Save the Colorado v. U.S. Department of the Interior

In an unpublished decision, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment to the U.S. Department of the Interior and other defendants in conservation groups’ challenge to the NEPA review of the Long-Term and Experimental Management Plan (LTEMP), “a twenty-year adaptive framework to manage the monthly, daily, and hourly water releases from Glen Canyon Dam” on the Colorado River in Arizona. First, the Ninth Circuit agreed with the federal district court for the District of Arizona that the purpose and need statement in the final environmental impact statement (FEIS) was reasonable, rejecting an argument that the statement was too narrow because it did not include “the need to adaptively manage Glen Canyon Dam under all projected climate change conditions.” Second, the Ninth Circuit found that the FEIS examined a reasonable range of alternatives that allowed evaluation of “multiple, reasonable plans for the timing of dam releases.” The Ninth Circuit said NEPA did not require consideration of alternatives that would reduce or eliminate hydropower generation or “run afoul of the LTEMP’s limited purpose of creating monthly, daily, and hourly water release schedules.” Third, the Ninth Circuit found that the FEIS took a hard look at the LTEMP’s environmental consequences in light of climate change by “reasonably focus[ing] its climate-change analysis on comparing the performance and effect of each of the seven alternatives under various climate change conditions, rather than providing a full-fledged assessment of water availability in the Colorado River Basin.” The Ninth Circuit said the Department of the Interior’s reliance on historical data in the climate analysis did not render the analysis “stale.” The court also found that the Interior Department “did not arbitrarily omit relevant worst-case climate change conditions” from its climate change assessment because even without the worse-case conditions the FEIS climate change model “served its purpose as a tool to compare the relative robustness of the alternatives under changing climate conditions.” Fourth, although the Ninth Circuit found that the Interior Department violated NEPA by failing to explain its decision not to prepare a supplemental environmental impact statement to consider new studies that the conservation organizations said undermined the FEIS’s climate change analysis, the Ninth Circuit concluded the error was harmless because there was no evidence the studies contained information “not already considered” or that would “materially affect” the Interior Department’s decision.

Three conservation groups filed a lawsuit in federal court in Arizona asserting that the U.S. Department of the Interior’s December 2016 plan for managing the Glen Canyon Dam violated NEPA due to the Department’s “illegal and willful omission of Colorado River climate change impact projections from the required environmental impacts analysis.” The plaintiffs said the Department failed to analyze the environmental consequences of the proposed action on the affected environment, including the cumulative and indirect impacts caused by climate change; improperly drafted the project’s purpose and need statement to exclude climate change adaption; failed to consider a reasonable range of alternatives, including numerous reasonable alternatives that would adapt the Dam’s operations to climate change impacts; and failed to explain the relationship between relevant land use policies, controls, and guidance documents in regard to the examined alternatives and rejected alternatives and climate change impacts. The plaintiffs also contended that even if the 2016 environmental impact statement was adequate at that time, a supplemental EIS was required because of recently published scientific research on climate change impacts on the Colorado River.