RENO, Nev. – The unusual circumstances that led to the landmark US Supreme Court ruling on the Endangered Species Act in 1978 have barely surfaced since.
But in Nevada, the stage is being set for another potentially significant test of the nation’s premier wildlife protection law in a legal dispute over a geothermal power plant with similarities to the precedent-setting battle for the snailneck and a dam in Tennessee almost half a century ago.
Even smaller than this tiny perch species, the Nevada endangered creature is a quarter-sized toad found only in high desert wetlands fed by underground springs on federal land.
Citing the potential threat posed by the hydroelectric power station, the Fish and Wildlife Service temporarily declared the Dixie Valley toad endangered in April – only the second time it has taken such action in 20 years.
And while the geothermal plant generates electricity by tapping turbines using steam from hot water underground instead of hydroelectric power from rivers, both projects were born with the promise of producing some of the cleanest, renewable energy of their time.
Decades ago, Chief Justice of the Supreme Court Warren Burger seemed to foresee the significance of the 1978 ruling and the controversies that followed when he passed the 6-3 majority opinion just five years after President Richard Nixon enacted the Endangered Species Act wrote about the snail-necked bird.
“It may seem odd to some,” Burger said, “that the survival of a relatively small number of three-inch fish among all the untold millions of species that exist would require the permanent maintenance of a virtually completed dam, on which Congress has spent more than $100 million.”
“However, we conclude that the express provisions of the Endangered Species Act require precisely this finding,” he wrote in the case in which the fish was pitted against the Tennessee Valley Authority.
More than four decades later, a similar scenario is unfolding 100 miles (160 kilometers) east of Reno, where environmentalists and tribal leaders are attempting to block the geothermal plant producing electricity.
The Bureau of Land Management rushed to approve the Nevada project in the closing days of former President Donald Trump’s administration. But President Joe Biden’s administration continues to defend replacing fossil fuels with renewable energy as part of its own agenda.
Environmental groups insist they share the president’s goals to tackle climate change. But they say the bureau has ignored repeated warnings from federal and state wildlife biologists, the US Navy and even its own experts about potential damage the Dixie Valley Toad.
“Expert agency FWS has determined that Ormat’s project is likely to result in extinction of the species — the very catastrophe intended to prevent the endangered species,” attorneys for the Center for Biological Diversity wrote in recent filings in federal court in Reno.
The case has already made a trip to the Ninth Circuit Court of Appeals and is likely to return in the coming months.
On August 1, the Court of Appeal refused to reinstate an earlier injunction temporarily halting construction, concluding that further delay would make it “virtually certain” that Ormat would get an August 31 contract deadline. December can not meet.
Ormat, which had already invested $68 million, argued that failure to meet the deadline could cost another $30 million over 20 years and jeopardize the project overall. However, later that day, Ormat agreed to suspend all work pending consultation between the Bureau of Land Management and the Fish and Wildlife Service.
Like the snailneck bird, the conflict differs from most endangered species struggles. They typically target broad state management plans for things like grizzly bear hunting, energy exploration near sagegrouse habitat, logging of northern spotted owls, and dam work on Pacific salmon rivers. Disputes over specific projects, such as the TVA dam or the Ormat geothermal plant, are less common.
Now that the full force of the Endangered Species Act is in play, Ormat’s opponents are focusing on the section of the law that the Supreme Court cited when it prohibited construction of the Tellico Dam in 1978.
“The case is analogous to (this case) where late in the construction of a $100 million dam project it was discovered that the completion and operation of the dam would eradicate a rare species of minnow,” environmental advocates wrote Sept. 16.
They said Congress specifically mandated that federal agencies seek approval from the Fish and Wildlife Service before taking any action that might endanger a species in order to “prevent a situation like that depicted in TVA” and “avoid an outcome in which the only choice remains an authority”. violating the Species Protection Act or scrapping a practically completed project.”
Last week, a judge granted a request by the Bureau of Land Management and Ormat to extend the deadline for their responses to October 28.
At the heart of the dispute in Nevada is uncertainty about the impact of groundwater pumping on surface water levels and temperatures.
Ormat insists that water it would pump and return to the ground came from a different aquifer than that feeding the wetlands. But environmentalists say the bureau has ignored every warning flag raised en route to the project’s approval.
“BLM has ignored repeated warnings and objections from scientific experts and almost every other federal and state agency involved in the development of the project, all of whom have warned that the project would likely dry up the Dixie Valley Toad hot springs, or at least degrade them from depends on its survival and warned that the project’s monitoring and mitigation plan would be ineffective.”
They cite internal documents that show:
– The Navy, whose Fallon Naval Air Station borders the site, called the plan “inadequate and incomplete.”
– UFWS said it was “a plan that describes the development of a plan.”
– BLM officials acknowledged the estimates were “rough estimates”.
In May, the BLM said it had begun an informal consultation and produced a draft biological assessment that concluded the project was “likely to adversely affect the toad.” it lacks the necessary analysis.”
The toad is in the spotlight, but similar disputes are brewing other green energy projects in Nevada.
The Center for Biological Diversity applied to the FWS in August to list a rare butterfly where Ormat plans another geothermal project near the Oregon line.
Last October, the agency formally proposed to: a Desert wildflower as endangered where Ioneer USA wants to dig a lithium mine halfway between Reno and Las Vegas to extract the mineral important for electric car batteries.
And a US judge has scheduled a Jan. 5 hearing in Reno for another lawsuit brought by conservationists, tribes and a rancher challenging a major Nevada lithium mine near the Oregon Line.
This case primarily focused on threats to groundwater and cultural resources near a site where tribes say their ancestors were massacred by US troops in 1865. But last month, the Western Watersheds Project filed an endangered species petition Collection of a tiny snail who lives nearby.
In the original 1978 snail cancer case, the Supreme Court found “an irreconcilable conflict” between operation of the dam and compliance with the law.
After ruling, Congress exempted the dam entirely from the Endangered Species Act. But the court’s precedent remains, and it’s front and center in Nevada now.
“It is clear from the legislative history of the statute,” the 1978 ruling said, “that Congress intended to halt and reverse the trend toward extinction—at all costs.”
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https://www.local10.com/news/politics/2022/10/19/rare-toad-fight-similar-to-landmark-endangered-species-case/ Rare toad fight similar to the case of a seminal endangered species