The Proposed ESA Consultation Regulations

In August, the Fish & Wildlife Service, along with the National Marine Fisheries Service ("the Services"), proposed a rule amending the Endangered Species Act consultation regulations. As one of several proposed changes to environmental regulations before the end of the Bush administration, this proposed rule seeks to redefine the circumstances in which federal agencies must consult with the Services to determine whether a proposed federal agency action would jeopardize threatened or endangered species. The proposal is, at least in part, an effort to limit the use of the Act as a vehicle for addressing climate change issues following the decision to list the polar bear in May (see here, here, here, and here). But its implications are farther reaching than simply responding to the novel ESA questions posed by climate change.

As documented in comments to the proposed rule (including this one from environmental law professors), the proposed rule may dramtically narrow the scope of consultation through (1) changes to which effects of an action may be considered and (2) exclusions of certain types of actions from consultation.

The proposal would raise the bar on demonstrating effects of an action on listed species by limiting the types of "indirect effects" that may be considered through both an enhanced causal requirement & a high "clear and substantial" informational threshold. In an area often fraught with significant scientific uncertainty and limited information, this bar is an unecessarily high one. Its impact may be to exclude a significant number of proposed federal actions from ESA consultation. The bar is unnecessarily, perhaps unlawfully, high because consultation is merely a process requiring the Services to engage in further analysis on whether imperiled species may face an increased extinction risk due to the proposed action. The process usually ends in the action going forward, but it may include changes to promote viability of a species.

The proposed rule would also exclude several situtations, such as those in which impacts are "not capable of being meaningfully identified or detected in a manner that permits evaluation," from consultation. In so doing, the Services propose to shift significant authority to the action agencies to develop information necessary to show that consultation is required . . . or to fail to develop that information. These action agencies are not the experts on species protection and, instead, often have a large stake in the proposed action. In an area where scientific uncertainty is commonplace, this apparently subtle shift could have singificant impacts on the actual protections afforded listed species.

Along with the effects and potential unlawfulness of the proposed rule (see this article on similar counterpart regulations), it is problematic because it is a transparent effort to entrench a decidely anti-environmental political agenda at the last minute. Not only did the Serivces severely restrict the time period for comments (initially 30 days), but the agencies then sought to review the roughly 200,000 non-form-letter comments it received in an average of seven minutes per comment! The most recent news on the proposal? The final rule is expected any day , akthough it is apparently going to be classified as a "minor" rule that will take effect in 30 (rather than 60) days, which probably explains why it was not released by November 21 as many anticipated. According to The Washington Post, a pre-release draft "goes further than the language . . . issued in August by explicitly excluding climate change from the factors that would trigger an interagency consultation." BNA's environmental reporter (subscription required) has a similar account.

Update: Final Rule Published 12/11.