The Year Ahead in Energy and Environmental Law: Natural Resources

Oceans and Fisheries

Catch Shares

In what could be a revolutionary shift in fisheries management, the National Oceanic and Atmospheric Administration (“NOAA”) issued a policy promoting the use of “catch shares” – a system that divides up and allocates percentages, or shares, of the total allowable catch to individual fishermen or fishing groups – in federal fisheries management programs.Oceans and Fisheries

Catch Shares

In what could be a revolutionary shift in fisheries management, the National Oceanic and Atmospheric Administration (“NOAA”) issued a policy promoting the use of “catch shares” – a system that divides up and allocates percentages, or shares, of the total allowable catch to individual fishermen or fishing groups – in federal fisheries management programs.[1] In December 2009, NOAA released a draft catch shares policy, which encourages the use of catch share programs in fishery management while pledging NOAA’s administrative and technical support of the design and implementation of these complex and often controversial programs. Although forms of catch share programs have been used in the management of discrete regional fisheries, primarily in Alaska, since 1990, the relative merits and benefits of such programs remain controversial. Because the new national policy endorses transitioning to the widespread use of catch share programs “wherever appropriate,” there will likely be debate in 2010 regarding whether catch shares are suited to particular fisheries and, if so, how to ensure that those programs are efficient, fair, and reliable.

Ocean Policy Task Force

In 2009, the Obama Administration established an Interagency Ocean Policy Task Force, led by the White House Council on Environmental Quality, to develop recommendations for a national policy that ensures protection, maintenance, and restoration of oceans, coasts, and the Great Lakes, as well as a framework for coastal and marine spatial planning. The Task Force has issued two interim reports. The first contains the Task Force’s recommendations for a national ocean policy and a framework for implementing that policy. The second recommends overhauling the federal approach to coastal and marine planning by moving away from sector-by-sector and statute-by-statute decision-making toward comprehensive, ecosystem-based planning through plans developed in conjunction with states, tribes, local authorities, and regional governance structures, with stakeholder and public input. The Task Force will publish a final report in 2010. The recommendations in that report, if implemented, could significantly change the course of ocean management.

National Standard 2

NOAA is also considering revisions to the guidelines for National Standard 2 (“NS2”) of the Magnuson-Stevens Fishery Conservation and Management Act which requires the use of the best scientific information available in fisheries planning.[2] Adoption of NOAA’s proposed rule could change the process for peer review, collection and analysis of scientific information used in fishery conservation and management measures.

Endangered Species Act

Climate Change and the ESA

For the past few years, the highest profile ESA debates have centered around the statute’s intersection with climate change issues. This trend will likely continue.

In 2006, NOAA listed elkhorn and staghorn coral based in part on climate change.[3] In 2008, the issue came to the mainstream fore when the U.S. Fish & Wildlife Service (the “USFWS”) listed the polar bear.[4] In October 2009, the USFWS proposed to designate 200,541 square miles of critical habitat in the Arctic for the bear – the largest area ever proposed for critical habitat.[5] If formally designated this year as expected, the regulatory implications of Section 7 could have significant consequences for activities in the Arctic.[6]

In 2008, many speculated that the polar bear listing would allow for challenges to any activities that emit greenhouse gases (“GHGs”). The Bush administration took the position that the ESA was not intended to and should not indirectly regulate GHG emissions. ESA policies under the Obama administration differ from those of the Bush administration in some respects, but not this one. The Obama administration upheld a controversial Bush rule in which the USFWS adopted existing regulatory requirements as the protective measures for polar bears. Interior Secretary Salazar has also stated that the ESA is not intended to regulate GHGs, and that the United States instead “need[s] a comprehensive energy and climate strategy that curbs climate change and its impacts.”[7]

Climate change impacts have also spurred petitions to list a variety of other species.[8] Regulatory effects of additional listings would affect oil and gas activities, commercial fishing, sport hunting, mountain recreational activities and development, and any development requiring federal authorization in areas containing listed species or critical habitat.

Listings by NOAA and the USFWS (together, the “Services”) and related decisions continue to be the subject of several lawsuits that have postponed and halted projects and permits,[9] precluded delisting decisions,[10] and required the Services to analyze climate change effects on species.[11] In 2010 and beyond, such lawsuits could continue to change the way the Services administer the ESA, particularly with respect to the examination of climate change effects on listed species.

Consultation

In 2008, the Bush administration promulgated a rule that allowed federal agencies conducting, permitting or financing projects to decide on their own whether the projects would adversely affect listed species and require consultation with federal resource managers under Section 7 of the ESA.[12] In 2009, the Departments of Commerce and Interior revoked that rule, restoring the status quo to the consultation process. In 2009, the USFWS announced that, in 2010, it may attempt to revise the ESA, potentially changing key definitions governing consultation and critical habitat.[13] The USFWS has not yet proposed any rules to this end or made any formal announcements explaining what those rules might entail.

Renewable energy projects and the ESA

Investment in new sources of energy production such as solar, wind, tidal and wave power and biofuels as a means of combating global warming is increasing, in part because of federal investment in such sources as part of the stimulus package. Although turning to energy sources that reduce GHG emissions may benefit some species, it could put greater stresses on others.

Project impacts on Indiana bats in West Virginia and desert tortoises in California are illustrative. In West Virginia, a federal judge recently enjoined construction and operation of a wind energy project based on the “virtual certainty” that the project will “take” endangered Indiana bats.[14] In California, BLM released NEPA documents for public comment pertaining to the Ivanpah Solar Electric Generation System and California Desert Conservation Area.[15] The project and its projected impacts on sensitive species living in the Mojave Desert, particularly the endangered desert tortoise, highlight the tensions between encouraging renewable power to fight climate change and protecting endangered species. These conflicts could lead to battles within the environmental community itself, as the cost to some of reducing carbon emissions may be viewed as too high for species protection.