For other versions of this document, see http://wikileaks.org/wiki/CRS-RL34641 ------------------------------------------------------------------------------ ¡ ¢ ¢ ¢ ¢ Prepared for Members and Committees of Congress ¢ The Endangered Species Act (ESA) requires all federal agencies to consult with either the Fish and Wildlife Service or the National Marine Fisheries Service (the Services) to determine whether their actions may jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat of listed species. In August 2008, FWS and NMFS proposed changes to the regulations that address the consultation process. Final regulations were published December 16, 2008, and took effect on January 15, 2009. The revisions are intended to do three things, according to the Services: clarify when consultation is applicable; clarify certain definitions; and establish time frames for consultation. The Services argue that the new regulations show the ESA does not require consultation on greenhouse gas emissions' contribution to global warming and its associated impacts on listed species. The regulations give federal agencies greater discretion to determine when and how their actions may affect listed species. They also address issues of causation--when an agency action truly affects the well-being of listed species or critical habitat. The changes modify definitions and alter the process for consultations. The definitions that are modified include cumulative effects, effects of an action, and biological assessment. The changes add criteria for determining when consultations do not apply. The Action Agency continues to determine whether consultation is required. The processes for formal and informal consultations were revised to include a 60-day deadline (which may be increased to 120 days) for the appropriate Service to concur in writing with an Action Agency's finding during informal consultation. If the Service fails to respond in writing, the project could continue without further consultation at the discretion of the Action Agency. Introduction and Background into the Section 7 Consultation Process .......................................... 1 The Regulations, Generally............................................................................................................. 1 Revised Regulations ........................................................................................................................ 3 Amended Definition of Biological Assessment (§ 402.02)....................................................... 4 Amended Definition of Cumulative Effects (§ 402.02) ............................................................ 4 Amended Definition of Effects of the Action (§ 402.02).......................................................... 5 Changed Criteria for When a Consultation Is Not Applicable (§ 402.03) ................................ 7 The Action Has No Effect on a Listed Species or Critical Habitat (§ 402.03(b)(1)) .........11 The Action Is Manifested Only Through Global Processes (§ 402.03(b)(2))....................11 The Effects Are Not Capable of Being Meaningfully Identified or Detected (§ 402.03(b)(3)(i)).............................................................................................................. 13 The Action is Wholly Beneficial (§ 402.03(b)(3)(ii))....................................................... 13 Consultation for Only Some Effects of an Action (§ 402.03(c)) ...................................... 13 Informal Consultation (§ 402.13)............................................................................................ 14 Formal Consultation (§ 402.14) .............................................................................................. 16 Climate Change and the Changed Regulations ............................................................................. 16 Table 1. Comparison of Previous Regulations to Revised Regulations ....................................... 19 Table A-1. Number of Projects Reviewed by NMFS that Did Not Meet Specified Criteria......... 24 Table A-2. Number of Projects Reviewed by FWS that Did Not Meet Specified Criteria .......... 25 Table A-3. Total Number of Criteria Missed, by Project for FWS Species.................................. 25 ¡ Appendix A. Internal Consultation: The National Fire Plan (NFP) of the Healthy Forests Initiative ..................................................................................................................................... 23 Appendix B. Deadlines: The Desert Rock Energy Project............................................................ 26 Author Contact Information .......................................................................................................... 27 The purpose of the Endangered Species Act (ESA) (16 U.S.C. §§ 1531 et seq.) is threefold: to provide a means to conserve ecosystems upon which endangered and threatened species depend; to provide a program to protect those species; and to take steps to achieve the purposes of related treaties and conventions.1 Section 7 of the ESA requires all federal agencies to carry out programs for the conservation of endangered and threatened species in furtherance of those purposes.2 The statute says that the federal agencies "shall" work toward those goals "in consultation with and with the assistance of" the two agencies that supervise the ESA program: the Fish and Wildlife Service (FWS) of the Department of the Interior, and the National Marine Fisheries Service (NMFS) of the Department of Commerce (together: the Services). The ESA prohibits taking endangered wildlife species, defining take as: harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.3 The purpose of the Section 7 consultation is to make sure that federal agencies (known as Action Agencies) avoid jeopardizing listed species or adversely modifying their designated critical habitat. If a federal agency action causes some unavoidable taking incidental to an otherwise lawful purpose, the ESA allows the Services to issue an Incidental Take Statement to the Action Agency, meaning the harm will not be prosecuted. The Action Agency must also minimize the effects of the taking. Acting without a Section 7 consultation leaves a federal agency at risk of violating the ESA because it would not have the Incidental Take Statement excusing its conduct. Section 7 also prohibits a federal agency from making "irreversible or irretrievable commitment of resources" that would prevent the effectiveness of any alternative measures suggested by the Service.4 ¢ A comparison of the versions of the regulations is in Table 1 at the end of this report. While not stated in the statute, as a practical matter not every federal action requires consultation. It has long been within the discretion of the Action Agencies to determine whether a proposed action requires consultation. This option was provided in the regulations of 1986.5 The 1986 regulations (in place until the 2009 revision) established informal and formal consultation procedures. When an Action Agency realizes its project may affect a listed species or critical habitat, it must consult with the Service.6 This decision must be made "at the earliest possible 1 16 U.S.C. § 1531(b). 2 16 U.S.C. § 1536(a)(1). "Section 7" refers to where the consultation requirement appears in the public law establishing the Endangered Species Act, P.L. 93-205. The citations in this report will refer to the codified version of that law. 3 16 U.S.C. § 1532(19). 4 16 U.S.C. § 1536(d). 5 50 C.F.R. part 402. 