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At Earthrise, we are passionate about using the law to protect and
restore the environment and the planet's natural resources, and about
training law students to become skilled environmental advocates.
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Earthrise Argues for Increased Environmental Scrutiny of Glen Canyon Dam’s Operations
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Lake Powell and Glen Canyon Dam. Courtesy of the U.S. Bureau of Reclamation
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The last twelve months have been truly devastating for the Colorado River and those who depend on it for drinking water, irrigation, and recreation, not to mention the species that live in or near the River and require abundant clean water to survive. Climate change is, of course, the main driver of this new reality; a combination of declining precipitation (including rain and snowpack) and elevated temperatures has led to a new type of “hot drought” that is proving to be more severe and longer lasting than earlier droughts. The current drought—now in its 23rd year, and believed to be the worst in a millennium—has wreaked havoc throughout the Colorado River Basin, causing the water in Lake Powell (impounded by Glen Canyon Dam) to fall to its lowest level in decades.
Unfortunately, there is no sign of relief; the Bureau of Reclamation projects that Lake Powell will fall below the “minimum power pool” elevation as early as 2023 without radical changes to how the Colorado River Basin’s various water storage projects are operated, meaning that neither hydropower generation nor downstream water delivery via Glen Canyon Dam will be feasible on a consistent basis. In fact, only by taking a set of unprecedented emergency drought response actions was the Bureau able to avoid a loss of hydropower capacity in the summer of 2022.
Against this alarming backdrop, Earthrise has been litigating a National Environmental Policy Act (NEPA) case against the U.S. Department of the Interior over the 2016 Long-Term Experimental Management Plan (LTEMP) and related Environmental Impact Statement (EIS) for Glen Canyon Dam. The LTEMP is required by the Grand Canyon Protection Act of 1992 to guide the Bureau in its statutory obligation to “protect, mitigate adverse impacts to and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established." In theory, the Bureau uses the LTEMP to balance the competing goals of downstream resource protection, Colorado River water delivery to Lower Basin states, and hydropower generation at Glen Canyon Dam. But in practice, the Bureau’s LTEMP ignores the climate reality (including its own worst-case climate projections and other public data that existed when the LTEMP was written in 2016) and improperly elevates hydropower and consumptive water use over natural resource conservation.
On behalf of our clients Save the Colorado, Living Rivers, and the Center for Biological Diversity, we have argued that the LTEMP EIS unlawfully fails to fully examine the ways in which climate change will affect the Dam’s operations in the coming years and decades. For example, all of the alternatives considered by the Department in its EIS assume that hydropower generating capacity at Glen Canyon Dam will remain at status quo levels over the LTEMP’s 20-year life span—an assumption that is now proven to be incorrect. Furthermore, in light of the worsening drought conditions and a slate of new and compelling climate studies relevant to Lake Powell and the rest of the Colorado River Basin, Earthrise has argued that the Bureau is required to prepare a supplemental EIS that accounts for the latest climate science.
On October 7, 2022, Earthrise attorney and clinical professor Jamie Saul presented oral argument to the U.S. District Court for the District of Arizona on the plaintiffs’ motion for summary judgment. A victory for our clients would result in further NEPA analysis, ideally including the consideration of a new slate of alternatives that reflect the impending loss of hydropower generation at Glen Canyon Dam and better protect downstream resources in this new era of climate change. A decision by the Court is expected by the end of the year.
The case is captioned as Save the Colorado v. U.S. Dept. of Interior, D. Ariz. No. 3:19-cv-08285-MTL. Earthrise attorneys Tom Buchele and Jamie Saul represent the plaintiff organizations.
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The continued “hot drought” gripping the Colorado River Basin has caused the water elevation in Lake Powell to fall precariously close to Glen Canyon Dam’s hydropower intake structures, fast approaching the “minimum power pool” elevation. Figure courtesy of the U.S. Bureau of Reclamation.
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| Earthrise sues the Park Service over Yosemite Logging, ignoring NEPA and the Public
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As many of you will recognize, the above photo is from Yosemite Valley in Yosemite National Park, and yes that is a logging truck full of very recently cut, very large trees. Incredibly, the National Park Service has been actively logging in Yosemite National Park and didn’t bother to tell the public why. Our summer interns were just starting in mid-May when a client sent us this picture. We made some inquiries but were completely stonewalled by the Park Service. We filed a Freedom of Information Act request the next day on behalf of the John Muir Project, asking for an expedited response. The Park Service denied the request for an expedited response, they argued no one would be interested in the logging, but, surprise, after they got our request an 11-page document authorizing the logging suddenly appeared on the Yosemite webpage.
Earthrise doesn’t like to be stiff-armed, so our summer students and Legal Fellow, Bridgett Buss started digging. The Park Service was logging, and selling the logged trees, on over 2000 acres of the park, including in one of the park’s sequoia groves. They made the decision with no public comment period or even notice to the public and are relying on environmental analysis from 2004. Ostensibly the logging is to “thin” the forested areas of the park and reduce the risk of large fires, but most recent science shows that “thinning” large trees, like those on the logging truck, is not an effective way to reduce the risk of catastrophic fires. The logging was also occurring in what we think is occupied habitat for the endangered Pacific fisher. We filed a lawsuit against the Park Service on behalf of the John Muir Project on June 13th and filed a motion for a preliminary Injunction to stop the ongoing logging on June 15th.
