SOS Blog: Wild Salmon and Climate Change: The Law*
From the Desk of Pat Ford - August 8, 2016
U.S. District Court Judge Michael Simon’s May 2016 verdict in the long-running Columbia-Snake salmon and dams case sets clear legal sideboards for helping salmon migrate climatic changes. (You can read the court’s verdict at [url here]. The salmon and climate change section is pages 86-102.)
First, it makes plain what the law requires, and thus sets basic standards for any strategy and recommendations on the subject. The standards will apply to the government’s sixth attempt in 18 years to craft a lawful plan to restore Columbia-Snake wild salmon and steelhead.
Second, it crisply summarizes the basics of climate-salmon science as we know them today. Scientists at NOAA, the Universities of Washington and Oregon, Columbia River Inter-Tribal Fish Commission, and others have published much research on salmon and climate change in the past 15 years. The court finds that “the best available information indicates that climate change will have a significant negative effect” on endangered or threatened salmon and steelhead species in the Columbia and Snake Rivers. The court finds that NOAA paid illegally scant attention to this information, much of it developed by NOAA’s own scientists, in its 2014 plan to restore Columbia-Snake salmon.
Third, the court established a public process in which that science must be assessed, and in which Northwest people’s views on salmon and climate change must be heard.
The court’s verdict has a wider span, but I focus just on its treatment of salmon and climate change under the Endangered Species Act. Here is what the court says the law requires:
- reliance on the best available science when assessing climate change impacts on salmon. Since climate science is a fast-expanding field, it is essential to describe, assess and apply recent scientific findings, as well as more established findings.
- assessment of climatic changes as additive to harms already inflicted by dams, pollution and other human activities. So, actions that agencies are already taking to reduce harm from dams, pollution, and so on cannot generally be double-counted to also lessen the harms of climate change. Instead, pre-existing actions should be integrated with new actions “sufficient in number and magnitude to ameliorate for climate change.”
- assessment if and how climatic changes will affect actions already being taken to restore endangered salmon. The federal salmon plan the court invalidated relies mainly on measures to improve spawning, rearing and estuary habitats to mitigate for salmon mortality in habitats degraded by federal dams. But the best available science indicates many of these measures will be slowed or impeded by the additive effects of climate change.
- consideration of catastrophic impacts from climate change. The massive Columbia-Snake salmon kills in summer 2015 confirm the finding the court makes from earlier evidence: catastrophic effects on salmon due to climatic changes have occurred, will occur again, and must be considered and then addressed with actions.
- analysis of climatic effects over at least 20 to 30 years, even if the plan using the analysis is for a shorter period. The new federal salmon plan the court ordered will cover 2018-2028, but its analysis and actions must consider climatic effects over a period double or triple that.
- actions proposed to restore endangered Columbia and Snake salmon must rationally follow from the analysis. If climate change impacts on salmon are large, measures to prevent or moderate them must be large enough to ameliorate the impacts.
* NOTE: This blog post is an excerpt from a larger report and "Action Toolkit" authored by Pat Ford on behalf of Save Our wild Salmon due out later this year.