On April 12, 2012, Judge Martinez, U.S. District Court, Western District of Washington, issued a decision denying the National Wildlife Federation’s request for a preliminary injunction to halt the sale of flood insurance and floodplain map revisions in the Puget Sound stating that the NWF failed to demonstrate likely environmental harm absent the requested injunction.

[e]vidence that new flood insurance policies have been issued does not constitute proof that listed species are likely to suffer harm.”  He explained: “the issuance of flood insurance policies by itself does not cause jeopardy to listed species; it is the issuance of such policies in the context of a program that is implemented in a certain way that causes jeopardy.  

 -Judge Richard Martinez

I.          Background

In 2003, the National Wildlife Federation (“NWF”) filed suit against FEMA alleging that FEMA had failed to consult with NOAA-Fisheries regarding the impact of the National Flood Insurance Program (“NFIP”) on threatened Puget Sound Chinook Salmon in the Puget Sound region.  In 2004, Judge Zilly, U.S. District Court, Western District of Washington, agreed, concluding that FEMA had violated Section 7(a)(2) of the ESA by failing to consult with NOAA-Fisheries regarding certain elements of the NFIP.  Thereafter, following significant, but unsuccessful, negotiations between FEMA and NOAA-Fisheries, NOAA-Fisheries issued a Biological Opinion concluding that FEMA’s implementation of the NFIP in the Puget Sound region likely jeopardized the continued existence of several ESA listed species and adversely modifies their critical habitat (“NFIP BiOp”).  As part of its jeopardy finding, NOAA-Fisheries set forth a seven element “reasonable and prudent alternative” (“RPA”) outlining changes that FEMA could make to its implementation of the NFIP to reduce the adverse impacts on the listed species.

 II.         Current Suit

In December 2011, NWF once again filed suit against FEMA, this time asserting that FEMA had violated the ESA because it had failed either to fully implement the RPA from the NFIP BiOp, or to take other alternative actions to avoid “jeopardy” or “take” of ESA listed species.  On December 21, 2012, NWF requested that the Court issue a preliminary injunction stopping FEMA from selling flood insurance for new development within approximately 75 jurisdictions in the Puget Sound region, and stopping FEMA from processing floodplain map revisions within all 122 participating NFIP jurisdictions in the Puget Sound region, until FEMA complied with the ESA. 

On April 12, 2012, Judge Martinez, U.S. District Court, Western District of Washington, denied NWF’s request, concluding that NWF had failed to make the necessary showing of “irreparable harm” to the ESA listed species in the absence of the injunction.  To prevail on a request for a preliminary injunction in an ESA case, the plaintiff must demonstrate both that it is likely to prevail on the merits of the underlying claim (here that FEMA is violating the ESA) and that the ESA listed species is likely to suffer irreparable harm absent the injunction.

In making its case for irreparable harm, NWF relied almost entirely on the conclusions in the NFIP BiOp that FEMA’s pre-2008 implementation of the NFIP caused jeopardy and take to the ESA listed species.  Judge Martinez rejected this approach.  Without expressing any position regarding the adequacy of FEMA’s efforts to date, Judge Martinez explained that, although FEMA may not have fully implemented all elements of the RPA, FEMA had plainly made significant changes to the way it implements the NFIP.  Judge Martinez explained that NWF needed to show irreparable harm based on the way FEMA is implementing the NFIP now, not based on how it implemented the program prior to the 2008 NFIP BiOp.  The Judge wrote: “Since FEMA has significantly altered the manner in which it implements the NFIP in the Puget Sound region, the BiOp’s conclusion that the 2008 version of the NFIP caused jeopardy to listed species is insufficient to demonstrate that the current implementation of the NFIP also is likely to cause jeopardy.”  Order at p. 18.  Thus, Judge Martinez determined that although NWF had shown the there was a possibility of harm, NWF had failed to make the requisite showing of likelihood of harm necessary to support a preliminary injunction.

Having concluded that NWF had failed to demonstrate irreparable harm, Judge Martinez declined to opine on the merits of NWF’s case and its likelihood of success.  In a footnote, however, Judge Martinez did “note that the BiOp does not appear to support Plaintiff’s strict interpretation.”  Order at 9, fn 1.