In late June we reached an interim agreement and the Park Service agreed to stop all the logging our client was most concerned about until the Court could decide our motion for a preliminary injunction. The agreement will allow fire prevention work to continue to occur around existing buildings, homes, and camping areas, which is exactly where our client thinks such work should be focused but halt the logging of most large trees. Obviously, this was a very short-term “victory” and we knew actually prevailing on our preliminary injunction motion would be very challenging. Shouting “fire” can be a very effective way to convince a judge not to interfere with what the agency is doing. Unfortunately, that is exactly what happened and in late September the district court in Fresno denied our motion, pointing to the need to address the risk of wildfire.
We immediately appealed to the Ninth Circuit. After initially trying to restart the logging, the Park Service backed down again and agreed to a short-term halt to the worst of the logging while we brief our motion for an injunction pending appeal. We finished that briefing on October 17th and, win or lose, will proceed to brief the merits and stop as much of the unnecessary, harmful and illegal logging in one of the nation’s most cherished national parks.
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| In this Issue:- Oral Argument over Dams and Climate Change
- Hellos and Goodbyes to Fellows and Clinic Classes
- Logging in Yosemite?
- Still Saving Condors
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| After two years of hard work and excellent environmental advocacy our 2020 legal fellow, Bridgett Buss, has joined Willamette Law Group. We are lucky to still be co-counseling with Bridgett on some public lands work, and look forward to more opportunities to work together in the future. Thank you Bridgett!
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Introducing our Newest Legal Fellow
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Earthrise is excited to announce the hiring of our newest legal fellow, Haley Nicholson. She joined us this past August after graduating from Lewis & Clark Law School with certificates in Environmental and Natural Resources Law and Public Interest Law. Before coming to Portland, Haley graduated from the University of Oregon’s Clark Honors College in 2019, with a Bachelor’s of Science in Environmental Science. During law school, Haley worked as a law clerk for the Environmental Division of the California Department of Justice, the United States Environmental Protection Agency’s Office of General Counsel, and for the Honorable Jolie A. Russo. Haley volunteered for the Northwest Environmental Defense Center and the National Lawyers Guild but spent most of her time on the Lewis & Clark Law School Environmental Moot Court team. Haley loves powerlifting, hiking, reading fiction, playing piano, and painting during her free time.
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| One of Earthrise's longest-running cases is our effort on behalf of the Center for Biological Diversity, the Sierra Club and Wild Arizona to protect endangered California condors and other wildlife from exposure to spent lead ammunition on the Kaibab National Forest in Arizona. We've been at this litigation for 10 years, even though there is a very simple solution for this problem--the Forest Service has the unquestioned authority to require hunters on the Kaibab to use non-lead (i.e., non-toxic) ammunition, as the federal government has done on other federal lands. Yet the Forest Service refuses to do so in the face of undisputed harm to condors and other scavenger species, as recently documented by a 2022 U.S. Geological Survey finding nationwide population-level effects on bald and golden eagles from ingesting spent lead ammunition.
The district court in Arizona has tried to dismiss our case three times - the first two times we successfully reinstated the case on appeal and we are back in front of the Ninth Circuit Court of Appeals again. Briefing will conclude this November and oral argument will be scheduled after that so stay tuned.
And, by the way, we are in good company on this issue. In his book Was It Worth It? A Wilderness Warrior's Long Trip Home published by Patagonia earlier this year, Doug Peacock (the inspiration Ed Abbey's character George Hayduke in The Monkey Wrench Gang) referenced the NRA and Safari Club International's opposition to protections for condors from lead poisoning and included a photo of an x-ray showing lead fragments ingested by a scavenger bird. Peacock is a hunter but is clearly offended by the notion that NRA and SCI members will somehow be "impaired" if they are not allowed to hunt with lead bullets. His book is a great read, and in the end he concludes that all of his fights on behalf of wilderness and wildlife were worth it. After 10 years and running, we think the same about this case.
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| Thank you for Supporting our 25th-Anniversary Event!
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Thank you to everyone that attended or donated to Earthrise's 25th-anniversary event. Our supporters and students enjoyed an afternoon full of lawn games, tacos, and toasting to 25 more years at Sellwood Park.
The work we do could not continue without your help. It was great to see so many of you and feel your support. We hope to see you at the next event. If you were not able to attend and would like to donate in honor of 25 years of environmental advocacy and education, give here.
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Welcome to our 2022-23 Clinic Class!
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Our newest clinic class is already hard at work on active matters ranging from public lands preservation in Oregon and California, to water quality work in Washington, to challenging EPA’s failures to regulate the CAFO industry, along with the cases detailed in the stories above and much more. With 28 students, this clinic is one of our largest classes ever. We are excited to be fully in person this semester but have used some of the virtual conferencing abilities developed over the pandemic to bring in guest speakers like James L. Powell to talk about issues surrounding our Glen Canyon case, and co-counsel and clients, like Massachusetts Rivers Alliance and Conservation Law Foundation who joined a class about our water quality work in New England. We are so excited that so many students are interested in Earthrise, and are happy to have their help.
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