6 See NRDC v. Houston, 146 F.3d 1118, 1125 (9th Cir. 1998). time."7 If the action may affect critical habitat or species, then the Action Agency will submit an "initiation package" described in 50 C.F.R. § 402.14(c). This information must be based on the best scientific and commercial data available.8 The initiation package starts the formal consultation process. A consultation is an ongoing conversation between the Action Agency and the Service biologists.9 A few phone calls may suffice to reassure the Action Agency that there are no listed species in the action area, or if there are, that they will not be affected. FWS or NMFS may ask for relatively minor amounts of additional written documentation and then conclude (still fairly quickly) that neither jeopardy to the species nor adverse modification of its habitat will occur. Alternatively, the Services may conclude that more information is needed and ask the agency to carry out a biological assessment (BA) for formal consultation. This process may proceed in days, weeks, or sometimes months.10 There was no deadline for the Service to respond to a request for concurrence in the previous regulations. The statute requires the Services to respond to a consultation initiation within 90 days or on a mutually agreed upon date.11 The Services mark initiation of the consultation from when the Service receives a complete BA, i.e., one that has sufficient information to assess the effects of the proposed action. The Action Agencies' perception of when formal consultation begins is often earlier, and likely a source of the frustration noted below. For those agencies that consult regularly (e.g., Forest Service, Bureau of Land Management, Environmental Protection Agency), consultation is a well-trodden path. But for others, consultation may be an extremely rare event and difficult for the Action Agency to manage. Repeated requests for additional data have lead to great frustration among Action Agencies and the non-federal parties relying on them for permits, loans, sales, licenses, etc. Some see consultation as needless delay of weeks, months, or even a year or more, even if the result of the consultation is a "no jeopardy" biological opinion (BiOp), which finds the action will not jeopardize the species nor adversely modify designated critical habitat. According to the Services, the workload associated with consultations has grown since 1996, with FWS reporting double the consultations.12 The FWS reports that in 2006, there were 39,346 requests for technical assistance, 26,762 requests for informal consultations, and 1,936 requests for formal consultations.13 7 50 C.F.R. § 402.14. 8 50 C.F.R. § 402.14(d). 9 For a detailed discussion of consultation practices, see Consultation Handbook, cited above. 10 The authors are not aware of any comprehensive studies examining the duration of typical formal and informal consultations. 11 16 U.S.C. § 1536(b). 12 72 Fed. Reg. 76272, 76280 (Dec. 16, 2008). According to the same notice, NMFS did not have data for the number of consultations. 13 Id. On August 15, 2008, the Services issued proposed revisions to the Section 7 consultation regulations.14 A draft environmental assessment was prepared under the National Environmental Policy Act, finding that the changes would not have a significant impact on the environment.15 The final version was published December 16, 2008, and took effect January 15, 2009.16 A lawsuit was filed to set aside the changed regulations, claiming they violated federal law.17 The regulations revise the consultation process by: (1) allowing already prepared documents to be used as a BA; (2) allowing Action Agencies greater discretion to determine whether consultation applies; (3) clarifying certain definitions; and (4) making procedural changes to informal consultations.18 A stated goal of the revised regulations relates to climate change. The Services said that the modifications would "reinforce the Services' current view that there is no requirement to consult on [greenhouse gas] emissions' contribution to global warming and its associated impacts on listed species."19 Some believe that the ESA is not the appropriate statutory vehicle for regulating greenhouse gas emissions, as it was not implemented to analyze air quality. Others note that the ESA has no exceptions for types of projects, and therefore, regulations cannot create one. Still others suggest that the existing causation requirements linking an agency action to a particular harm already limit the ESA's use as a tool in regulating global warming. The suit against the changes argues that the revisions will not achieve these goals: contrary to the Services' characterization, the proposed changes would severely limit the kinds of direct, indirect, and cumulative effects that must be addressed in section 7 consultations, and would also result in a plethora of actions harmful to listed species proceeding without the Services' input or involvement merely because the Services lacked adequate time or resources to respond within the mandatory time frames imposed by the regulations.20 Six substantive changes were made to the regulations. The alterations included the following: · changing the definition of biological assessment;21 · changing the definition of cumulative effects;22 14 73 Fed. Reg. 76272 (Dec. 16, 2008). 15 73 Fed. Reg. 63667 (Oct. 27, 2008). The final EA was announced with the final regulations. 73 Fed. Reg. at 76272. 16 Comments were originally due within 30 days, but that was extended to 60 days. 73 Fed. Reg. 52942, 52943 (Sept. 12, 2008). Although no specific number of comments was given in the final notice, as usually is done, reportedly over 200,000 comments were received. See, e.g. Erika Dimmler, Environmentalist Blast Changes to Endangered Species Rules, CNN.com (Dec. 12, 2008). 17 Center for Biological Diversity v. Kempthorne, No. CV-08-5546 (N.D. Cal. filed Dec. 11, 2008). The Center for Biological Diversity, Greenpeace, and Defenders of Wildlife were plaintiffs. The State of California joined the suit as a plaintiff. 18 73 Fed. Reg. at 47869. 19 73 Fed. Reg. at 47872. 20 Center for Biological Diversity v. Kempthorne, No. CV-08-5546, at 17-18 (N.D. Cal. filed Dec. 11, 2008). 21 50 C.F.R. § 402.02. · changing the definition of effects of the action;23 · changing when a consultation is needed;24 · changing the procedure for informal consultation;25 and · changing the procedure for formal consultation.26 The final version altered the criteria for when a consultation is needed, but otherwise made no significant changes to the proposed version. The change to the definition of BA added two sentences to allow other documents to serve as a formal BA, with a stated goal of promoting efficiency. See Table 1. Action Agencies would not have to create a special document when that information was already available in another form, although the Action Agency would have to indicate where the relevant material appeared if another document were used. This appears consistent with the statute, which already allows the BA to be part of a review under the National Environmental Policy Act (NEPA).27 Additionally, the former regulations already provided that the contents of a BA were at the discretion of the Action Agency.28 Therefore, this addition appears to have little legal or policy impact on the operation of the consultation process. The revised regulations added a sentence to the existing definition of cumulative effects. See Table 1. The 1986 regulations defined cumulative effects as "those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area." The amendment added this sentence: "Cumulative effects do not include future Federal activities that are physically located within the action area of the particular Federal action under consultation." The concept of cumulative effects was created by regulation, not by statute. In 1986, when this regulation was established, the Service justified using the term by saying that since federal agencies were required to investigate environmental impacts of a proposed action in compliance with NEPA, and NEPA required a cumulative effects analysis, it was already the Action Agency's (...continued) 22 50 C.F.R. § 402.02. 23 50 C.F.R. § 402.02. 24 50 C.F.R. § 402.03. 25 50 C.F.R. § 402.13. 26 50 C.F.R. § 402.14. 27 42 U.S.C. §§ 4321 et seq. See Wilderness Society v. Wisely, 524 F. Supp. 2d 1285, 1303 (D. Colo. 2007) (holding that an environmental assessment under NEPA sufficed to provide the Service with adequate information about listed species). 28 50 C.F.R. § 402.12(f) (listing five areas that may be considered for inclusion). "responsibility to develop this information."29 In proposing the 1986 regulations, the Services stated that the context of cumulative effects under NEPA is broader than that under the ESA, noting that the ESA does not require consideration of future federal actions.30 Action Agencies are required to consider cumulative effects in their BAs,31 and to provide a written analysis of cumulative effects in the request for formal consultation.32 The Services are also required to consider cumulative effects. During formal consultation, a Service must review cumulative effects,33 and its BiOp must be based on whether the action, together with cumulative effects of the action, will jeopardize a species or adversely modify critical habitat.34 It is not clear what the language added to the definition provides. The added language reiterates that federal activities are not a factor in cumulative effects, "cumulative effects do not include future Federal activities," and refines the definition only to state that the effects do not include federal activities "physically located" within the action area.35 Since federal activities are already excluded, it is not clear why it is necessary to say federal activities that are physically located near the project are also excluded. The concept of cumulative effects is clearer when read together with the regulation addressing effects of the action. While a cumulative effects analysis excludes federal actions, the definition of effects of the action requires Action Agencies and the Services to consider the "past and present impacts" of federal actions and the "anticipated impacts of all proposed federal projects in the action area" that have already undergone consultation.36 See Table 1. Note that neither term requires consideration of future federal actions. The Action Agencies and the Services must consider the "effects of an action" during the consultation process. The regulations require the Action Agency to discuss the effects of an action as part of its BA.37 The Service must include a detailed discussion of the effects of an action in its BiOp.38 The revised regulation modifies a term nested within the definition of effects of an action, indirect effects. Indirect effects are included within the regulation in response to a Fifth Circuit court case 29 51 Fed. Reg. 19926, 19932 (June 3, 1986). 