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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Five cases, four federal publications, and twenty species: catching up on recent Endangered Species Act events | Main| Going deeper yet: BP's Deepwater Horizon disaster will have far-reaching effects on sea turtles, fisheries, and future ESA consultations. »

Going deep on the oil disaster: BP's Deepwater Horizon reveals need for improvements to Endangered Species Act implementation

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Earlier this week, the Obama Administration announced its re-evaluation of National Environmental Policy Act implementation practices related to oil and gas exploration.  See Council on Environmental Quality Federal Register Notice, 75 Fed. Reg. 29996 (Friday, May 28, 2010).  Our nation needs a similar review of Endangered Species Act implementation, which should include consideration of disasters in the consultation process.  

The director of the Minerals Management Service, an environmental lawyer, already resigned due to British Petroleum's (BP) disaster.  See Washington Post.  And surely, the Mineral Management  Service (MMS) deserves much of the blame for its woefully inadequate regulation and oversight of the oil industry.  But what happened to the Endangered Species Act during that process?  The law that the U.S. Supreme Court once famously wrote "admits of no exception" in TVA v. Hill obviously made exceptions for BP.

To the credit of its many committed professionals and scientists, the National Marine Fisheries Service (NMFS, also known as NOAA Fisheries), raised serious red flags about the MMS and the oil and gas exploration process in a September 2009 letter.  See highlighted version from New York Times, especially pages 10, 23-24.  Throughout the document, NMFS offered to provide Marine Spatial Planning information to assist in siting decisions.  They warned about risks to endangered species and coastal and coral habitats.   And, demonstrating well-founded foresight, NMFS emphasized the historic underestimation of oil spills and consequences.

In fact, for many years, the oil industry has broken down the Endangered Species Act consultation process into fragments to reduce the scope of the inquiry.  The Section 7 ESA Consultation Handbook -- a very important ESA implementation document developed by NMFS and the U.S. Fish & Wildlife Service -- actually allows this type of "segmented" consultation process for the oil and gas industry: "Incremental step consultation is most appropriate for long-term, multi-staged activities for which agency actions occur in discrete steps, such as the development of oil and gas resources on the Outer Continental Shelf."  But the Section 7 Consultation Handbook also noted the stern language of a significant Ninth Circuit opinion, Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988), where the court rejected a "segmented" consultation for an oil lease in a National Forest, holding that: "the FWS cannot ignore available biological information or fail to develop projections of oil and gas activities which may indicate potential conflicts between development and the preservation of protected species."

Indeed, the segmentation of consultation presented a significant challenge to NMFS when it attempted to evaluate the MMS plan for the Outer Continental Shelf (OCS) Oil and Gas Leasing Program for 2010-2015.  In that September 2009 letter, NMFS explained its concern: "It is unclear from the plan how MMS intends to engage NOAA in coordination regarding threatened and endangered species and marine mammals at the different stages in the leasing process. Under this section it appears that MMS does not intend to consult with NOAA under the authorities of the Endangered Species Act and the Marine Mammal Protection Act until the lease sale stage. MMS should clarify how coordination will occur so that effects of oil and gas development on listed species and marine mammals can be fully considered prior to any lease sale."

Ultimately, in the case of the Deepwater Horizon disaster, the segmented consultation process, and the ESA regulations, allowed BP to do exactly what the Ninth Circuit and NMFS wanted to avoid, and no one developed projections for the potential conflicts between oil development and species preservation.  These tensions were readily identifiable.  On the one hand, oil development is an economic necessity, and a total catastrophic failure, leading to an unplugged well at the bottom of the Gulf of Mexico, was a deemed to be a highly unlikely event (but not unimaginable, and yes, even foreseeable).  On the other hand, allowing the unlimited and unstopped flow of massive amounts of oil into the Gulf of Mexico unquestionably jeopardizes the continued existence of the endangered and threatened species in the Gulf of Mexico, so a way to plug the well is an absolute necessity, and probably should have been considered as part of any effort to ensure the survival and recovery of listed species.  Unfortunately, even if the tensions had been discussed between BP, MMS and NMFS, the ESA did not allow NMFS to do anything to regulate them.

