tenSion between hyDroelectric energy’S
benefitS aS a renewable anD itS Detrimental
effectS on enDangereD SpecieS
by Janet M. Hager*
Renewable ener gy has come to the forefront po litically as
one of the means of achieving energy indep endence, address-
ing the problem of climate change, and restoring the economy.1
Although renewable energy sources will be a crucial too l in
the ﬁg ht against climate change, they often create other envi-
ronment al problems.2 A recent
Ninth Circuit Court of A ppeals
decision, National Wildlif e Fed-
eration v. Na tional Marine Fish-
eries Serv ice, exemplifies ho w
one form of renewable energy,
hydroe lectric po wer, has be en
challenged by the environmental
commu nity for it s detrimen tal
effect on end angered fish spe-
cies.3 The case demonstrates that,
as Congress moves to incentivize
hydroelec tric p ower, there m ay
be a temptation for Co ngress to
explo it a ju dicial l oophole t o
make the E ndangered Speci es
Act (“ESA”) inapplicable to dam
Hydroelectri c power is cre -
ated by c onverting the kinetic
energy of ﬂowing water into elec-
tricity, typically through the release of river water held in a res-
ervoir behind a dam through a turbine.4 Although hydroelectric
power is the most prevalent form of renewable electricity pro-
duction in the United States,5 currently only about three percent
of America’s dams have the capability to generate electricity.6
In 2007, hydroelectric pow er constituted 5 .8% of the net gen-
eration of electric power,7 while all other forms of r enewable
energy combined were only 2.5% of the net generation of elec-
Hydroelectric power has garnered increasing political sup-
port as the nation’s interest in clean energy has gained momen-
tum. U.S. Department of Ene rgy (“DOE”) recently announced
that it would dedicate up to thirty-two million dollars in funding
received from the American Reinvestment and Recovery Act of
2009 to add new turbines and cont rol technologies t o existing
non-federal hydroelectric power projects.9 Additionally, the Act
extends eligibility for the renewable energy production tax credit
by three years.10 Hydroelectric energy is also included as one of
the qualiﬁed renewable energy sources that would count toward
an electric utility’s federal renewable electricity credit in federal
global warming legislation currently under consideration.11
Although hydroelectric power has g ained suppo rt politi-
cally, hydroelectric projects raise signiﬁcant environmental con-
cerns, such as frustration of ﬁsh migration and reduced oxygen
levels in downs tream water.1 2
As a recent article in t he Los
Angel es Times dramat ically
exp laine d: “Th e e mergi ng
boom in hydroelec tric power
pits t wo competin g ecologi-
cal perils agains t eac h oth er:
widespread ﬁsh extinctions and
a warming planet.”13 Fish mor-
tality re sulting from pas sage
through turbines at hydroelec-
tric facilities can be as muc h
as 30%, alth ough the use of
the best existing turbines can
reduce that to 5-10%.14 Some
of the affe cted fish, such as
species o f s almon and steel-
head, are listed on the federal
list of endangered or threatened
species under the ESA.15
The ESA has provided a
mechanism for challenges to hydroelec tric power projects in
the cou rts when an endangered or threatened sp ecies is put at
risk by dam development. The seminal opinion by the Supreme
Court of the United States in Tennessee Valley Authority v. Hill
demonstrates that the ESA has the power to defeat a major con-
struction project if necessary to save an endangered species.16 In
Tennessee Valley Authority, the Court enjoined the operation of
the Tellico Dam, a project to which C ongress had appropriated
over one hundred million dollars, because of the potential risk to
the survival of the endangered snail darter.17 The authority for
such a powerful result comes from the unequivocal language of
section 7 of the ESA , which requires that each f ederal agency
“insure that any action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued existence of
any endangered species or threatened species . . . .”18
*Janet M. Hager is a J .D. C andidate, May 2010, at American University
Washington College of Law.
