Sean V. O’Brien: Additional Snake River dams hearing needed for courtroom oversight, accountability

By Sean V. O’Brien

If there is one takeaway from Monday’s U.S. House Natural Resources Committee field hearing in Richland – aside from the overwhelming support for the Snake River dams demonstrated by the 400 community members in attendance – it is that robust oversight is desperately needed over the Biden Administration’s handling of the ongoing litigation in the Columbia Basin.

For three decades, the region has been mired in a persistent cycle of lawsuits over the National Environmental Policy Act and Endangered Species Act, the Snake River dams and native salmon species. The most recent iteration of the courtroom imbroglio currently stands amidst a 13-month extended stay initiated by the Council of Environmental Quality , the political coordinating office for the White House’s environmental agenda.

At the behest of CEQ, the Federal Mediation and Conciliation Service has been facilitating ongoing mediation between the litigants to – as the Biden Administration puts it – “facilitate broad regional buy-in to collaborative processes essential to durable strategy for obtaining long-term comprehensive solutions.”

Unfortunately, the process has been anything but.

Earlier this year, organizations involved in the mediation representing hundreds of thousands of regional ratepayers, communities, irrigators and agriculture interests penned a letter expressing “grave concerns” regarding the ongoing mediation process.

“It is becoming increasingly clear that reaching true consensus is not only eluding participants but may not even be the goal of the discussions,” the Feb. 6 letter stated. “Rather, the mediation appears focused on creating a venue – without meaningful public and stakeholder input, transparency, or third-party accountability and validation – to advance predetermined outcomes, including in particular, the removal of the Lower Snake River Dams.”

Monday’s hearing, while looking at numerous components of the Columbia Basin’s river-power system, rightly brought these CEQ/FMCS process concerns to the forefront. Alongside local Members of Congress Cathy McMorris Rodgers and Dan Newhouse as well as Georgia Congressman Mike Collins, House Subcommittee on Water, Wildlife and Fisheries Chairman Cliff Bentz from Oregon expertly laid out the current status of the courtroom mediation, underscoring the fact that the very future of the region is being negotiated in secret behind closed doors – including out of the purview of Congress.

As many advocates for the Columbia Basin’s federal river-power system have stated for years, it would take an act of Congress to breach the dams. But the real threat to the viability of the system is likely not going to come from a sudden, course-changing piece of legislation from Congress. Rather, the more realistic demise of the dams would come via death by a thousand cuts – by regulatory fiat, by courtroom deals, and by judges and bureaucrats running the river-power system, rather than the system’s expert engineers and scientists.

In effect, while the Snake River dams are federal infrastructure and thereby fall under the authority of Congress, federal bureaucrats are bypassing Congress by making operational or functional determinations behind closed doors through the courtroom process. The U.S. Army Corps of Engineers witness even confirmed during questioning that operational changes “would be at the discretion of the agency” – not Congress.

As Chairman Bentz went on to state, “I’m particularly challenged by seeing how agencies are acting in a way that would moot the oversight of Congress.” Responding to a government witness who reaffirmed the secrecy mandated by the mediation, Bentz specified, “Yes, it is confidential, I know that. I wanted you to say it out loud so everybody here knew that their future is being mediated by a group of parties to a lawsuit and they have no part in it.”

So, as the so-called mediation continues to take place out of the public’s view and out of the reach of Congress’s authority – the current deadline for a settlement determination is the end of August – it is clear that Congress must take immediate steps to assert its oversight responsibilities. That would begin with an additional hearing dedicated solely to reviewing the CEQ/FMCS mediation process.

The House Natural Resources Subcommittee on Oversight and Investigations or the House Committee on Oversight and Accountability should hold a hearing, be it another field hearing here in Eastern Washington or one in the halls of Congress. Congress must exert its oversight authority by devoting more attention to the ongoing backroom deals being entirely led by bureaucrats who are basing their decisions on a political agenda, not on what is best for the future of the region.

As Chairman Bentz concluded, “What you’re doing is working together in this mediation to determine an operational means of mooting, neutering, taking away these dams. That’s what really going on.”

The current courtroom mediation proceedings have cast a shroud over these critical decisions and call into question the Administration’s commitment to a true consensus-based process. Congress should step in.

Sean V. O’Brien is the Eastern Washington director for Washington Policy Center. He is the former executive director of the Congressional Western Caucus and is based in the Tri-Cities. You can watch Monday’s U.S. House Natural Resources Committee hearing at www.naturalresources.house.gov.