Rather than requiring consideration of or consultation on a contingency plan for emergency management, the ESA limits its analysis to actions that are "reasonably certain to occur."  50 C.F.R. 402.02 (defining "effects of the action").  This clause, as the Section 7 Consultation Handbook explains, is a key factor in assessing and applying cumulative effects in biological opinions.  And that is where the ESA fails.  ESA implementation does not provides for consultation on disaster planning, nor does the ESA provide authority or guidance for minimizing and mitigating the effects of an action upon listed species in the event of a disaster.  Rather, the ESA regulations are entirely reactive, allowing for informal consultation only once the emergency actually occurs. 50 C.F.R. 402.05.

In litigation, some environmental advocacy groups have expressed similar concerns with the lack of foresight in the ESA consultation process.  For example, in Ground Zero Center for Non-Violent Action v. U.S. Department of the Navy, 383 F.3d 1082 (9th Cir. 2004), environmental groups argued that the Navy had failed to review the probable significant environmental impacts of an accidental explosion of a Trident II(D-5) missile during operations at its base in Bangor, Washington.  The environmental advocacy groups argued that the Navy failed to consult NMFS regarding the possible effects of such an explosion on threatened salmon species inhabiting the waters adjacent to the Bangor submarine base.  Ultimately, the court held that no ESA Section 7 consultation was required, in part, because the risks were remote.

Ground Zero, in its national security context, sounds like common sense.  If the nuclear weapons blow up, residents of Washington State will have much more than salmon to worry about.  But bad facts make bad law.  In other contexts, such as BP, some preventative planning would make sense.  Otherwise, the consequence of the "reasonably certain to occur" approach is that, if and when the unreasonable and uncertain disaster actually occurs, wildlife preservation and endangered species protection will certainly be a low priority.  Of course, it is entirely appropriate and necessary to put people and their property as a top priority, and to focus disaster funds and responses on those needs.  In fact, the ESA creates an express exemption from its requirements for "the repair or replacement of a public facility substantially as it existed" prior to a disaster.  ESA, Sec. 7(p).  But the BP disaster reveals a different problem.  

Even some small degree of advance planning, had it been required by the ESA, could have enabled much faster decision-making and response times for BP, the Federal Government, and for the endangered and threatened species in the Gulf.  Consider the timetable.  The tragic disaster occurred on April 20, and then:
  • on April 26, the Deepwater Horizon Unified Command decided to send submersible remote operated vehicles to the bottom of the Gulf;
  • on May 7, BP deployed a cofferdam (in the failed first effort to stop the flow) because BP had to wait for its manufacture;
  • on May 15, EPA approved subsea use of dispersants; and
  • on May 20, EPA directed BP to use a less toxic dispersant.

Weren't all of the items above self evident?  The oil rig was at the bottom of the ocean, so of course remote devises needed to be deployed.  Shouldn't a cofferdam (or at least a "top hat") have been constructed and ready from the first moment the drilling began, because how else did BP (or anyone else) expect to stop the flow?  Shouldn't dispersant analysis have been done before the disaster ever occurred?  Call it Monday morning quarterbacking, perhaps.  But isn't it tragic that, by failing to even consider the possibility of a disaster, everyone failed to minimize and mitigate for the impacts of this disaster in such obvious ways?  The reality is that none of these questions were even considered.  (In fact, under NEPA, the project also got an abbreviated review. See The Wildlife News.)  The law required the agencies to protect endangered and threatened species only to the extent that an event was "reasonably certain to occur," and BP's Deepwater Horizon disaster was never reasonably certain to occur.  

But it did occur.  And now it is reasonably certain that changes are needed.  

There's lots of blame to go around.  But as Congress holds its committee meetings, it should hold up a mirror, and reflect on the law it makes.  Two options include amending the ESA to prohibit segmented consultation for the oil industry, and to develop new procedures for contingency planning and disaster consultation when warranted by projects (like oil drilling) that present massive risks and threats for wildlife.  (If an exception is needed for national defense, as suggested by Ground Zero, then so be it.)  

Cessation of oil drilling is reasonably certain not to happen.  But helpful ESA reforms can and should be on the horizon.

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More than 600,000 gallons of chemical dispersants have been used in the Gulf of Mexico, and as shown by the photo from Youngstown-Warren Air Reserve Station above, military aircraft routinely train in dispersant application in the Gulf of Mexico.  The long-term effect of this remains unknown, but as this ESA musing suggests, the effects of massive amounts of dispersants could have -- and should have -- been considered before the disaster occurred.  For more information, read the article on dispersant use from BBC World Service.

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Thanks to Jotman.com for creatively rediscovering this one.  

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Keithinking: More to follow. The next ESA musing will discuss the potential consequences of the BP Deepwater Horizon disaster for future ESA consultations.