The ESA has provided a
mechanism for challenges
to hydroelectric power
projects in the courts
when an endangered
or threatened species
is put at risk by dam
51 SUSTAINABLE DEVELOPMENT LAW & POLICY
Similar to the decision of the Supreme Court in Tennessee
Valley Authority, the recent opinion of the United States Court
of Appeals of the Ninth Circuit in National Wildlife Federation
v. N ational Marine Fisheries S ervice shows the power of the
ESA to affect the development and operation of hydroelectric
facilities. The National Wildlife Federation (“NWF”) claimed
that the National Marine Fisheries Servi ce failed to adequately
prepare a bio logical opinion (“BiOp”) for the operations of the
Federal Columbia River Power System dams.19 At issue in NWF
were various species of salmon and steelhead in the Columbia
River that must migrate downstream through a series of dams.20
The court determined that the 2004 BiOp issued by the National
Marine Fisheries Service “contained structural ﬂaws that ren-
dered it incompatible with the ESA.”21
One issue in NWF that will continue to be relevant in other
actions against dam projects is whether the Congressional man-
date of ﬂood control, irrigation, and pow er production created
a nondiscretion ary duty.22 Nondiscretion ary duties of ag encies
need not meet the requirements of section 7 of the ESA.23 In
NWF the Ninth Circuit determined that, while the broad Con-
gressional goals were mandatory, Congress did not mandate that
the goals be accomplished in any particular way; thus the agency
actions in implementing the goals were discretio nary and sub-
ject to requirements of the ESA.24 Thus, Congress could exempt
the ac tions of an agency engaged in dam operations from the
ESA by speciﬁcally dictating by statute the manner in wh ich
the agency is to carry out the construction and operation of the
As a result of the recent growing political interest in hydro-
electric power, there will likely be a substantial increase in the
nation’s hydroelect ric energy capacity .26 Althou gh Congre ss
could facilitate its goal of in creasing hyd roelectric po wer by
exempting the operatio n of hydroele ctric facilities from the
ESA, the better sol ution wou ld be to mitigate the effec ts of
hydroelectric facilities on ﬁsh populations wi th advanced tech-
nology.27 The DOE’s decis ion to incor porate the reduction of
environmental impacts into its plan for the modernization of the
nation’s hydropower infrastructure lends hope that the DOE will
make environmental mitigation a priority duri ng the expansion
of hydroelectric projects.28
1 Organizing for America, New Energy for America, http://www.baracko-
bama.com/issues/newenergy/index.php (last visited Oct. 20, 2009).
2 See U.S. Department of Energy, Advantages and Disadvantages of Hydro-
power, http://www1.eere.energy.gov/windandhydro/hydro_ad.html (last visited
Oct. 20, 2009).
3 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917 (9th Cir.
4 U.S. Department of Energy, How Hydropower Works, http://www1.eere.
energy.gov/windandhydro/hydro_how.html (last visited Oct. 20, 2009); U.S.
Department of Energy, Types of Hydropower Plants, http://www1.eere.energy.
gov/windandhydro/hydro_plant_types.html (last visited Oct. 20, 2009).
5 energy information aDminiStration, u.S. Department of energy, electric
power annual 2007 2 (2007), available at http://www.eia.doe.gov/cneaf/elec-
9 U.S. Department of Energy, Recovery Act Announcement: Obama Admin-
istration Announces up to $32 Million Initiative to Expand Hydropower (June
30, 2009), http://apps1.eere.energy.gov/news/progress_alerts.cfm/pa_id=195.
10 Internal Revenue Service, Energy Provisions of the American Recov-
ery and Reinvestment Act of 2009, http://www.irs.gov/newsroom/
article/0,,id=206871,00.html (last visited Oct. 20, 2009); World Resources
Institute, Renewable Energy Tax Credits, iSSue 4, the bottom line on . . . 1,
available at http://pdf.wri.org/bottom_line_renewable_energy_tax_credits.pdf.
11 pew center on global climate change, pew center Summary of h.r.
2454: american clean energy anD Security act of 2009 (waXman-marKey)
4 (2009), available at http://www.pewclimate.org/docUploads/Waxman-Mar-
12 U.S. Department of Energy, supra note 2.
13 Kim Murphy, A Hydroelectric Future Faces a Fish Predicament, loS
angeleS timeS, July 27, 2009, http://articles.latimes.com/2009/jul/27/nation/na-
14 Idaho National Laboratories, Hydropower, http://hydropower.inel.gov/tur-
bines (last visited Oct. 20, 2009).
15 U.S. Fish & Wildlife Service, Species Report, http://ecos.fws.gov/tess_pub-
lic/SpeciesReport.do?groups=E&listingType=L&mapstatus=1 (last visited Oct.
16 Tenn. Valley Auth. v. Hill, 437 U.S. 153, 173 (1978).
17 Id. at 172.
18 Endangered Species Act of 1973 § 7(a)(2), 16 U.S.C. § 1536(a)(2) (2008).
19 Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 524 F.3d 917, 922 (9th
20 Id. at 923.
21 Id. at 927.
22 Id. at 928.
23 Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 673
24 Nat’l Wildlife Fed’n, 524 F.3d at 928.
25 Clay R. Smith, Salmon, Dams and the Endangered Species Act Jeopardy
Standard, aDvocate, May 2009, at 23, 24.
26 See Murphy, supra note 13 (noting that the National Hydropower Associa-
tion has set out to double the nation’s capacity for hydroelectric energy by
27 See Idaho National Laboratories, supra note 14 (explaining the beneﬁts of
advanced turbine technology).
28 U.S. Department of Energy, supra note 9.