30 73 Fed. Reg. 47868, 47869 (August 15, 2008). NEPA does not use cumulative effects, but instead uses cumulative impact, which is defined by the Council on Environmental Quality as follows: "the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time." 40 C.F.R. § 1508.7. 31 50 C.F.R. § 402.12(f)(4) 32 50 C.F.R. § 402.14(c)(4). 33 50 C.F.R. § 402.14(g)(3). 34 50 C.F.R. § 402.14(g)(4). 35 73 Fed. Reg. at 47874 (August 15, 2008). 36 50 C.F.R. § 402.02. 37 50 C.F.R. § 402.12(f)(4). 38 50 C.F.R. § 402.14(h)(2). requiring the Action Agency to consider indirect effects during consultation.39 When the regulation was being drafted in 1986, the Services refused to narrow the definition to omit these effects, stating "the Service declines to narrow the scope of its review (as requested by one commenter) in light of existing case law."40 The revised regulation has two changes to the definition of indirect effects, altered only slightly between the proposed and the final versions. The Services stated that these changes would "simplify the consultation process and make it less burdensome and time-consuming."41 The first change requires the proposed action to be an essential cause of those indirect effects. According to the Services, an essential cause is a cause that is necessary for that effect to occur.42 The regulation continues: "If an effect will occur whether or not the action takes place, the action is not an essential cause of the indirect effect." This suggests that when multiple stressors affect a species, an Action Agency might not have to consider what harm an action was doing to a species, if other harms were just as severe, or if the same consequences would occur without the action. A similar interpretation of effects of the action was rejected by at least one federal court. Specifically, the Ninth Circuit rejected an argument that an agency action would not jeopardize a species because the species was in jeopardy already: "even where baseline conditions already jeopardize a species, an agency may not take action that deepens the jeopardy by causing additional harm."43 Inclusion of essential cause seems to take the position rejected by the court by saying that if a species is already in jeopardy, an agency action that adds to that harm is not an essential part of the effect of the action. This appears contradictory to the fundamental purpose of the ESA: to conserve threatened and endangered species. The act does more than require agencies to avoid jeopardizing listed species: they have an affirmative responsibility to conserve species.44 According to the U.S. Supreme Court, federal agencies have the obligation "to afford first priority to the declared national policy of saving endangered species" (emphasis added).45 The second change to indirect effects requires that "reasonably certain to occur" must be based on "clear and substantial information." This is appears to be a new legal standard, not used in other statutes. It is not the standard of information used throughout the ESA statute and regulations, which instead use "the best scientific and commercial data available," a standard with significant judicial analysis to define it. Species become threatened, endangered, or extinct for a variety of reasons. Habitat loss or degradation is the most commonly cited cause, but is rarely the sole cause. Moreover, habitat may be lost in combination with many threats: both foraging habitat and competition from invasive species (e.g., in the case of the spotted owl); both foraging habitat and bioaccumulation of toxins 39 National Wildlife Federation v. Coleman, 529 F.2d 359, 373-74 (5th Cir. 1976) (the fact that the Federal Highway Administration did not control private development that would result following construction of its highway did not relieve the agency of its responsibility under Section 7 of the ESA), cert. denied, 429 U.S. 979 (1976). 40 51 Fed. Reg. at 19932 (June 3, 1986). 41 73 Fed. Reg. at 47870 (August 15, 2008). 42 Id. 43 National Wildlife Federation v. National Marine Fisheries Service, 524 F.3d 917, 930 (9th Cir. 2008). 44 16 U.S.C. § 1536(a)(1). 45 Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978). (e.g., in the case of polar bears); and both excessive incidental take and loss of nesting habitat (e.g., in the case of sea turtles). In these three examples, any one of the threats, if left uncontrolled, might be sufficient to jeopardize the continued existence of the species and ultimately lead to its extinction. Would an action that exacerbates just one threat and not another be eliminated from considerations of the effects of the action in both the BA and the BiOp? The changes appear to permit this outcome. Specifically, the revised rule states that if the action has "an effect [that] will occur whether or not the action takes place, the action is not an essential cause of the indirect effect."46 In practice, it may be extremely difficult for the Services to determine whether an effect will occur regardless of an agency action. The changed definition of effects of the action might take some actions and their effects off the consultation table when a species faces multiple severe threats as the following examples illustrate: Is a lower basin of a watershed going to receive less water for endangered fish because of an upstream dam--or also because of increasing frequency of drought? Will mountaintop species suffer population reductions due to global warming, and therefore the effects of upwind power plants can be ignored? Under previous regulations, a Section 7 consultation was required for "all actions in which there is discretionary Federal involvement or control."47 The consultation requirement had been interpreted to apply only to those actions that may affect a listed species or critical habitat. At the time of its promulgation in 1986, the discussion about the previous version of Section 402.03 centered on what was meant by actions, and since then, the focus has been on the term discretionary.48 The revised regulations changed this section significantly. See Table 1. The changes added a number of ways in which an Action Agency could decide that consultation did not apply. This section had the most changes between the proposed and the final versions. Under the changed version, Subsection (b) lists a number of criteria; if any one of the criteria is met, an agency does not have to consult. These criteria do not indicate what administrative record will memorialize the application of these criteria. Presumably, these would be final agency actions, subject to review under the Administrative Procedure Act (APA), but the revised regulations provide scant information on how the decisions will be made or recorded. Additionally, the Action Agencies appear free to make these determinations without relying on any standard--not the "best available scientific or commercial data available," as is used throughout the statute and regulations, nor "clear and substantial information," a new standard created in part of these changes. 46 50 C.F.R. § 402.02. 47 50 C.F.R. § 402.03. 