Endangered Species Law & Policy

The United States District Court for the Western District of Washington issued a decision (pdf) denying a request by the National Wildlife Federation (NWF) to enjoin the Federal Emergency Management Agency (FEMA) from providing flood insurance, either directly or through third-party entities, for any new development in certain jurisdictions in the Puget Sound area until the case is resolved on the merits.  We blogged about the case previously, here.  NWF filed the case against FEMA for failure to fully implement the reasonable and prudent alternative (RPA) that accompanied the National Marine Fisheries Service's (NMFS) biological opinion regarding the impacts of FEMA's National Flood Insurance Program (NFIP) on listed species in the Puget Sound.

Shortly after filing the lawsuit, NWF filed a motion for preliminary relief.  The legal standard for obtaining such relief is set forth in a recent U.S. Supreme Court decision, Winter v. Natural Resources Defense Council.  In Winter, the Supreme Court found that in order to grant preliminary relief, the plaintiff must show a likelihood of success on the merits, a likelihood of irreparable harm in the absence of relief, the balance of hardships tips in plaintiff's favor, and that the injunction is in the public interest.  While NWF contended that FEMA failed to implement the RPA prescribed by NMFS, FEMA countered that it had made significant changes to the NFIP and implemented most of the RPA's elements.  Setting the stage for its ultimate ruling on the motion, the court noted that FEMA need not implement the precise RPA set forth by NMFS; instead, the agency may implement an alternative that does not cause jeopardy.

After opining that "FEMA has implemented various and wide ranging changes to its flood insurance program that [FEMA] contends are sufficient to satisfy its obligations under the ESA," the court concluded that plaintiff has not provided any specific evidence that jeopardy will result from FEMA's implementation of the updated NFIP.  Therefore, the court held that NWF "fails to satisfy its burden of demonstrating a likelihood of irreparable harm in the absence of an injunction."  Having ruled on the issue of irreparable harm, the court declined to address any of the other factors, including whether NWF was likely to succeed on the merits.  NWF has indicated it will proceed with the case.

While FEMA has lost a number of cases challenging its implementation of the NFIP over the past decade, including the prior case by NWF that forced the agency to consult with NMFS regarding the effect of the NFIP on listed species in the Puget Sound, FEMA's defense of this lawsuit is a further indication of its intent to continue implementing the NFIP without regard for its effects on listed species in much of the nation.