a. (EARTH) does have a case to challenge the FWS and NMFS decision not to list the shad. The Endangered Species Act (ESA) was made to stop species that are on the road to extinction, and put them on the path of recovery. The big mouthed shad is one of those species, which relies on Maine rivers for its lifecycle. The FWS and NMFS have completed a status review and have decided, against contrary data, that the fish should not be listed. Much like the spotted owl case (NORTHERN SPOTTED OWL v. HODEL), the agency (FWS, NMFS) did not make the determination based on “the best available scientific and commercial data available” as described in § 4 of the Endangered Species Act. In this case the Fish and Wildlife service did not list a spotted owl
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I would request that FERC do a biological opinion and do a consultation, which will most likely lead to a jeopardy opinion, and an injunction. While mitigations such as the fish passage is possible, the effects that the dam will have on the continued shad population will be too significant by blocking fish passage. This is similar to a case between the Tennessee Valley Association v. Hiram Hill, where a dam was being built on the Tennessee River, and a small endangered fish called the snail darter was going to die off if the dam was built.TVA argued that they had already put a lot of money into the dam, it was already close to completion, and the ESA was passed after the dam was built. They also argued that killing this fish would not matter because it is not commercially significant. In both cases there is an endangered species that will be effected by a dam, and the justification come from the money put into, and generated by, the project. The argument that the dams benefits outweigh the effects it will have on the shad has no standing. In TVA v. Hill the court ruled that the worth of a species is immeasurable, and that there can’t be a comparison of benefits against it. Thus the protection of the shad is worth more than a $170 million dollar dam project, and this new dam can not be built on the premise of financial merits. With the precedent of previous cases, I think setting FERC on the path to inevitable injunction with the biological opinion process would be the best
I would request that FERC do a biological opinion and do a consultation, which will most likely lead to a jeopardy opinion, and an injunction. While mitigations such as the fish passage is possible, the effects that the dam will have on the continued shad population will be too significant by blocking fish passage. This is similar to a case between the Tennessee Valley Association v. Hiram Hill, where a dam was being built on the Tennessee River, and a small endangered fish called the snail darter was going to die off if the dam was built.TVA argued that they had already put a lot of money into the dam, it was already close to completion, and the ESA was passed after the dam was built. They also argued that killing this fish would not matter because it is not commercially significant. In both cases there is an endangered species that will be effected by a dam, and the justification come from the money put into, and generated by, the project. The argument that the dams benefits outweigh the effects it will have on the shad has no standing. In TVA v. Hill the court ruled that the worth of a species is immeasurable, and that there can’t be a comparison of benefits against it. Thus the protection of the shad is worth more than a $170 million dollar dam project, and this new dam can not be built on the premise of financial merits. With the precedent of previous cases, I think setting FERC on the path to inevitable injunction with the biological opinion process would be the best