48 See National Association of Home Builders, Inc. v. Defenders of Wildlife, 127 S. Ct. 2518 (2007) (holding that where a statute imposes strict guidelines on when a federal agency must act, the ESA does not apply as an additional requirement because the action is not discretionary). Under Subsection (b), no consultation is needed "when the direct and indirect effects of that action are not anticipated to result in take."49 The addition of take as a criterion for when a consultation is required appears to be a significant change. The previous standards for consultation turned on questions of jeopardizing the continued existence of a listed species and modifying its critical habitat. That review considered effects that could be at a species or landscape level, and applied equally to plants and animals. Take, on the other hand, is a more immediate action, focusing on individual organisms, and taking of plants is not prohibited.50 The result could be that projects that are unlikely to result in killing an animal, but might have more marginal effects (small decrease in the number of eggs laid, lower availability of spawning, degraded habitat, etc.) might escape the need for consultation, even if the long-term effects of the action might eventually result in jeopardy. The take requirement might reduce the number of consultations. The additional criteria also seem targeted at eliminating consultations. Those criteria are: · The action has no effect on a listed species or critical habitat;51 · The effects of an action are manifested in global processes and cannot be reliably predicted or measured at the local scale;52 · The effects of an action are manifested in global processes and would result in only an extremely small, insignificant local impact;53 · The effects of an action are manifested in global processes and pose a remote potential risk of harm to species or habitat;54 · The effects of an action are not capable of being meaningfully identified or detected in a manner that permits evaluation;55 or · The effects of an action are wholly beneficial.56 If the Action Agency determines that any one of these criteria apply, consultation with the Services in not required. ¢ Generally speaking, courts have not allowed regulations that eliminate the Services' role in ensuring that an agency action will not jeopardize a listed species or adversely modify its critical habitat. In a case in which regulations had been issued by the Services to allow the Environmental 49 50 C.F.R. § 402.03(b). 50 Under the ESA, take is not a prohibited act when the species is a plant. 16 U.S.C. § 1538(a)(2). 51 50 C.F.R. § 402.03(b)(1). 52 50 C.F.R. § 402.03(b)(2)(i). 53 50 C.F.R. § 402.03(b)(2)(ii). 54 50 C.F.R. § 402.03(b)(2)(iii). 55 50 C.F.R. § 402.03(b)(3)(i). 56 50 C.F.R. § 402.03(b)(3)(ii). Protection Agency (EPA) to decide whether to initiate consultation when licensing pesticides, a federal district court found that the regulations amounted to the Services' abdicating their role in consulting to reach the jeopardy decision.57 The regulations in that case would have allowed EPA to determine that its own action was not likely to adversely affect (NLAA) a species and end the Section 7 process there. The court found the regulation flawed: "A unilaterally-made NLAA determination cannot be converted into a section 7(a)(2) finding of `not likely to jeopardize' without `consultation' with the relevant Service."58 On the other hand, a different federal court found the regulations for the National Fire Plan were not contrary to the ESA because the Services still played an oversight role. In that case, the regulations allowed agency personnel to make NLAA determinations without a concurrence decision by a Service. The court held that the additional procedures in which the Services would monitor the program and train the personnel making the determinations adequately served the Section 7 consultation mandates.59 The National Fire Plan is discussed in Appendix A, below. In practice Action Agencies decide when to consult. However, the changed regulations could be seen as giving more discretion to the agencies and posing the risk of putting the jeopardy evaluation into the hands of the Action Agency without input from the Services. As the statute makes clear, the jeopardy decision is required to be a result of the consultation, and not to precede it. On the other hand, it is difficult to see the conservation purpose in requiring consultations that have no effects on species or have wholly beneficial ones. Ultimately, however, it is the Action Agency that decides whether to consult, so any consultation is due to initiation of the process by the Action Agency. The changes would provide a clearer regulatory justification for when they choose not to consult. According to the Federal Register notice of the final version, many commenters asserted the Services cannot allow action agencies to make applicability determinations as set out in the rule. That is, they asserted that action agencies cannot decide, without formal or informal consultation with the Services, that their action has no effect or is essentially not likely to adversely affect listed species or critical habitat.60 The Services addressed comments challenging the revisions to Section 402.3 in two ways. First, the Services noted that the statute did not define "consultation" or "assistance." Second, the Services asserted that "shall" in the statute at 16 U.S.C. § 1536(a)(2) did not modify consultation and assistance, but modified the portion of the sentence addressing jeopardy of the species and protection of habitat. Section 1536(a)(2) says, in relevant part: 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 endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.... The Services' first assertion appears to defy the plain meaning of the two words the Services (correctly) note are undefined in the statute. The Services said "these terms are quite broad and 57 Washington Toxics Coalition v. U.S. Department of the Interior, 457 F. Supp. 2d 1158 (W.D. Wash. 2006). 58 Washington Toxics Coalition, at 1179. 59 Defenders of Wildlife v. Kempthorne, 2006 WL 2844232 (D.D.C. September 29, 2006). 60 73 Fed. Reg. at 76279. suggest that Congress has provided a great deal of discretion to define consultation and assistance in this provision."61 While Congress may have provided discretion to define how these terms are applied, as a basic premise of statutory interpretation, in the absence of a definition the ordinary meaning will prevail.62 In this case, under their common meanings neither consultation nor assistance can be defined as a unilateral action. Both require interaction with another party. That other party is established by the ESA as one of the Services. The second assertion is that "shall" does not pertain the phrase directly following it--"in consultation with and with the assistance of the Secretary." The Services said "we believe the mandatory term `shall' in section 7(a)(2) refers to the obligation of the action agency to avoid jeopardy or destruction or adverse modification of critical habitat, not to a requirement to consult on each and every action."63 The Services' new interpretation would mean that the statute requires Action Agencies to ensure their actions do not jeopardize species or harm critical habitat, but that the consultation and assistance section is optional. To a certain extent, this is the way Section 7 consultations have been conducted--that Action Agencies do not consult on apparently ecologically trivial actions with no effect on a species or habitat. However, many commenters expressed concern that the revised regulations go too far in excusing consultations. The Services also refer to a D.C. district court decision as support of their argument that Action Agencies may opt out of consultations in certain circumstances. The Services refer to Defenders of Wildlife v. Kempthorne,64 saying that the court rejected a broad interpretation of Section 7 requiring Action Agencies to consult on each and every action. This may be an overly broad interpretation of that holding. While the court did not require consultations on every action, the court stated that if there were a "possibility" of an effect on a species or habitat, the Action Agency must proceed to informal consultation.65 Consultations were not required only if there were no effect: Congress intended to allow Action Agencies to initially evaluate the potential environmental consequences of federal actions and to move forward on many of them without first consulting the Services if they concluded that they had `no effect' on listed species and their critical habitat.66 It is not clear whether the court would consider "small," "insignificant," "remote," or "local" impacts (the language within revised Section 402.3(b)(2)) the same as no effect, or more similar to the possibility of an effect, and thus requiring informal consultation. 61 73 Fed. Reg. at 76279. 62 See, e.g., Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (defining marketing); Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 476 (1994) (defining cognizable); Mallard v. United States, 490 U.S. 296, 301 (1989) (defining request). 63 73 Fed. Reg. at 76279. 64 2006 U.S. Dist. LEXIS 71137 (D.D.C. Sept. 29, 2006). The same decision states that the duty to insure that harm does not occur is done "in `consultation' with the Services," suggesting a mandatory role for the Services. Id. at 8. 65 2006 U.S. Dist. LEXIS 71137, *9 (D.D.C. Sept. 29, 2006). 