New ESA Consultation Regulations Draw Immediate Fire

This week, a final rule revising Endangered Species Act (“ESA”) regulations governing federal interagency consultation takes effect.[1] The rule allows federal action agencies to decide, in certain circumstances, whether the projects that they undertake, fund or authorize will adversely affect listed species or critical habitat and trigger formal consultation requirements. Under the prior rule, either the National Marine Fisheries Service (“NMFS”) or the U.S. Fish and Wildlife Service (“USFWS,” together, the “Services”) would have had to concur with the action agency’s determination. The rule also provides that the emission of greenhouse gases (“GHGs”) by individual sources will not trigger consultation. Critics of the new rule charge that it eliminates needed environmental oversight and puts ESA decisions in the hands of agencies that lack scientific expertise. Proponents say that the rule streamlines and clarifies the consultation process.

Both sides agree that the new rule is likely to significantly reduce the number of projects required to undergo consultation with the Services. For that reason, it has drawn swift and aggressive fire, including lawsuits by the State of California and several environmental groups. The rule is also likely to be one of the first that the Obama Administration reviews when it takes office later this month.[2]

Statutory Background

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.…”[3] Under the ESA and its 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.[4]

The New ESA Rule

As previously reported in the Environmental News, the Services proposed the consultation rule in August 2008. In October 2008, the Services issued a Draft Environmental Assessment for the Proposed Modifications to Regulations Implementing Interagency Cooperation Under the ESA. In it, the Services describe the rule as an “administrative process modification” developed to improve the efficiency of the consultation process and the clarity of existing regulations – particularly with respect to causation standards and the definition of “indirect effects.” The Services concluded that the rule will not have “any significant environmental impacts.”

Under the new rule, federal agencies considering a project – either public or private – that requires federal authorization or involves federal funding, will decide whether the action requires consultation with the appropriate Service. Under the old rule, if the action agency determined that its project was not likely to adversely affect species or designated habitat (and therefore, does not require consultation), the appropriate Service had to concur with that determination. The new rule eliminate the concurrence requirement in certain circumstances: If the action agency does not anticipate that an action will adversely impact any member of a listed species and determines that action fulfills one of the following criteria: (1) the action has no effect on a listed species or critical habitat; (2) the action is wholly beneficial; (3) the effects of the action cannot be measured or detected in a manner that permits meaningful evaluation using the best available science; or (4) the effects of the action are the result of global processes and cannot be reliably predicted or measured at the scale of species’ current range, or would result in an “extremely small, insignificant impact” to a listed species or its critical habitat, or are such that the potential risk of harm to a species and its critical habitat is remote.[5]

The final rule is largely the same as the proposed rule, with one significant exception. In the final rule, the Services determined that the emission of GHGs by individual sources will not trigger consultation. The rule exempts from consultation the effects of actions that “are manifested through global processes and (i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or (ii) would result at most in an extremely small, insignificant impact on listed species or critical habitat; or are such that the potential risk of harm to a listed species or critical habitat is remote.”[6] The Services intend the phrase “manifested through global processes” to cover:

those effects that are the result of a specific source but become well mixed and diffused at the global scale such that they lose their individual identity. The combined effect of any particular source and other sources then becomes a potential contributor to a separate phenomenon with possible global impacts. Typically, however, the contribution of any particular source to the global process that then affects the local environment is very, very small. The most topical example of effects that would be manifested only through a global process is the effects of individual sources of [GHG] emissions and their contribution to global climate change and warming.[7]

The Services also characterize current models as incapable of “quantitatively link[ing] an individual action to localized climate impacts relevant to consultation[,]” but capable of showing that “the impacts of a particular source are likely to be extremely small. For example, … EPA provided a model-based analysis that projected that even the emissions of a very large coal-fired power plant would likely result in a rise in the maximum global mean temperature of less than one thousandth of a degree.”[8] The Services concluded that an “attempt to regulate effects at a global scale would have the untenable consequence of transforming the ’action area’ for consultation into the globe itself, which would eviscerate any meaningful limit on the concept of ’action area’ and defy analysis.”[9]

