384 F. Supp. 3d 1111
N.D. Cal.2019Background
- FEMA administers the National Flood Insurance Program (NFIP), which conditions federal flood insurance on local adoption of FEMA floodplain management criteria; NFIP covers over 22,000 communities and ~5.6 million policies.
- In November 2016 FEMA issued a national biological evaluation concluding NFIP would have "no effect" on ESA-listed species or designated critical habitat and did not consult with FWS or NMFS.
- FEMA expressly excluded floodplain development from the Evaluation, reasoning that land-use permits are issued by state and local authorities and that NFIP does not cause development.
- Plaintiffs (Ecological Rights Foundation and Humboldt Baykeeper) sued under the ESA citizen-suit provision seeking to set aside the Evaluation as arbitrary and capricious for failing to analyze impacts from floodplain development and for not consulting the Services.
- The administrative record included prior biological opinions from FWS/NMFS finding NFIP likely to jeopardize species/habitats in other regions and studies (some dated) FEMA relied upon to support its exclusion of development impacts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Section 7 to NFIP | FEMA's NFIP administration may affect species and triggers Section 7 obligations | FEMA accepts Section 7 applies (for purposes of motions) | Court treated Section 7 as applicable and proceeded to review the Evaluation |
| "No effect" determination | The Evaluation was arbitrary for excluding floodplain development and ignoring indirect effects of NFIP | FEMA excluded development because permits are local and NFIP does not cause development | Court: FEMA acted arbitrarily and capriciously in carving out floodplain development; "no effect" set aside |
| Whether NFIP can indirectly cause/encourage development | NFIP's maps, insurance, CRS incentives, participation conditions and discretionary criteria can influence development decisions | FEMA claimed evidence shows insurance underutilized and market forces, not NFIP, drive development | Court: indirect or attenuated effects meet the low "may affect" threshold; FEMA's evidence was insufficient and selectively relied upon |
| Use of national, programmatic evaluation | A national evaluation can miss local variation and relevant regional impacts | FEMA argued the vast action area required a broad, national approach | Court: national, single Evaluation unfit to replace consideration of local variables and prior regional biological opinions |
| Consideration of prior Services' biological opinions | Plaintiffs: FEMA ignored prior jeopardy/opinion findings from NMFS/FWS that are relevant | FEMA criticized those opinions but did not meaningfully reconcile them in the Evaluation | Court: omission was a serious gap; FEMA must address those opinions on remand |
| Remedy — consultation or remand | Plaintiffs sought vacatur and possibly injunction; requested agency consultation | FEMA sought deference to its Evaluation and no relief for plaintiffs | Court: set aside the Evaluation and remanded to FEMA for further consideration; did not order consultation now and declined to enter injunction absent a separate motion |
Key Cases Cited
- Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978) (Congress intended endangered species priority over other agency missions)
- Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (Section 7 scope and agency obligations under ESA)
- Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006 (9th Cir. 2012) ("may affect"/consultation standards and formal/informal consultation framework)
- Ctr. for Biological Diversity v. EPA, 847 F.3d 1075 (9th Cir. 2017) (ESA gives endangered species priority; consultation purpose)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (administrative action arbitrary and capricious standard)
- Defenders of Wildlife v. Zinke, 856 F.3d 1248 (9th Cir. 2017) (review of agency ESA decisions under APA)
- Florida Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008) (NFIP subject to Section 7 and prior NMFS/FWS consultations)
- Alliance for the Wild Rockies v. Savage, 897 F.3d 1025 (9th Cir. 2018) (remand principles for inadequate administrative determinations)