66 2006 U.S. Dist. LEXIS 71137, *60 (D.D.C. Sept. 29, 2006). The first subpart of (b) of the revised regulation allows the Action Agency to decide that its action has no effect on a listed species or designated critical habitat without any consultation. This has the practical effect of eliminating consultations where species will not be impacted, which seems consistent with the goal of the statute and is likely to promote efficiency for that reason. There has always been a tension between the plain language of Section 7 and its practical application. Section 7(a)(2) requires Action Agencies to ensure that any action is not likely to jeopardize protected species or adversely affect their critical habitats. Logic dictates that not all actions--ordering office supplies, for example--require consultation. The statute requires agencies to determine that their actions will not commit the harm described with the "assistance of the Secretary" and "in consultation with" the Secretary. However, the Consultation Handbook of the Services provides that if an Action Agency determines that its action will have no effect on a species, it does not need to initiate consultation.67 On the other hand, by allowing an Action Agency to decide initially that its project will have no effect, the regulations read more like NEPA, which requires agencies to act if a project would have significant impacts on the environment.68 That may be a more realistic approach to consultations, but it is arguably outside the Services' authority to create such a regulatory scheme. ¢ This factor appears to address the Services' intent to separate climate change issues from the ESA, although the regulations do not expressly refer to climate change. The final version of Subsection (b)(2) is different from the proposed version in several ways. Under the proposed version, consultation would not have been required if the action were "an insignificant contributor to any effects on a listed species or critical habitat." That language is completely eliminated from the final version. Instead, the final version refers to global processes, which is not defined in the regulations. In the notice of the final version, the Services suggested that global processes could be synonymous with climate change: "The most topical example of effects that would be manifested only through a global process is the effects of individual sources of greenhouse gas emissions and their contribution to global climate change and warming."69 The revised regulations state that if effects of an agency action are evidenced only by global processes and one of three conditions occur, consultation does not apply to that action. The regulations state that consultation is not necessary if those effects: · cannot be reliably predicted or measured at the local scale, or · would result in an extremely small, insignificant local impact, or · have a remote potential risk of harm to species or habitat.70 67 FWS and NMFS, Final ESA Section 7 Consultation Handbook, pp. 3-12 (March 1998) (hereinafter Consultation Handbook). 68 42 U.S.C. § 4322(c) requires a detailed statement for "major Federal actions significantly affecting the quality of the human environment." 69 73 Fed. Reg. at 76282. 70 36 C.F.R. §§ 402.3(b)(2)(i) ­ (iii). The Services indicate that the addition of "global processes" is an attempt to limit the application of Section 402.3(b).71 Because this change is more than mere semantics, this final version is exposed to the claim that it lacked public notice and comment. While final regulations are expected to have some changes from the draft version--notably, improvements based on comments--the final rule must be "the logical outgrowth of the proposed rule."72 If a change is so different from the draft it is considered unforeseeable, a court could find the change violated the APA requirements of giving the public notice and the opportunity to comment on regulatory changes.73 This subsection appears to require certain analyses to occur before consultation is determined to apply. This appears in the requirement that an Action Agency should evaluate the effects of an action to decide whether a consultation is applicable. Based on the definition of effects of an action, this evaluation requires an agency to consider an environmental baseline and indirect and direct effects of its proposed action, and forms a significant portion of the consultation review. Before the regulatory changes, that evaluation would have occurred during a consultation as part of a BA and a BiOp. Section 402.03(b) brings that phrase into a different part of the Section 7 process. If the revised regulation is taken at face value, the effects of an action would have to be scrutinized in the context of global processes. This means the new regulations would require Action Agencies to perform much of the work of a consultation before even determining one was required. Another potential result of the final version is that more actions could advance to consultation than under the proposed version. The Services indicated that the revision was designed to create a "very narrow" exception to consultation.74 Under the proposed version, which rejected consultations when effects were insignificant contributors to an effect on a species, it would have been difficult to argue that a single Title V permit issued under the Clean Air Act was responsible for the global warming that put endangered coral at risk. However, under the final version, it is possible to argue that the effects of the permitting process are manifested through global processes and are predictable at a local level. Warmer oceans mean weaker coral. However, the Services argue that the effects must be considered only for those global processes produced by the one action, and that the result of one power plant's emissions cannot be measured at the local scale.75 A second way in which the final version appears to advance more actions to consultation than would have occurred under the draft is under Subsection (b)(2)(iii). The proposed version read that if the effects of an action on listed species or critical habitat were "such that potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote" no consultation was required. The Services revised this due to public comment. The final version reads that if the effects are manifested only through global processes and "are such that the potential risk of harm to species or habitat is remote" then no consultation is required.76 The 71 73 Fed. Reg. at 76279. 72 NRDC v. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002). 73 See, e.g., Citizens for Better Forestry v. U.S. Dept. of Agriculture, 481 F. Supp. 2d 1059 (N.D. Cal. 2007) (rejecting a final rule because it was a paradigm shift from the draft rule). 74 73 Fed. Reg. at 76282. 75 73 Fed. Reg. 76282. 76 The Services indicated that this change is also intended to limit consultations for projects with greenhouse gas emissions. 73 Fed. Reg. at 47872. distinction is between jeopardizing a listed species versus harming a listed species, and adversely modifying or destroying critical habitat versus harming habitat. These terms have precise meaning in ESA practice. Jeopardizing a species means the action is likely to cause the species to become extinct.77 Harming a species, on the other hand, suggests injuring or killing a specific creature.78 The same disparity occurs regarding habitat, in that destroying critical habitat is not as severe as harming habitat, especially when this appears to apply to all habitat, and not merely that area specifically designated as critical. Accordingly, the final version may require consultation for less harmful actions than the proposed version, thereby increasing the number of consultations. ¢ This amendment also appears intended to limit climate change challenges based on the ESA by requiring an identifiable link between the agency's action and the specific harm. No consultation is required if the effects of the action "are not capable of being meaningfully identified or detected in a manner that permits evaluation." This determination is made by the Action Agency before the consultation process starts, and it is not clear what scientific standards will be used to make this determination. According to the Services, the Consultation Handbook indicates "best judgment" will be used.79 Because Section 402.03(b) clearly addresses both direct and indirect effects, it may be presumed that the reference to effects means both. This suggests that the Action Agency would perform some form of an effects analysis prior to deciding whether a consultation is required. ¢ This revision allows an Action Agency to decide consultation is not necessary if the action would be wholly beneficial to the species. It would promote efficiency in the Section 7 process by eliminating unnecessary consultations. A similar provision is in the Consultation Handbook, but there the decision is made only after production of a BA or other similar document.80 The revision appears to eliminate the Services' oversight under a strict reading of the statute, but when taken in light of the purposes of the statute, appears consistent with the ESA's goals. ¢ The above factors from Subsection (b) are linked by an "or", suggesting that any one of them could be the basis for an Action Agency not to initiate consultation. Subsection (c) discusses what happens if some of the Subsection (b) criteria apply and some do not: If all of the effects of an action fall within paragraph (b) of this section, then no consultation is required for the action. If one or more but not all of the effects of an action fall within paragraph (b) of this section, then consultation is required only for those effects of the action that do not fall within paragraph (b). 