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Trump Track: Speed Bumps on the Road to Species Protection by Richard Glick JD Supra, August 15, 2019

At the heart of the litigation is whether the existence of four Lower Snake River dams should be presumed,
limiting evaluations for jeopardy to modifications to the projects or operations.

On August 12, 2019, the Trump Administration adopted three new rules in an attempt to rein in the Endangered Species Act (ESA). The rules would eliminate regulations in place since 1978 affording protections for "threatened" species similar to those listed as "endangered"; limit "critical habitat" designations where species do not now occur; and most controversially, inject economic considerations into the listing process.

President Nixon signed the ESA into law in 1973. At that time, environmental protection was not seen as the partisan issue it is today. The Clean Water Act, Clean Air Act and formation of the EPA all came during Nixon's watch with near-unanimous support in the Congress. Speaking on the ESA, Nixon said: "Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed."

Executive Branch Targets ESA Despite Broad Public Support

In enacting the ESA, Congress used uncommonly crisp and unambiguous language. For example, listing decisions must be "solely on the basis of the best scientific and commercial data available." Further, the Act directs federal agencies to "utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act."

The courts have given these words robust interpretations, beginning with TVA v. Hill, which halted the construction of the Tellico Dam to protected endangered snail darters. Since then, listed species have been protected by scores of ESA cases. In the Pacific Northwest, these cases often focus on salmon, northern spotted owls and shore birds at the expense of hydropower and the timber industry.

The ESA still enjoys broad public support but has been on the Republican hit list for decades due to the economic effects associated with species protection. Of particular note for this Administration, ESA restrictions stand in the way of oil and gas extraction and pipelines. Yet in an era when the White House and both houses of Congress were all in Republican hands, the Administration was unable to get passed any limitations on ESA jurisdiction.

Trump's Proposed Changes to ESA

The new rules represent the Administration's shot at reducing the scope of the ESA through policy and rulemaking. Here is a brief summary of some key elements:

Section 4(d) Rule

Under Section 4(d) of the Act, fish and wildlife agencies can establish protections or exemptions for certain activities, known as 4(d) rules. Since 1978 the agencies used a "blanket rule" treating "threatened" species the same as those designated "endangered," with occasional implementation of special 4(d) rules allowing less protection in special circumstances, for example, for bats and polar bears.

The new rule reverses that default position, requiring a specific 4(d) rule custom made to provide additional protection for threatened species. This change benefits industry in that the prohibition on "take" of listed species will not automatically apply to threatened species.

Of additional importance is the fact that the new 4(d) rules will take time to develop. In the interim, presumably development may proceed without fear of prosecution for take of a threatened species.

Critical Habitat

Historically, the agencies have on occasion elected to list as "critical habitat" areas in which listed species do not now occur, but potentially could. In Weyerhaeuser v. Fish and Wildlife Service, the U.S. Supreme Court suggested that such designations would not be available for areas that needed improvement to be good habitat, and remanded the matter back to the FWS.

The new rules require designation of areas as critical habitat where listed species currently exist before considering unoccupied areas, and then imposes new standards to demonstrate the species will benefit if extended to unoccupied areas.

The change would also allow the agencies to decline designation of critical habitat if they find doing so "not prudent." This includes changes to habitat from climate change. The rationale is that the government cannot control climate change, so taking steps to protect such habitat would be futile.

Section 7 Consultation

ESA Section 7 requires federal permitting or action agencies to consult with the fish and wildlife agencies about potential "jeopardy" to listed species. The new rule would affect the “baseline” used for such determinations. The jeopardy determination will apply only to the new activity; consultation is not required for ongoing activities that the action agencies lack discretion to change.

Assessment of ongoing activities is particularly relevant to the continuing litigation over the application of the ESA to the Federal Columbia River Power System, a series of hydropower and flood control dams in the Snake and Columbia Rivers. At the heart of the litigation is whether the existence of four Lower Snake River dams should be presumed, limiting evaluations for jeopardy to modifications to the projects or operations.

The agencies argued the Corps of Engineers, which operates the dams, has no discretion to modify their purpose and therefore the status quo is the proper baseline. Courts to date have not found this argument persuasive.

Listing Determinations

Perhaps the most controversial rule change centers on consideration of economic impacts in making a listing or delisting decision. As noted above, the ESA mandates listing determinations be based "solely on the basis of the best scientific and commercial data available."

The previous rule added for emphasis that the listing must be made "without reference to possible economic or other impacts of such determination." The new rule eliminates that language, allowing consideration of economic effects but, like the statute, also specifies the designation must be based on the best available science.

The Administration has offered no plans on how this analysis will be conducted. Environmental groups, not surprisingly, see this as a back door means of inserting economics into the decision-making.

What it Means There is broad scientific consensus that biodiversity among plants and animals is essential to long-term survival of life on the planet. Species go extinct or are imperiled every day, often but not always due to human activity.

The ESA was intended to address the man-made impacts to wildlife, and indeed there have been stunning successes—the bald eagle, grizzly bear and gray wolf, to name a few. But the economic dislocations from ESA implementation in many instances have been substantial, often without concomitant species recovery.

Columbia River salmon are still in trouble after billions of dollars spent. Protection of old growth timber for northern spotted owl habitat led to severe hardships to communities reliant on the forest products industry, only to find that the predation of spotted owls by barred owls could lead to the former's extinction.

There is nothing easy, or cheap, about preventing extinction. It is hubris to suggest government can fix the problem. But, having created much of the problem, it seems we have to try. Our effort must not be to only save the "charismatic mega fauna" that dominate media reports, like salmon and polar bears. Although the public generally supports saving iconic species, support for lesser known species is diminished. That is particularly so in rural communities with natural resource-based economies. Yet these relatively unknown species also play essential roles in the ecosystem.

The ESA, as well as the other major environmental statutes, is in need of reform to address the unintended consequences of the Act. That is a task only Congress can perform, but until they do the executive and judicial branches will fill the vacuum. In the meantime, environmental groups and some states have announced plans to challenge the new rules, which means another several years of litigation and uncertainty.

That is not a recipe for sound policy but is what we have until the national consensus on the environment returns. And no, I'm not holding my breath either.

Related Pages:
Breach Snake Dams; Leave Birds Alone by Joe Paliani, JD Supra, 8/15/19