The Columbia River Treaty Revisited: Transboundary River Governance in the Face of Uncertainty

When Courts Run Regulated Rivers: The Effects of Scientific Uncertainty

148 When Courts Run Regulated Rivers: The Effects of Scientific Uncertainty Carmen Thomas Morse Introduction “Dams and Salmon Don’t Mix,”or so the story goes (Ellensburg Daily Record 1968). In the U.S., hydropower and anadromous salmon—fish that live in the ocean and migrate to freshwater rivers to spawn—have been in conflict for well over a century. In the Pacific Northwest, this issue has been continuously litigated since the early 1990s (see e.g., Idaho Department of Fish and Game v. National Marine Fisheries Service 1994; American Rivers v. National Marine Fisheries Service 1997; National Wildlife Federation v. National Marine Fisheries Service 2003, 2005, 9th Cir. 2005, 2008).This litigation is especially contentious because the region is home to the world’s largest hydroelectric system (Northwest Power Planning Council 1986),comprising more than one hundred fifty dams.This system—which includes the Federal Columbia River Power System (FCRPS) – currently generates approximately 55 percent of the region’s electricity (Northwest Power Planning Council 2005). The FCRPS consists of fourteen dams and associated facilities and is located on the Columbia River, which flows from the west side of the Canadian and Rocky Mountains to the Pacific Ocean and drains areas of seven states and one Canadian Province (U.S. Bureau of Reclamation n.d.).The U.S. Army Corps of Engineers (the Corps) operates all but two of the FCRPS dams; the U.S. Bureau of Reclamation operates Grand Coulee and Hungry Horse dams (NationalWildlife Federation v. National Marine Fisheries Service 9th Cir. 2005).Although many studies of the interactions between dams and anadromous salmonids have been conducted, numerous uncertainties remain. These uncertainties gave rise to the dispute between the National Wildlife Federation (NWF) and the National Oceanic and Atmospheric Administration (NOAA) over the impacts of the FCRPS (National Wildlife Federation v. National Marine Fisheries Service 2003, 2005). In the FCRPS litigation,multiple parties (hereafter referred to as NWF) contested NOAA’s approach to determining whether federal operation of dams jeopardizes listed runs of anadromous salmonids within the Columbia Basin. On one level, the litigation is a dispute over the trade-offs of maintaining or restoring native fish populations and the resultant reductions in the Basin’s capacity to generate electricity through hydropower production. At a deeper level, this litigation is a dispute over the proper use of science and the proper approach to dealing with When Courts Run Regulated Rivers: Effects of Scientific Uncertainty 149 uncertainties.The deeper controversy centers on the difficulties inherent in natural resource management,in which choices must be made,often without clear answers or distinction between science-based and policy-based decisions. This chapter uses the federal district court’s grant of NWF’s 2004 and 2005 requests for injunctive relief from FCRPS’ proposed operations to examine the science, policy,and legal issues involved in managing the FCRPS and listed salmonids within the Columbia River Basin.Because the court’s decision in issuing the injunction was clearly informed by prior agency actions and litigation, portions of that history are incorporated into the discussion to provide the necessary foundation. The chapter begins with a brief description of the legal and scientific framework within which NWF requested injunctive relief. While the Endangered Species Act provided the legal basis for the FCRPS litigation, the Northwest Power Act influenced its timing, and the available methods for facilitating downstream migration of juvenile anadromous salmonids (smolts) defined the universe of alternatives. This is followed by an examination of NOAA’s prescription of downstream fish passage methods through its biological opinions, identification of scientific uncertainties, and an explanation of how these uncertainties gave rise to the FCRPS injunction litigation.The chapter then uses the litigation to identify both parties’ use of “science-policy” to cloak uncertainties and analyzes the impact of this use before concluding with recommendations for avoiding the “sciencepolicy ” conflation and advancing the discussion on the three-way intersection of science, policy, and law. LEGAL FRAMEWORK The continuing operation of the FCRPS is subject to a number of statutes, including the Endangered Species Act (ESA) and the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act). Both the ESA and the Northwest Power Act contemplate protection and restoration of the Columbia Basin’s salmonid runs (see e.g., 16 U.S.C. §§1532, 1536). The Endangered Species Act The ESA requires the Fisheries Division of the National Oceanic and Atmospheric Administration (NOAA, previously named the National Marine Fisheries Service) to evaluate the status of oceanic and...