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In an unpublished decision, the Ninth Circuit Court of Appeals affirmed the grant of summary judgment to the U.S. Department of the Interior and other defendants in conservation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.