The U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a rule on December 16, 2008, revising the process for federal agencies to “consult” with the Services in order to assure that their actions do not harm species listed as threatened or endangered under the Endangered Species Act (“ESA”). By the rule, the Services aim to “reduce the number of unnecessary consultations” and make more efficient use of the Services’ limited resources and also to “reinforce the Services’ current view that there is no requirement to consult on greenhouse gas (GHG) emissions’ contribution to global warming and its associated impacts on listed species (e.g., polar bears).” Landowners, developers, and others needing federal permits to use or develop land stand to benefit to the extent that the new rule reduces the occasions for costly, time-consuming consultations with the Services. Environmental groups and the State of California have sued to invalidate the rule, claiming it “guts” the ESA.

The ESA generally protects listed species and their habitat in two ways. First, the Act prohibits any person from “taking” an endangered or threatened species without authorization by the pertinent Service. Second, the Act calls on federal agencies, in consultation with the Services, to ensure that any actions they authorize, fund, or carry out are not likely to “jeopardize” the continued existence of any listed species or result in the “destruction or adverse modification” of the designated “critical habitat” of any such species. Toward this end, the Services’ implementing regulations have long provided that whenever a federal agency finds that its “action,” such as issuance of a permit, “may affect” listed species or designated critical habitat, the agency must initiate “formal consultation” with the pertinent Service about that action—unless the agency informally consults with the Service and finds, with the Service’s concurrence, that the action is “not likely to adversely affect” the species. If the agency and the Service proceed with formal consultation, that process concludes with the Service’s issuance of a “biological opinion” on whether the agency’s action would jeopardize the continued existence of the species or destroy or adversely modify its critical habitat and whether the action would “take” any members of the species, in which case the Service prescribes alternatives to avoid jeopardy or measures to minimize the effect of any such take.

Under the new rule, a federal agency must formally consult with the Service whenever it determines that its action “may affect” a listed species or its critical habitat unless the agency further determines that its action is “not anticipated to result in take” of a listed species and any of four circumstances exist: (1) the action has “no effect on a listed species or critical habitat,” (2) the effects of the action are “wholly beneficial,” (3) the effects are “not capable of being measured or detected in a manner that permits meaningful evaluation,” or (4) the effects of the action are “manifested through global processes” (e.g., climate change) that cannot be reliably predicted or measured at the scale of a listed species’ current range, would result at most in an extremely small and insignificant impact on a listed species or critical habitat, or are such that the potential risk of harm to a listed species or critical habitat is remote. Upon making one of these determinations, the action agency may proceed with the action without seeking concurrence from the Service.

In essence, apart from the global climate change provisions, the Services have refined the trigger for formal consultation so they and federal agencies “don’t sweat the small stuff” and focus their limited resources on actions that realistically have some potential to adversely affect listed species. As the Services put it, in order to meet the challenges of an ever-increasing workload, they developed these “carefully crafted and narrow categories of actions for which they believe case-by-case consultation would not be necessary or beneficial” because the actions “are far removed from any potential for jeopardy or destruction or adverse modification of critical habitat.”

With respect to global climate change, the Services have simply decided to limit their consideration of it, explaining that consultation under the ESA “is not an appropriate or effective mechanism to assess individual Federal actions as they relate to global issues such as global climate change and warming [and we] do not believe that Congress designed or intended the ESA to be utilized as a tool to regulate global processes . . . .” While noting that the rule would render consultation unnecessary for “actions involving the emission of greenhouse gases so long as they met the threshold of no anticipated take and one of the [other specified criteria],” the Services add that it “does not preclude the appropriate consideration of climate change, generally, for purposes of establishing the environmental baseline [from which project impacts are gauged] and the status of the species in the action area. For example, if, based upon the best available information it is determined that the action area will face a different precipitation pattern than it had experienced in the past (from the effects of climate change overall rather than from the project under consideration) that information would be appropriately evaluated for purposes of establishing the environmental baseline.”

Informal consultation—with new time limits—also remains an option. If an agency informally consults with the Service, concludes that its action is “not likely to adversely affect” a listed species, and the Service concurs, then formal consultation is not required. If the agency requests Service concurrence and the Service does not respond within 60 days (or 120 days, if the Service requests an extension), the agency may, upon written notice to the Service, terminate consultation and proceed with its action. Noting that “[e]xperience has shown that under the existing regulations informal consultations can be prolonged, sometimes lasting longer that formal consultations,” the Services explained that “[a]dding a time frame to this process is expected to contribute to achieving the efficiencies that were anticipated” when they introduced informal consultation in the 1970s.

The rule also clarifies that the “indirect effects” of an action, which federal agencies and the Services must evaluate in making the foregoing determinations, are those effects for which the action is the “essential cause, and that are later in time, but still are reasonably certain to occur.” “A conclusion that an effect is reasonably certain to occur,” the rule adds, “must be based on clear and substantial information.” “If an indirect [sic] effect would occur regardless of the action,” the Services explain, “then the action is not an essential cause of that effect . . . . Similarly, when the agency action merely helps to facilitate an effect it is not necessarily an essential cause of the effect. In such circumstances, it is appropriate to consider the nature of intervening factors and whether and the extent to which the potential effect to the species requires independent action by someone other than the Federal agency or the entity it funded or authorized.”

Critics of the rule argue that federal agencies lack the expertise and incentive to properly determine the effects of their actions on endangered species without consulting the Services. The Services respond that for several decades federal agencies have already been determining whether their actions “may affect” listed species and thus whether they need to consult with the Services. The rule, they say, is but an “incremental change regarding the extent to which the action agencies will make their own determinations about the effects of their actions on listed species.” Most major agencies, the Services observe, already have well-qualified staff to support their ESA compliance. Moreover, they note, nothing in the rule precludes an agency from drawing on the expertise of the Services or other sources as it deems necessary or useful. Because agencies remain obligated under the ESA to assure that their actions do not jeopardize the continued existence of any listed species or destroy or adversely modify the critical habitat of any such species or take any such species, they have a “strong incentive,” say the Services, to make appropriate determinations and avoid having courts overturn their determinations and perhaps hold them or members of their staff liable for unauthorized taking of listed species

Some critics have also called for the incoming Obama administration to reverse the new rule. Because it becomes effective on January 15, before the new administration takes office, such a reversal would require the completion of a new rulemaking process, which could take the better part of a year. In the meantime, federal agencies will operate under the new rule, and experience will tell whether it guts the ESA by allowing federal agencies free rein to discount the impacts of their acts on endangered species, as critics warn, or improves the ESA by making commonsense refinements of the consultation process, as the Services maintain.

David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.


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