I. Background

In 1999, a group of non-governmental organizations, led by the International Center for Technology Assessment (ICTA), petitioned the Environmental Protection Agency (EPA) to regulate greenhouse gases from new motor vehicles.[1]Section 202 of the Clean Air Act provides that EPA "shall" regulate air pollutants from new motor vehicles when those pollutants "may be reasonably anticipated to endanger public health or welfare."[2]Relying on scientific evidence of the likelihood of and probable harms from climate change, ICTA and the other petitioners argued that the EPA was required to regulate because greenhouse gases may reasonably be anticipated to endanger public health and welfare.[3]

Four years later, EPA finally came back with an answer.[4]Its answer was, in short, "no." First, the agency concluded that it did not have the authority to regulate greenhouse gases under the Clean Air Act.[5]EPA reasoned that Congress had enacted a number of laws relating to climate change, but none of these laws had explicitly required regulation of greenhouse gases.[6]Congress had, moreover, declined to pass bills that would have required regulation of greenhouse gases, thus showing, in EPA's view, a lack of desire to allow such regulation.[7]And, EPA said, greenhouse gas regulation does not fit with other statutory programs, such as the fuel economy program of the Energy Policy and Conservation Act.[8]Therefore, EPA concluded, greenhouse gases are not "air pollutants" under the Clean Air Act because evidence from outside the statutory text indicated a Congressional desire to refrain from regulating.[9]

Second, EPA stated that even if it did have authority to regulate greenhouse gases, it would not exercise this authority.[10]EPA explained, in essence,...

I. Introduction

The Columbia Basin salmon saga, the subject of a lengthy analysis in this journal two years ago,[1]has, as predicted in that article, come under "active and skeptical judicial review."[2]In this update, we explain several recent decisions of significance which, while they certainly do not guarantee that the agencies entrusted with Columbia Basin salmon recovery will finally begin to take meaningful steps to turn around the salmon's long-term decline,[3]will make more difficult the continuation of the practice of the art of deceiving the public into thinking something significant is happening when in fact the status quo predominates in Columbia Basin dam operations.[4]

These decisions, three from the Ninth Circuit and two from district courts, have 1) upheld a lower court's rejection of the National Oceanic and Atmospheric Administration's (NOAA) attempt to comply with the Endangered Species Act (ESA) in its 2004 biological opinion (BiOp);[5]2) reversed the Bonneville Power Administration's (BPA) effort to dismantle the Fish Passage Center, an entity established by the Northwest Power and Conservation Council to collect data and study salmon migration in the Columbia;[6]3) rejected BPA's underfunding of salmon restoration in its latest rate case;[7]and 4) determined that NOAA's downlisting of Upper Columbia steelhead due to abundant hatchery fish was inconsistent with the ESA's preference for wild salmon, thus apparently disagreeing with the District Court of Oregon on this issue.[8]This analysis examines each of these cases and explains their significance.

II. NWF v. NMFS: Rejecting the Deception of the 2004 BiOp

The long-running litigation over Columbia Basin hydrosystem BiOps, ushered in by the ESA listings of Columbia Basin salmon in the early 1990s, {Continue reading}

I. Introduction

Tales of migratory waterbirds as depicted in the 2001 documentary film Winged Migration[1]transports the viewer into the little-known drama of the lives of migratory waterbirds as global migrants. Various species of waterbirds, including the white stork, the Eurasian crane, the red-crowned crane, the bar-headed goose, and the snowgoose, are accompanied on their migratory route by humans flying along besides them. The documentary depicts scenes of these strangely beautiful creatures both in flight and at their breeding and resting sites, hauntingly similar to us humans in so many ways-their devotion to their young and their anguish and desolation at their loss, at play and at war with each other, courting and family relationships, the intricate social structure of their lives as migrants. The film reveals the awe-inspiring migrations that millions of waterbirds undertake twice a year, over distances of thousands of miles from their breeding sites in northern lands to their wintering sites in the warmer southern lands, and then back again.

The waterbirds' migratory path takes them over breathtaking, exquisite natural scenery in landscapes as diverse as the Arctic and the Amazon, as well as densely developed urban centers and heavily polluted industrialized areas. They are ignorant of the fact that the territories over which they fly and in which they rest throughout their long journeys are divided into separate political entities and their chances of safe passage have much to do with the nature of that particular political entity below. In addition to the long, exhausting migrations that can extend for thousands of miles, leaving the birds vulnerable to frigid arctic temperatures, storms, blizzards, and avalanches-all as unforgettably depicted in the documentary-the birds are also at the mercy of human created risks. They have to contend with life threatening... {Continue reading}