Northwest Environmental Defense Center v. Federal Emergency Management Agency

Four organizations filed a lawsuit in the federal district court for the District of Oregon alleging that the Federal Emergency Management Agency’s (FEMA’s) continuing operation of the National Flood Insurance Program (NFIP) in Oregon violated the Endangered Species Act by jeopardizing the existence of 17 protected species and destroying or adversely modifying the habitat of 16 of the species. The organizations alleged that development incentivized by the NFIP “puts people in danger, harms communities, and destroys ecosystems.” The complaint cited FEMA’s consultation with the National Marine Fisheries Service (NMFS) in after an earlier lawsuit; the resulting biological opinion (BiOp) determined that implementation of the NFIP—its regulatory floodplain management criteria, floodplain mapping, and Community Rating System program—was jeopardizing species and destroying or adversely modifying critical habitat. The plaintiffs alleged that the BiOp—which found, among other things, that the NFIP’s effects would exacerbate climate change-related habitat changes for at least one of the species—set out six elements of a reasonable and prudent alternative to bring the NFIP into compliance with the Endangered Species Act. The plaintiffs sought declarations that FEMA had violated its duties under the Endangered Species Act and that its failure to implement NMFS’s reasonable and prudent alternative constituted unlawful withholding or delaying of a nondiscretionary duty.