77 50 C.F.R. § 402.02. 78 50 C.F.R. § 17.3. 79 73 Fed. Reg. at 76283 (the Services indicate this occurs on p. xv, but no such page was found. CRS found it in Section 3.5 on page 3-12 of the Consultation Handbook). 80 Consultation Handbook, pp. 3-12. This is an additional suggestion that Action Agencies will be performing a complicated effects analysis determining that they must consult with the Services. It seems Subsection (c) could allow agencies to segment their projects and initiate consultation only for those parts that may have an effect that is significant, identifiable, and poses more than a remote risk of jeopardy. The Services use power plant emissions as an example, saying that the immediate, local effect of the emissions may require consultation, but the climate change aspects would not.81 Because these determinations appear to be made by an Action Agency without the consultation or assistance of the Services, they are arguably contrary to the ESA. There appears to be an inconsistency between the revisions in Subsection (c) and those in Section 402.13. Subsection (c) permits an agency to consult for only part of a project. However, the changes to Section 402.13--informal consultations--require an Action Agency to consider "the effects of the action as a whole." In that case, whatever aspects of the action that were not advanced to consultation could be considered during the consultation anyway, when the agency considered the effects of the action as a whole. The 1986 regulations distinguished between informal consultations and formal consultations, making a practical distinction based on the likely severity of an action's impacts. The informal consultation regulation was designed to provide a more efficient way of evaluating ESA effects by stopping the consultation process for projects that "upon further informal review, are found not likely to adversely affect a listed species or critical habitat."82 If it agrees, the Service is required to concur with the Action Agency's determination of "not likely to adversely affect" in writing. The revised regulations make procedural changes and substantive additions to the informal consultation process. The first change modifies the scope of what is reviewed in an informal consultation. The previous regulations stated, "If during informal consultation it is determined by the Federal agency ... that the action is not likely to adversely affect listed species or critical habitat, the consultation process is terminated, and no further action is necessary."83 The revised regulation increases the scope beyond the agency action to include other relevant projects. Section 402.13(a) reads: "If during informal consultation it is determined by the Federal agency that the action, or a number of similar actions, an agency program, or a segment of a comprehensive plan is not likely to adversely affect listed species ... the consultation process is terminated ... if the Service concurs in writing." This appears to allow one informal consultation for related projects, which could promote efficiency by allowing one review and one concurrence by the Service. Determining when actions are in fact "similar," however, could be controversial. It is also not clear whether the Action Agency would determine unilaterally whether consultation would occur on one action or similar actions, or whether the decision to aggregate actions requires the written concurrence of the Service. It appears that the concurrence refers to the "not 81 See 73 Fed. Reg. at 76282-83. 82 51 Fed. Reg. at 19948 (June 3, 1986). 83 50 C.F.R. § 402.13(a). likely to adversely affect" determination. However, it is ambiguous, and could mean the Service has to agree as to the relatedness of the actions too. Another significant issue is whether considering only a "segment of a comprehensive plan" could obscure the full agency action and thwart consideration of the adverse effects that may result from the entire project. The Ninth Circuit rejected an attempt to isolate a portion of a project when considering whether an action would be likely to jeopardize a species.84 A second change to the previous regulatory language alters the substance of the informal consultation review. That addition states: "For all requests for informal consultation, the Federal agency shall consider the effects of the action as a whole on all listed species and critical habitats."85 As discussed earlier, effects of the action appears in the context of an Action Agency's BA in formal consultations. This would add that evaluation to informal consultations as well. This appears to increase the burden of informal consultations without necessarily offering relief from the formal consultation process. The informal consultation process is revised by adding a deadline for a Service to provide a written response with the Action Agency's determination of not likely to adversely affect. If a Service has not responded within 60 days of the Action Agency's notification of its NLAA determination, the consultation may be terminated without the Service's concurrence.86 The Services may extend the deadline by an additional 60 days, and consultation may continue beyond this term if all the parties agree. Section 402.13(b) states that this termination means that Section 7(a) is satisfied. While the deadline may spur efficiency by forcing a response from the Service, it also could violate the statute's purpose of having the Service and the Action Agency determine a project's potential harms using the best scientific and commercial data available. Additionally, as pointed out in a GAO report referred to by the Services, having adequate staff to address consultations is a problem.87 The time limit could allow projects that may pose jeopardy to move forward due to default, or lead to hasty conclusions by the Services. The revised regulation appears to create a new document for informal consultations: a request. Based on the new deadline requirement, a request could serve an important procedural role by marking the date on which the consultation starts. However, the revised regulations do not define request. The previous regulations did not require a specific request for informal consultation--a series of phone calls could start the process. A request now marks the start of the informal 84 National Wildlife Federation v. National Marine Fisheries Services, 524 F.3d 917, 933 (9th Cir. 2008) (holding that NMFS incorrectly considered only the discretionary actions of a project by isolating the non-discretionary ones in its BiOp). 85 50 C.F.R. § 402.13(a). 86 50 C.F.R. § 402.13(b). 87 GAO, ESA: More Federal Management Attention Is Needed to Improve the Consultation Process, GAO-04-93, p. 4 (March 2004). consultation period under the revisions, suggesting that a written document may be required as a record of the date. When read with the requirement that the Action Agency must consider the effects of an action when making a request, these changes escalate the informal consultation process, making it more like a formal one. The only change to the formal consultation process is a link to the deadline imposed by the informal consultation. The revised regulation states that formal consultation is not required under two circumstances: (1) if the Service agrees in writing that the action is not likely to adversely affect a listed species; or (2) if informal consultation has been completed without a written concurrence from the Service within the appropriate time.88 Overall, the potential effects of the changes include blurring the distinction between informal and formal consultation. Both would (presumably) begin with written requests, both would involve analyses of effects of the action, and both would have time limits for completion.89 Informal consultation could become more formalized. Also, Action Agencies could be relieved from official formal consultations in the case of a default by the Services regardless of the impact of their projects. The revised processes for informal and formal consultation raise a number of questions. The regulations might create a perverse incentive to provide inadequate information, because an agency could submit incomplete data in hopes that an already overburdened Service would miss its deadline and the project could proceed. (This would involve the Action Agency's assuming the risk of potentially taking a listed species without an Incidental Take Statement (ITS).) If the Services must judge whether a project may affect a species or critical habitat in a very limited time, would the Services issue fewer concurrences and require more projects to advance to formal consultation? If so, rather than decreasing the Services' responsibilities, the changes might increase their work load. In the notice of the proposed rule, the Services stated that there is no requirement to consult on greenhouse gas (GHG) emissions' contribution to global warming.90 Some of the revised regulations separate projects that may affect climate change from the consultation process. Before discussing climate change in this context, it should be noted that the purpose of the consultation process is to consider the effects of agency actions on listed species and their habitats--not the effects of climate change on listed species. There are few agency actions that produce GHGs directly. Most actions result in permits or licenses for others to produce the gases. Therefore, arguably, agency actions would have only indirect effects on producing GHGs, which 88 proposed 50 C.F.R. § 402.14(b). 