Law Review Article Explains Legal Basis for Executive Action to Breach Lower Snake River Dams

Posted /Must Reads

As support for executive action to breach the lower Snake River dams grows, the published law review article “The US President and Army Corps’ Discretion and Authority with Regard to Executive Action in Furtherance of Breaching the Lower Snake River Dams” provides an in depth analysis of the legal basis for doing so.

From the introduction:

The hope is that the analysis presented in this article will lend further clarity to a pathway for breaching the lower Snake River dams that honors the biological urgency presented by the impending extinction of Snake River salmon and steelhead populations, and, in turn of the Southern Resident Orca population who depend upon Chinook salmon to survive…. Executive action has the advantage of flexibility and immediacy while Congressional authority is undoubtedly a longer, more complex, pathway. Understanding the legal landscape around executive branch authority elevates the conversation around dam breaching by alleviating misunderstandings about the need for Congressional authority to breach the dams.

Pathways for action by the executive branch include any or all of the following: (1) a Presidential Executive Order; (2) a directive by President Biden to the Corps (such as to the Corps’ Chief of Engineers, the Secretary of the Army, or the Assistant Secretary of the Army for Civil Works); or (3) a directive by the Corps’ Chief of Engineers (or the commander of the Corps’ Northwestern Division) to agency personnel.

In examining both the President’s authority (Part I) and the Corps’ authority (Part II) to breach the dams, the article concludes:

(1) The Biden Administration can exercise executive authority to take action in furtherance of breaching the lower Snake River dams as Commander in Chief pursuant to the US Constitution Art. II, § 2, cl. 1, and in accordance with the National Emergencies Act, the Endangered Species Act, the Antiquities Act, the River and Harbor Act of 1945, and to remedy Tribal treaty violations and secure environmental justice.

The Corps has the discretion to stop funding the dams, place them in caretaker or non-operational status, and secure them by breaching. The Corps may also breach the dams in accordance with its discretion under the River and Harbor Act of 1945 and its obligations under the Endangered Species Act.