Proposed Section 7 consultation rule revision announced by FWS and NOAA
73 Fed. Reg. 47868 (Friday, August 15, 2008)(DEPARTMENT OF THE INTERIOR; Fish and Wildlife Service; 50 CFR Part 402; [FWS–R9–ES–2008–0093] RIN 1018–AT50; DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration; 50 CFR Part 402; [0808011023–81048–01] RIN 0618–AX15; Interagency Cooperation Under the Endangered Species Act; Proposed Rule)
The Department of Interior, undaunted by the criticisms of the proposed ESA regulations, has been aggressive in defending the proposal. See Press Release and DOI Home Page with Myths and Realities. Image of Secretary Kempthorne at a recent conference.
SUMMARY: The United States Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, ‘‘Services’’ or ‘‘we’’) propose to amend regulations governing interagency cooperation under the Endangered Species Act of 1973, as amended (Act). The Services are proposing these changes to clarify several definitions, to clarify when the section 7 regulations are applicable and the correct standards for effects analysis, and to establish time frames for the informal consultation process. DATES: We must receive your comments by September 15, 2008 to ensure their full consideration in the final decision on this proposal.
RECAP: Earlier this week, the AP obtained a copy of these proposed regulations, and ESA blawg (Aug. 11, 2008) posted a summary of the regulations. Criticism has been immediate and abundant. In fact, The New York Times not only offered a harsh editorial, but also took the additional step of helping its readers to submit their own critiques. Remarkably, FWS has announced that it WILL NOT ACCEPT E-MAIL. See San Francisco Chronicle. NRDC has offered to help people with that problem by printing their e-mail submissions. See Andrew Wetzler, NRDC Switchboard.
EXCERPT: The core (and most controversial) section of the proposed regulations states as follows:
§ 402.03 Applicability.
(a) Section 7 of the Act and the requirements of this part apply to all actions in which the Federal agency has discretionary involvement or control.
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1) Such action has no effect on a listed species or critical habitat; or
(2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
(ii) Are wholly beneficial; or
(iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.
KEITHINKING:In general, I agree with some of the criticisms, and the need for careful public scrutiny of these regulations. However, I offer five substantive observations...
First, these proposed regulations do not create an entirely new process. Rather, they expand the informal consultation process, expand the range of circumstances not requiring consultation at all, and leave some discretion to the action agency – procedures that already exist. Many federal agencies have experienced biologists who already have the responsibility to review proposed federal actions and to discern whether (or not) to engage in formal, or informal, consultation with the expert scientists at FWS and NOAA. Moreover, under the ESA (and even under the proposed regulations) those action agencies have an incentive not to unreasonably avoid consultation, because if they do, the ESA includes a citizen suit provision, and our nation includes many environmental watchdogs ready to challenge such abuses of the law.
Second, many of the editorials and criticism rely upon absolutely worst case assumptions of evil and wrongdoing by the federal government. From those assumptions, the critics extrapolate disasterous scenarios that every federal agency will now abuse the informal consultation process, and never again use the formal consultation process. While history justifies such fears in some instances -- see ESAblawg discussions of the abuses by former DOI officer Julie MacDonald -- such worst case politics, fortunately, affect only a small percentage of the entire universe of Endangered Species Act issues. The overwhelming number of federal decisions involve federal agency career staff, dedicated civil servants trying to do public good, and not the politically-minded members of a presidential administration.
Third, to some extent, these regulations may represent an attempt to manage workloads for FWS and NOAA, so I have some sympathy for the agencies. Congress has insufficiently funded FWS and NOAA, making it difficult for the two agencies to adequately address every consultation. The regulations themselves can be seen, cynically, as counting on that reality. If adopted, the proposed regulations do allow a federal agency proposing an action to conclude that they do not need to formally consult with the FWS and NOAA experts, and then shift the burden to the underfunded and understaffed scientists at FWS and NOAA to announce that more consultation is needed. On the other hand, reducing the volume of formal consultation has a benefit. By allowing more federal actions to fall within the scope of informal consultation, FWS and NOAA can spend their time and energies on the more significant projects, and the quality of the formal consultation process may improve.
Fourth, the merits of the regulations are mixed. In the past, federal agencies have not been required to engage in formal consultation for proposed federal actions having “no effect” or “not likely to adversely affect” species or critical habitat. Eliminating formal consultation for proposed federal actions that are “an insignificant contributor to any effects on a listed species or critical habitat” may actually make some sense, particularly if this language were defined to represent a “de minimus” standard. Similarly, it seems reasonable to eliminate formal consultation for proposed federal actions that are “wholly beneficial.” But the proposed regulations go much further, and introduce a whole series of what my law professors would have called “weasel words.”
Under the proposed regulations, Sec. 402.03(b), Federal agencies are not required to consult an action is "not anticipated to result in take” AND: … (3) The effects of such action on a listed species or critical habitat: (i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation; … or (iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.
The potential for mischief in the emphasized words above certainly exists. Assuming worst case scenarios, these words could enable federal action agencies to declare that they do not need to consult with FWS and NOAA. In other words, applying the “fox guarding the hen house” theory, the fox can claim: I don’t plan to eat any hens, but if I do, as long as I eat the feathers too, the effects of my eating one hen cannot be meaningfully detected, and any risks to the rest of the hens in the hen house are remote.
Fifth and finally, even if adopted, the regulations do not escape consequences. Even in a worst-case analysis, where the foxy federal agency project really does eat the poor endangered hen, without having undertaken the formal consultation process, there will be consequences. By eating the hen, the agency is responsible for an unauthorized take of a listed species, and thus, is subject to enforcement by FWS or NOAA, or to a citizen suit.
BOTTOM LINE: The regulations represent a policy decision: to what extent can we and should we tolerate an Endangered Species Act that increases discretion for the federal agencies, as long as the public retains the right to enforce the law and enjoin abuses? Perhaps some of the reaction to the proposed rules stems from the perceptions of the people announcing it, as opposed to the merits of the proposal?