89 Under current regulations, the deadline for formal consultation on projects that do not involve an applicant (for a license, permit, etc.) may be extended by mutual consent of the Action Agency and the Service (§ 402.14(f)). 90 73 Fed. Reg. at 47872. then could affect climate change. The Services have argued that the lack of causation is the reason actions authorizing GHG emissions do not require consultation: There is currently no way to determine how the emissions from a specific project under consultation both influence climate change and then subsequently affect specific listed species or critical habitat, including polar bears. As we now understand them, the best scientific data currently available does not draw a causal connection between GHG emissions resulting from a specific Federal action and effects on listed species or critical habitat by climate change, nor are there sufficient data to establish the required causal connection to the level of reasonable certainty between an action's resulting emissions and effect on species or critical habitat.91 The revised regulations advance the Services' position that an ESA consultation should not consider the effects of GHG emissions. The Services gave these reasons for why GHG emissions from a project are not part of consultation: · impacts associated with global warming do not constitute "effects of the action" because they are not an essential cause of the effects (§ 402.02); · GHG emissions may be an "insignificant contributor" to any adverse impacts (proposed § 402.03(b)(2)) [this was eliminated in the final version]; · GHG emissions may not be "capable of being meaningfully identified or detected in a manner that permits evaluation" (§ 402.03(b)(3)(i)); and · the potential risk of harm to species or habitat from those GHG emissions is remote (§ 402.03(b)(3)(iii)) [this was moved to 402.03(b)(2)(iii) and revised in the final version].92 The revised regulations, however, do not expressly refer to GHGs, but instead use the term global processes, which is undefined. The Services indicated they chose global processes as a way to limit application of the revised section of when consultation is needed, to exclude only those evaluations involving climate change.93 It is not clear why they did not do so directly by referring to climate change, rather than using what could be found to be a vague term. Global processes could include such other interrelated factors as El Niño, changing drought patterns, and rising sea levels. Most scientists agree that countless sources of GHG emissions are driving climate change. Under the revised regulations, however, GHG emissions from a particular or narrowly defined agency action may not be considered an essential cause of any climate change effects on a species. Under the revised regulations, an agency action must be an essential cause of an effect on a species for it to be considered after the consultation process has begun. The Services described essential cause as meaning "the effect would not occur `but for' the action under consultation.... there must be a close causal connection between the action under consultation and the effect that is being evaluated."94 The causal link to affect a species is arguably quite tenuous: GHG emissions must 91 73 Fed. Reg. 28305, 28313 (May 15, 2008) (special rules for polar bears). 92 73 Fed. Reg. at 47872. 93 73 Fed. Reg. at 76282. 94 73 Fed. Reg. at 47870. first affect climate change, which then must affect an ecosystem, which then must affect a species. The remaining changes in the rule influence how the Action Agency decides whether consultation applies to an action. Actions that manifest themselves in global processes, which presumably would include increased GHGs, would require consultation under certain circumstances, such as if the local impacts could be reliably predicted, or the local impacts were more than "extremely small, insignificant." Here, in the context of GHGs, the aggregation of actions could be key. According to the Services, EPA modeling indicated that "the emissions of a very large coal-fired power plant would likely result in a rise in the maximum global mean temperature of less than one-thousandth of a degree."95 However, an agency action that consists of a permitting process involving hundreds of GHG sources may be significant. Projects leading to GHG emissions may not require consultation if the effects of the action cannot be meaningfully identified or detected "in a manner that permits evaluation." It is not clear what might constitute an evaluation. For example, there may be enough data to determine whether an effect will be positive or negative, but not the magnitude of the effect. The standard for this evaluation may be the best available scientific information, in which case such an evaluation may suffice. The Services said the decision would be "based on best judgment."96 Another change to the current regulations that the Services have indicated will exclude some consultations on projects with GHG emissions, is the provision that the effects of the action must be such that the "potential risk of harm to species or habitat is remote." Remote has many meanings. Noting that the provision containing the term had been modified, the Services indicated that remote could apply to time, space, probability of occurrence, or other things.97 The complexities of global climate modeling make such an assessment on an individual project problematic. In the context of GHG emissions and global climate change, the question of aggregation of actions upon which to consult appears to be pivotal. The revised regulations allow agencies to consider not just an agency action but "a number of similar actions, an agency program, or a segment of a comprehensive plan."98 This seems targeted toward efficiency, but consolidated agency actions could have a much bigger impact than would be measurable for an individual action, and arguably constitute an essential cause of an indirect harm. However, it is not clear from the revision whether the decision to submit just one action or a combined program for review is at the discretion of the Action Agency or requires the concurrence of the Service. Proponents of the changes contend that GHG emissions from most agency actions do not have a causal effect on species and that the ESA should not be used to regulate GHG emissions. Others argue that climate change has an impact on species and should be considered under ESA consultations, though proponents maintain that the number of federal agency actions with the potential to affect climate change may be so large as to overwhelm the Services.99 In the lawsuit 95 73 Fed. Reg. at 76283. 96 73 Fed. Reg. at 76284 (referring to the Consultation Handbook). 97 73 Fed. Reg. at 76283. 98 50 C.F.R. § 402.13. 99 John Kostyack and Dan Rohlf, Conserving Endangered Species in an Era of Global Warming, 38 ELR 10203 (April 2008). Natural Resources Defense Council v. Kempthorne, 506 F. Supp. 2d 322, 369 (E.D. Cal. 2007). 101 Center for Biological Diversity v. Kempthorne, No. CV-08-5546, at 18 (N.D. Cal. filed Dec. 10, 2008). 