Proposed ESA Rule Could Significantly Reduce Section 7 Consultations

On August 15, 2008, the National Marine Fisheries Service (“NMFS”) and the U.S. Fish and Wildlife Service (the “USFWS,” together, the “Services”) jointly published a proposed rule that would revise Endangered Species Act (“ESA”) regulations governing federal interagency consultation.[1] The rule would allow federal agencies to decide for themselves, without concurrence by the Services, whether the projects that they undertake, fund or authorize would adversely affect listed species or critical habitat and trigger formal consultation requirements. Combined with definitional changes in the consultation regulations, the rule could significantly reduce the number of projects required to undergo consultation with the Services, and thereby narrow the regulatory impact of the ESA. The Services are accepting public comments on the proposed rule through September 15, 2008.

Background to the Proposed Rule

Under Section 7 of the ESA, federal agencies must ensure that “any action authorized, funded, or carried out by such agency … is not likely to jeopardize the continued existence of any endangered … or threatened species or result in the destruction or adverse modification of [designated critical] habitat.…”[2] Under the statute and implementing regulations, when an action with a federal nexus may adversely affect a listed species or designated critical habitat, the agency undertaking or authorizing the project (the “action agency”) must consult with the appropriate Service (generally, NMFS for anadromous and marine species, and the USFWS for freshwater and terrestrial species), in order to ensure that the relevant activity does not jeopardize the species or habitat.[3] The ESA also prohibits “any person” from “taking” listed species.”[4] To “take” a species means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[5] Service regulations define “harm” to include significant habitat alteration that actually kills or injures a species by significantly impairing essential behavior patterns, such as feeding, breeding, and sheltering.[6]

In the preamble to the proposed rule, the Services explained that Congress has not comprehensively amended the ESA since 1988 and that, with the exception of two narrow revisions, the Services have not amended the consultation regulations since 1986. The Services listed the following events as catalysts for the proposed rule: (1) the experience gained by the Services, federal and state agencies, and property owners over the past 22 years in implementing the ESA; (2) Government Accountability Office (“GAO”) reviews of Section 7 implementation; (3) decisions by federal courts “regarding almost every aspect” of Section 7 and its implementing regulations; and (4) “new challenges … with regard to global warming and climate change” – specifically, the May 2008 polar bear listing.[7] In a 2004 report, the GAO concluded that the consultation process could be improved, and recommended that the Services and federal agencies “‘resolve disagreements about when consultation is needed.’”[8] The proposed rule is a response to that recommendation, as well as to the events described above.

Significant Elements and Analysis of the Proposed Rule

Under the proposed rule, federal agencies considering a project – either public or private – that requires federal authorization or involves federal funding, would decide whether the action requires consultatation with the appropriate Service. Under the present law, if the action agency determines that its project is not likely to adversely affect species or designated habitat (and therefore, does not require consultation), the Service must concur with that determination. The new rule would eliminate the concurrence requirement in certain circumstances. If the action agency determines that a “take is not anticipated and the potential effects are either insignificant, incapable of being meaningfully evaluated, wholly beneficial, or pose only a remote risk of causing jeopardy or adverse modification or destruction of critical habitat” – then consultation would not be required.[9]

The proposed rule would also change certain definitions in the consultation regulations. First, the Services would amend the definition of “cumulative effects” to clarify that the term does not have the same meaning as the term “cumulative impacts” under the National Environmental Policy Act (“NEPA”). The current (and proposed) ESA definition is narrower than the related NEPA definition. Under the proposed rule, the Services would further clarify that cumulative effects, like indirect effects, must be “reasonably certain to occur” to merit consultation, and that cumulative effects considered during Section 7 consultations do not include future federal actions.[10] Second, the proposed rule would amend the definition of “effects of the action.” Under the current definition, “effects of the action” includes indirect effects that occur later in time, are caused by the action undergoing consultation, and are reasonably certain to occur.[11] On the causation standard, the proposed rule would require that a clear two-part test be met for an indirect effect to be assessed during consultation: (1) the action undergoing consultation must be an “essential” or “but for” cause of the effect; and (2) the effect must be “reasonably certain to occur,” in that the action agency has the “requisite confidence that an effect will happen,” based on “clear and substantial information”[12]

To illustrate the intended practical effect of the proposed definitional changes, the Services offered the following examples in the proposed rule:

(1) If the action under consultation is issuance of a U.S. Army Corps of Engineers (the “Corps”) permit necessary to allow a pipeline to cross a narrow waterway, “one could argue that ‘‘but for’’ the Corps’ permit to cross the waterway, the pipeline could not be constructed and none of the future effects from the construction or operation of that lengthy pipeline would occur. Therefore, under this line of reasoning, in addition to considering the effects of the crossing (the permitted activity) on protected species in the area, the Corps would also have to consider the effects of the construction and operation of the entire pipeline on [listed] species. But because the permitted crossing is not essential to the entire pipeline[,] … it is no more than a marginal contributor to the effects of the construction and operation[, and] … there is an insufficient causal connection to attribute all of the future effects of the construction and operation of the pipeline” to the Corps permit.

(2) “On the other hand, an action to build a marina (in an area where there is currently no boat traffic) may also need a permit from the Corps. In this case, the permitted activity itself (building the marina) is an essential cause of the future effects (increased boat traffic) that are related to the building of the marina. The marina cannot be built without the permit, and the permit will largely determine the capacity, configuration, etc. of the entire marina, and therefore is an essential cause of any effects resulting from the building of the marina as permitted. By contrast, in the first example, the planned waterway crossing …will not determine or even significantly affect the construction and operation of the pipeline except in the vicinity of the crossing. The crossing should not be seen, therefore, as an essential cause of future effects associated with the construction and operation of the entire pipeline.”[13]

The rule would also reiterate that: (1) Section 7 applies only to “discretionary” federal actions;[14] and (2) “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).”[15] At the time of the polar bear listing,[16] Secretary of Interior Dirk Kempthorne stated that the USFWS would subsequently revise ESA consultation regulations in order to, among other things, “prevent abuse of the listing to erect a backdoor climate policy outside our normal system of political accountability.”[17] In the proposed rule, the Services noted that, when a federal agency funds a new highway, “vehicle use of the highway may result in changes in GHG emissions.” The propose rule would “make explicit that while the impact of tailpipe emissions on local air pollution could be an effect of the action, the GHG emissions’ contribution to global warming and associated impacts to listed species (e.g., polar bears) are not, and the effects of those impacts would not need to be considered in any consultation.”[18] This is because, under the proposed rule and the Services’ interpretation, the GHG emissions from highway construction “are not an ‘essential cause’ of any impacts associated with global warming[,]” and the “effects of the action” within the meaning of the proposed revisions would not include any impacts associated with global warming.[19]

Conclusions

The proposed rules are controversial, and immediately drew criticism from environmental groups and others.[20] Some critics charge that the rule asks the fox to guard the henhouse, as action agencies could opt out of consultation without obtaining the Services’ concurrence.[21] On the other hand, the Services argue that, “[b]y clarifying that certain actions do not require consultation,” the rule would allow them to better fulfill their statutory obligations by focusing “time and resources on analysis and actions that really make a difference in protecting species.”[22] Secretary Kempthorne describes the intended effect of the rule as “prevent[ing] an expansion of the ESA into an inefficient, indirect avenue for [GHG] regulation, a purpose for which the ESA was never intended—and for which it is ill suited, without exposing listed species to any additional harm.”[23]

For additional information on the proposed rule or the ESA, contact Jessica Ferrell or any other member of Marten Law Group’s Endangered Species and Natural Resources practice group.