National Wildlife Federation v. National Marine Fisheries Service

The Ninth Circuit Court of Appeals upheld an injunction requiring federal defendants to take certain actions to address Endangered Species Act (ESA) violations identified in a May 2016 Oregon federal court order in connection with operations of the Federal Columbia River Power System (FCRPS). The district court found that the National Marine Fisheries Service (NMFS) failed to adequately consider climate change when it issued a biological opinion in 2014 concluding that the FCRPS management would not jeopardize endangered and threatened steelhead and salmon. In April 2017, the district court granted certain injunctive relief—including “increased spill” at dams to promote salmonid survival—to address the ESA violations. The Ninth Circuit noted that the ESA foreclosed consideration of all but the irreparable harm factor in the four-factor injunctive relief test and found that the district court had not erred in finding irreparable harm sufficient to support injunctive relief. The Ninth Circuit said that the district court was not required to find an “extinction-level threat” in the short term, but noted that the district court had found that continued low abundance of listed species made them vulnerable to extinction and that one of the shortcomings identified in the NMFS’s analysis was failure to analyze how climate change increased chances of “shock events” that would be catastrophic for listed species’ survival. The Ninth Circuit also dismissed an appeal of the district court’s order requiring disclosure of planned capital expenditures at FRCPS dams to allow plaintiffs the opportunity to file motions to enjoin projects that could bias the National Environmental Policy Action (NEPA) review on remand. (The district court had also found that the NEPA review did not give adequate attention to climate change). The Ninth Circuit said the district court’s disclosure order was not appealable.