Related Regulatory Developments Concerning Climate Change and the ESA

The new rule is one of several efforts by the Departments of Interior and Commerce and the U.S. Environmental Protect Agency (“EPA”) to solidify the outgoing administration’s position on the intersection of climate change and the ESA. The Bush Administration formally articulated its position on the issue in May 2008 in the final rule promulgated by the USFWS listing the polar bear as a threatened species and related documents. Namely, that the emission of GHGs from projects requiring federal authorization does not trigger the ESA’s consultation requirements.[10] Concurrent with the polar bear listing, both the U.S. Geological Survey (“USGS”) and the USFWS issued guidance addressing “the challenges of linking carbon emissions, atmospheric [GHG] concentrations, global warming, and consequential impacts” and “expectations for consultations on actions that would emit [GHGs].”[11] The guidance memoranda echo the remarks of Interior Secretary Kempthorne and President Bush on climate change and the ESA – that “current science and models cannot link individual actions that contribute to atmospheric carbon levels to specific responses of species, including polar bears.”[12]

In October 2008, Interior Solicitor David Bernhardt issued an opinion on the applicability of consultation requirements on proposed actions that emit GHGs.[13] In it, he agreed with the USFWS and the USGS, concluding that “where the effect at issue is climate change in the form of increased temperatures, a proposed action that will involve the emission of [GHGs] cannot pass the ‘may affect’ test [under the ESA] and is not subject to consultation[.]”[14] Also in October, by letter to the USFWS and NMFS, EPA requested the Services’ concurrence with EPA’s determination that the issuance of Clean Air Act permits for activities that emit GHGs “in amounts equal to or less than” a modeled facility “does not require consultation with [either Service] under section 7(a)(2) of the ESA to address the remote potential risks that public commenters suggest [GHG] emissions from an individual source could be present for certain listed species.” In support of its conclusion, EPA described what it views as “uncertainties” in some “models’ outputs to predict impacts at a local level,” and correspondingly uncertain effects of anticipated emissions on listed species and habitat.[15] “Given the very small global mean climate change magnitudes projected based on the emission of this type of single source,” EPA wrote, “we believe the outputs of such a single source impact analysis for other species in other locations would also be of an extremely small magnitude that is too small to physically measure or detect.”[16]

Lawsuits Challenging the New ESA Rule

On the same day that the Services published the final ESA rule, the Natural Resource Defense Council and four other environmental groups filed suit in the U.S. District Court for the Northern District of California, asking the court to vacate and remand the rule for the Services’ alleged violations of the ESA, the National Environmental Policy Act (“NEPA”) and the Administrative Procedure Act (“APA”).[17] The groups contend that the rule will “weaken wildlife and habitat protections under the ESA by allowing federal agencies to unilaterally determine, without the expert input or oversight by the Services required by law, that their actions will have no adverse effects on threatened and endangered species and their critical habitat.”[18] They also object to the Services’ “wholesale exemption of global warming effects from Section 7 consultation.”[19]

On December 29, 2008, California Attorney General Edmund Brown also filed suit against the Services, requesting that the U.S. District Court for the Northern District of California vacate the rule.[20] The State of California contends that the rule “substantially alters” Section 7 requirements, in violation of the ESA, NEPA and the APA.[21] The State argues that it will be particularly affected by adverse environmental fallout from the rule, due to the 310 plant and animal species in the State that are listed under the ESA, as well as its extensive federal public lands, water projects, and other federal facilities and infrastructure projects, as well as non-federal facilities and projects that are and will be subject to Section 7.[22] Accordingly, the State avers that the rule adversely affects the “concrete, proprietary interests” of the people of California in protecting the State’s natural resources.

Conclusion

The Services describe the rule as a procedural modification that that will improve efficiency and result in insignificant environmental impacts. Rule opponents argue that it will allow federal agencies that lack biological expertise to unilaterally exclude the Services from assessing the effects of certain projects on listed species and habitat.[23] Both sides will have the opportunity to argue these positions to the new administration and in the courts.

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