Transcript Endangered Species Act: Recent Developments (Powerpoint)

ENDANGERED SPECIES ACT:
RECENT DEVELOPMENTS
Damien M. Schiff
Pacific Legal Foundation
Nuts and Bolts
• Endangered: “any species which is in danger of
extinction throughout all or a significant portion of
its range”
• Threatened: “any species which is likely to become
an endangered species within the foreseeable future
throughout all or a significant portion of its range”
• Species: “includes any subspecies of wildlife or
plants, and any distinct population segment of any
species of vertebrate fish or wildlife which
interbreeds when mature”
Nuts and Bolts, cont.
• Listing
• The present or threatened destruction, modification,
or curtailment of habitat or range
• Overutilization for commercial, recreational,
scientific, or educational purposes
• Disease or predation
• Inadequacy of existing regulatory mechanisms
• Other natural or manmade factors affecting the
species’s continued existence
Nuts and Bolts, cont.
• Critical habitat
• Specific areas within the geographical area occupied
by the species [at the time of listing] on which are
found those physical or biological features (I)
essential to the conservation of the species and (II)
which may require special management
consideration or protection.
• Specific areas outside the geographical area occupied
by the species [that] are essential for the
conservation of the species
Nuts and Bolts, cont.
• Consultation
• All federal agencies shall . . . utilize their authorities in
furtherance of the purposes of [the Act] by carrying
out programs for the conservation of endangered
species and threatened species
• Each Federal agency shall, in consultation with and
with the assistance of the Secretary, insure that any
action authorized, funded, or carried out by such
agency . . . is not likely to jeopardize the continued
existence of any [listed] species or result in the
destruction or adverse modification of [critical]
habitat
Nuts and Bolts, cont.
• Prohibition of “take”
• Means “to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture or collect, or to attempt to engage
in any such conduct”
• Generally, no person may take an endangered species
(N.B. most take protections have been extended to
threatened species by regulation)
• Exceptions for incidental take statements, 16 U.S.C.
1536(o) and habitat conservation plans, 16 U.S.C.
1540(a)(1)(B).
Listed species in Kansas
• Gray bat
• American burying beetle
• Whooping crane
• Neosho madtom
• Plover
• Arkansas River shiner
• Topeka shiner
• Spectaclecase mussel
• Pallid sturgeon
• Least tern
• Mead’s milkweed
• Western prairie fringed orchid
The ESA and Global Warming
Naturespicsonline.com (Alan D. Wilson)
Polar Bear Litigation
• What is the foreseeable future?
• Plaintiffs contend that climate science is too
uncertain to predict polar ice conditions 45 years
hence
• Feds say that climate science is good enough and that
45 years covers three polar bear generations
• Court rejects a “bright-line rule of foreseeability,”
upholds 45-year standard as based on “reasoned
judgment” relying on best available science; no need
to use a “more foreseeable” period
Polar Bear Litigation
• What is a reliable model?
• Plaintiffs argue that population models falsely correlate
1:1 of loss of sea ice to population decline, and are too
preliminary
• Feds argue that the listing doesn’t depend on just 2
models but on the entire record, and that Feds
acknowledged and accounted for models’ shortcomings
• Court okays models because no better model available,
their weaknesses were acknowledged, and they are
“rationally related” to the reality they seek to depict
• Query: should the plaintiffs use a “substantial evidence”
objection instead?
Polar Bear Litigation
•Is climate change science inherently
unreliable?
•Plaintiffs contend that climate science is
“inherently unpredictable”
•Feds argue that scientific certainty not
required
•Court holds that Feds can use “quite
inconclusive” science so long as best available;
“particular deference” owed to agency
decision-making based on scientific data
Polar Bear Litigation
• 4(d) Rule Challenge
• 16 U.S.C. 1533(d) authorizes exceptions to “take”
prohibition for threatened species
• Polar bear 4(d) rule exempted activities outside the
bear’s range
• Enviros upset because they could not challenge
greenhouse gas emitters in the lower 48 for alleged
takes
• Court overturns 4(d) rule on NEPA grounds only
Triggering Section 7 Consultation
• Predicate of “agency action”
• Can inaction be action?
• Karuk Tribe v. United States Forest Service (9th Cir. 2012): Service’s receipt of
a “notice of intent” and decision not to require a plan of operations
triggers Section 7 consultation
• Impacts: stormwater and nationwide permit NOIs under Clean Water Act
require Section 7 consultation?
• Nat’l Ass’n of Home Builders v. Defenders of Wildlife: no obligation to
consult if no discretion to act differently
• How much discretion?
• Natural Resources Defense Council v. Salazar (9th Cir. 2012): Renewal of
water Service contracts not discretionary
Recovery Plans & Delisting
• ESA Section 4(f) requires the development of a
recovery plan for each listed species
• Can a species be delisted where the recovery plan’s
goals have not been met?
• Friends of Blackwater v. Salazar
• The Service can delist the West Virginia northern
flying squirrel even though the 1990 recovery plan
criteria have not been met
• “A plan is a statement of intention, not a contract. If
the plan is overtaken by events, then there is no need
to change the plan; it may simply be irrelevant.”
“Significant Portion of its Range”
•Flat-tailed horned lizard: Service cannot
ignore threatened portions of the range simply
because persistence is likely in other portions
•Utah prairie dog: loss of historical range
cannot be ignored
•Gray wolf: if a species is listable in a significant
portion of its range, it must be listed
everywhere (Solicitor General opinion
rejected)
Draft SPR Policy
•If a species is listed based on its status in a
significant portion of its range, the species
wherever found will be protected
•A portion of range is “significant” if its
contribution to the viability of the species is so
important that, without that portion, the
species would be in danger of extinction
•Preference for DPS listing rather than listing
throughout the range
Exclusions to Critical Habitat
•Section 4(b)(2) requires the Service to take
into account the economic impact of
designating critical habitat
•Section 4(b)(2) also authorizes exclusions if
the benefits of exclusion exceeds the benefits
of inclusion
Proposed 4(b)(2) Policy
•Economic analysis released in conjunction with
proposed critical habitat
•Economic impact would be assessed using the
incremental, not baseline, approach (in
conflict with the Tenth Circuit’s decision in New
Mexico Cattle Growers)
•The Service is not required to conduct an
exclusion analysis, or exclude any given area
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