect of climate warming on the availability of water. The dissent found that Reclamation’s response to the FWS’s comment citing the three studies failed to respond to the actual concerns raised and failed to explain why the three studies were not relevant to assessing the contract’s impacts. The dissent also found that Reclamation failed to explain how the past data on which it relied “can serve as a surrogate for future drought scenarios.”