Law360 Quotes Beth Ginsberg on Effects of 9th Circ. Culvert Decision

Environmental attorney Beth Ginsberg was quoted in Law360 in an article titled “9th Circ. Culvert Decision Sows Uncertainty For Projects.” The article discusses the possible effects of a recent decision by a Ninth Circuit panel that upheld an order directing the State of Washington to replace 1,000 culverts that infringed on tribal fishing rights.

A group of Pacific Northwest Tribes, along with the U.S. Government, had sued Washington in 2001, alleging that the culverts degraded fish habitat, decimated fish populations and hurt the tribes’ ability to catch an adequate number of fish. The Ninth Circuit, in denying the State’s request for en banc review of the panel’s decision upholding the District Court’s culvert replacement injunction, insisted that their decision should be interpreted narrowly; but many, including Ginsberg, see the ruling as imposing a new duty, for reasons beyond culverts, for the state to add protections for waterways that carry certain types of fish, such as salmon.

Ginsberg said that in the future parties opposed to projects could blame water withdrawal, pollution, climate change or other factors to effect a change. “Now somebody else can come up with their pet reason,” she said. “Any development along, for example, the Columbia River, or in Puget Sound, is fair game for ... aggressive arguments challenging new projects or even existing projects.”

Read “9th Circ. Culvert Decision Sows Uncertainty For Projects,” published May 24, 2017. (Subscription required.)