Secretary of Interior Ken Salazar and Secretary of Commerce Gary Locke recently announced they are revoking “an eleventh-hour Bush administration rule that undermined Endangered Species Act (ESA) protections.” That rule, issued by the U.S. Fish and Wildlife Service and National Marine Fisheries Service on December 16, 2008, revised the process by which federal agencies “consult” with the Services in order to assure that their actions do not harm species listed as threatened or endangered under the ESA. (See Newsletter, Jan. 6, 2009.) By the rule, the Services said they aimed to “reduce the number of unnecessary consultations,” make more efficient use of their limited resources, and “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).” Environmental groups and the State of California sued to invalidate the rule, claiming it “guts” the ESA. By revoking the rule, the Departments of Commerce and Interior effectively return to consultation process as it existed beforehand—and resurrect questions about whether, and if so how, the Services should evaluate the effects of GHG emissions when consulting on various types of projects. In their announcement, the Departments also say they will conduct a joint review of their consultation regulations to determine if any improvements should be proposed.

The ESA protects listed species and their habitat in two general 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 rule issued last December, 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 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. With respect to global climate change, the Services simply limited their consideration of it, saying they think 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 they] do not believe that Congress designed or intended the ESA to be utilized as a tool to regulate global processes . . . .”

Normally, a federal agency may revoke its regulations only by completing a rigorous rule-making process including public notice and opportunity for public comments. Congress, however, prompted by controversy over the new rule, included a provision in the Omnibus Appropriations Act of 2009 allowing the Secretaries of Commerce and Interior simply to revoke the rule notwithstanding the requirements of any other law.

In returning to the pre-existing consultation rules and in considering whether and how to improve those rules, the Services will again confront questions of how to treat GHG emissions when they consult on the effects of particular projects on listed species. While two Obama administration nominees to Interior Department positions (Deputy Secretary David Hayes and Assistant Secretary for Fish, Parks, and Wildlife Tom Strickland) testified in their confirmation hearings that the Department does not intend to use the ESA to address GHG emissions, the Department nonetheless may be pressed by environmentalists or directed by courts to do just that. Several suits raising the issue are pending, and at least two district courts have already ordered the Services in certain instances to analyze the effects of global climate change on particular species.

In assessing whether and how to improve the existing rules, the Services may look for ways to streamline the consultation process, perhaps to expedite review of economic stimulus projects, and may find that some aspects of the Bush administration rule have merit in that regard. That rule aimed to minimize unnecessary consultations where there is little real prospect of adverse effects on listed species and enable the Services to focus their limited resources where meaningful results may be accomplished. To the extent that aspects of the revoked rule or perhaps yet-to-be-devised provisions promise to actually achieve those ends without unduly putting listed species at risk, the Services may see the improvements they seek.

 
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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