100 ,tatibah lacitirc ro seiceps eht no noitca na fo stceffe ,tatibah lacitirc ro seiceps eht no noitca na fo stceffe tceridni dna tcerid eht snaem noitca eht fo stceffE tceridni dna tcerid eht ot srefer noitca eht fo stceffE .noitatlusnoc rednu noitca laredeF ralucitrap eht fo aera noitca eht nihtiw detacol yllacisyhp era taht seitivitca .noitatlusnoc ot tcejbus noitca laredeF erutuf edulcni ton od stceffe evitalumuC laredeF eht fo aera noitca eht nihtiw rucco ot niatrec .noitatlusnoc ot tcejbus noitca laredeF eht fo aera noitca eht nihtiw rucco ot niatrec ylbanosaer era ylbanosaer taht ,seitivitca laredeF gnivlovni ton ,seitivitca etavirp ro era taht ,seitivitca laredeF gnivlovni ton ,seitivitca etavirp etatS erutuf fo stceffe esoht snaem stceffe evitalumuC ro etatS erutuf fo stceffe esoht era stceffe evitalumuC .tnemssessa lacigoloib a fo ueil ni dettimbus tnemucod evitanretla yna ni ,41.204 ni debircsed sa noitamrofni noitatlusnoc tnaveler eht fo noitacol eht ot sa tnemetats ro ediug cificeps a secivreS eht edivorp ot deriuqer si ycnega laredeF ehT .noitatlusnoc eht etaitini ot deriuqer noitamrofni eht gniniatnoc )tnemetats tcapmi latnemnorivne ro tnemssessa latnemnorivne na ,.g.e( sesoprup rehto rof deraperp stnemucod ro tnemucod a eb yam ti ro ,noitatlusnoc ycnegaretni fo esoprup elos eht rof deraperp tnemucod a eb yam tnemssessa lacigoloib A .tatibah dna seiceps hcus no noitca .tatibah dna seiceps hcus no noitca eht fo stceffe laitnetop fo noitaulave eht dna aera noitca eht fo stceffe laitnetop fo noitaulave eht dna aera noitca eht ni tneserp eb yam taht tatibah lacitirc desoporp dna eht ni tneserp eb yam taht tatibah lacitirc desoporp dna detangised dna seiceps desoporp dna detsil gninrecnoc detangised dna seiceps desoporp dna detsil gninrecnoc ycnega laredeF eht fo noitcerid eht rednu ro yb ycnega laredeF eht fo noitcerid eht rednu ro yb deraperp noitamrofni eht snaem tnemssessa lacigoloiB deraperp noitamrofni eht ot srefer tnemssessa lacigoloiB tnemssessA lacigoloiB fo noitinifeD ­ 20.204 noisreV laniF .R.F.C 05 eltiT fo noisreV suoiverP ).epyt dlob ni e ra snoitaluger eht ot snoitid da desoporP .sc ilati ni netti rw dna stekc arb yb d ekra m era snoitaluger tnerruc eht morf snoiteled desoporP( snoitalugeR desiveR ot snoitalugeR suoiverP fo nosirapmoC . 1 elbaT consultation.101 federal court required the Services to consider climate change as part of a Section 7 the Services to determine their effect on listed species and their environments.100 At least one climate change, but actions that contribute to climate change would not have to be reviewed by consultation requirement leads to an inconsistent result: species may be listed as a result of challenging the regulations, the plaintiffs argued that omitting climate change from the ro ;noitaulave stimrep taht rennam a ni detceted ro deifitnedi yllufgninaem gnieb fo elbapac ton erA )i( :noitca hcus fo stceffe ehT )3( ro ;etomer si tatibah ro seiceps ot mrah fo ksir laitnetop eht taht hcus era )iii( ro ,tcapmi lacol tnacifingisni ,llams ylemertxe na ni tsom ta tluser dluow)ii( ro ,elacs lacol eht ta derusaem ro detciderp ylbailer eb tonnac )i( dna sessecorp labolg hguorht ylno detsefinam era noitca hcus fo stceffe ehT )2( ro ;tatibah lacitirc ro seiceps detsil a no tceffe on sah noitca hcuS )1( :dna ekat ni tluser ot detapicitna ton era noitca taht fo stceffe tceridni dna tcerid eht nehw noitca na no tlusnoc ot deriuqer ton era seicnega laredeF )b( .lortnoc ro tnemevlovni yranoitercsid .lortnoc ro tnemevlovni sah ycnega laredeF eht hcihw ni snoitca lla laredeF yranoitercsid si ereht hcihw ni snoitca ot ylppa trap siht fo stnemeriuqer eht dna 7 noitceS )a( lla ot ylppa trap siht fo stnemeriuqer eht dna 7 noitceS .noitaredisnoc rednu noitca eht morf trapa ytilitu tnednepedni on evah taht esoht era snoitca tnednepedretnI .noitacifitsuj rieht rof noitca regral eht no dneped dna noitca regral a fo trap era taht esoht era snoitca detalerretnI .noitamrofni laitnatsbus dna raelc no desab eb tsum rucco ot niatrec ylbanosaer si tceffe na taht noisulcnoc A .neppah lliw tceffe na taht ecnedifnoc etisiuqer eht enimreted .noitaredisnoc rednu noitca eht morf ot desu dradnats eht si rucco ot niatrec trapa ytilitu tnednepedni on evah taht esoht era snoitca ylbanosaeR .tceffe tceridni eht fo esuac laitnesse tnednepedretnI .noitacifitsuj rieht rof noitca regral eht na ton si noitca eht ,ecalp sekat noitca eht ton no dneped dna noitca regral a fo trap era taht esoht era ro rehtehw rucco lliw tceffe na fI .rucco ot niatrec snoitca detalerretnI .rucco ot niatrec ylbanosaer era llits ylbanosaer era llits tub ,emit ni retal era taht dna ,esuac laitnesse na si noitca desoporp eht hcihw tub ,emit ni retal era dna noitca desoporp rof esoht era stceffe tceridnI .ssecorp ni noitatlusnoc eht yb desuac era taht esoht era stceffe tceridnI .ssecorp eht htiw suoenaropmetnoc era hcihw snoitca etavirp ni noitatlusnoc eht htiw suoenaropmetnoc era hcihw ro etatS fo tcapmi eht dna ,noitatlusnoc 7 noitces ylrae snoitca etavirp ro etatS fo tcapmi eht dna ,noitatlusnoc 7 ro lamrof enogrednu ydaerla evah taht aera noitca eht noitces ylrae ro lamrof enogrednu ydaerla evah taht aera ni stcejorp laredeF desoporp lla fo stcapmi detapicitna noitca eht ni stcejorp laredeF desoporp lla fo stcapmi eht ,aera noitca eht ni seitivitca namuh rehto detapicitna eht ,aera noitca eht ni seitivitca namuh dna snoitca etavirp ro ,etatS ,laredeF lla fo stcapmi rehto dna snoitca etavirp ro ,etatS ,laredeF lla fo stcapmi tneserp dna tsap eht sedulcni enilesab latnemnorivne tneserp dna tsap eht sedulcni enilesab latnemnorivne ehT .enilesab latnemnorivne eht ot dedda eb lliw ehT .enilesab latnemnorivne eht ot dedda eb , taht ] [noitca taht htiw tnednepedretni ro detalerretni lliw taht ,noitca taht htiw tnednepedretni ro detalerretni era taht seitivitca rehto fo stceffe eht htiw rehtegot era taht seitivitca rehto fo stceffe eht htiw rehtegot noisreV laniF .R.F.C 05 eltiT fo noisreV suoiverP htiw rucnoc ot ecivreS eht wolla dna yllamrofni noitatlusnoc evloser ot redro ni doirep emit cificeps a rof noitatlusnoc lamrofni dnetxe ot eerga yam ,devlovni si eno fi ,tnacilppa eht dna ,ycnega laredeF eht ,ecivreS eht ,)b( hpargarap fo snoisivorp eht gnidnatshtiwtoN )c( .deifsitas si )2()a(7 noitces ni noisivorp noitatlusnoc eht ,noitces siht fo )a( hpargarap ni rof dedivorp noitanimreted s'ycnega laredeF a htiw srucnoc ti rehtehw tnemetats nettirw a tuohtiw seripxe doirep noisnetxe s'ecivreS eht fi ro ,doirep yad-06 eht fo dne eht ta noitatlusnoc setanimret ycnega laredeF eht fI .doirep yad-06 eht fo dne eht morf syad 06 lanoitidda na naht retaerg on doirep a rof noitatlusnoc lamrofni rof emit eht dnetxe ,doirep yad-06 eht nihtiw ycnega laredeF eht ot eciton nettirw nopu ,yam ecivreS ehT .noitatlusnoc etanimret ,ecivreS eht ot eciton nettirw nopu ,yam ycnega laredeF eht ecnerrucnoc rof tseuqer s'ycnega laredeF eht fo etad eht gniwollof syad 06 nihtiw noitces siht fo )a( hpargarap ni rof dedivorp noitanimreted s'ycnega laredeF a htiw srucnoc ti rehtehw gnidrager noitanimreted nettirw a dedivorp ton sah ecivreS eht fI )b( .statibah lacitirc dna seiceps detsil lla no elohw a .tatibah sa noitca eht fo stceffe eht redisnoc llahs ycnega lacitirc ro seiceps detsil ot stceffe esrevda fo doohilekil laredeF eht ,noitatlusnoc lamrofni rof stseuqer eht diova ot tnemelpmi dluoc tnacilppa yna dna ycnega lla roF .gnitirw ni srucnoc ecivreS eht fi yrassecen laredeF eht taht noitca eht ot snoitacifidom tseggus si noitca rehtruf on dna ,detanimret si ssecorp yam ecivreS eht ,noitatlusnoc lamrofni gniruD )b( noitatlusnoc eht ,tatibah lacitirc ro seiceps detsil tceffa ylesrevda ot ylekil ton si ,nalp evisneherpmoc .yrassecen si noitca rehtruf on dna a fo tnemges a ro ,margorp ycnega ,detanimret si ssecorp noitatlusnoc eht ,tatibah lacitirc ro na ,snoitca ralimis fo rebmun a ro ,noitca eht seiceps detsil tceffa ylesrevda ot ylekil ton si noitca eht taht ],ecivreS eht fo ecnerrucnoc nettirw eht htiw[ ,ycnega taht ,ecivreS eht fo ecnerrucnoc nettirw eht htiw ,ycnega laredeF eht yb denimreted si ti noitatlusnoc lamrofni laredeF eht yb denimreted si ti noitatlusnoc lamrofni gnirud fI .deriuqer si ecnerefnoc a ro noitatlusnoc gnirud fI .deriuqer si ecnerefnoc a ro noitatlusnoc lamrof rehtehw gninimreted ni ycnega laredeF lamrof rehtehw gninimreted ni ycnega laredeF eht tsissa ot dengised ,evitatneserper laredeF-non eht tsissa ot dengised ,evitatneserper laredeF-non detangised eht ro ycnega laredeF eht dna ecivreS eht detangised eht ro ycnega laredeF eht dna ecivreS eht neewteb ,.cte ,ecnednopserroc ,snoissucsid lla sedulcni neewteb ,.cte ,ecnednopserroc ,snoissucsid lla sedulcni taht ssecorp lanoitpo na si noitatlusnoc lamrofnI )a( taht ssecorp lanoitpo na si noitatlusnoc lamrofnI )a( .noitces siht fo )b( hpargarap nihtiw llaf ton od taht noitca eht fo stceffe esoht rof ylno deriuqer si noitatlusnoc neht ,noitces siht fo )b( hpargarap nihtiw llaf noitca na fo stceffe eht fo lla ton tub erom ro eno fI .noitca eht rof deriuqer si noitatlusnoc on neht ,noitces siht fo )b( hpargarap nihtiw llaf noitca na fo stceffe eht fo lla fI )c( .laicifeneb yllohw erA )ii( noisreV laniF .R.F.C 05 eltiT fo noisreV suoiverP }deifidomnu )k(-)c( snoitces{ ;srucnoc ti rehtehw ot sa ecivreS eht yb tnemetats nettirw a tuohtiw )b(31.204 § rednu }dettimo )k( - )c( snoitces{ detelpmoc neeb sah noitatlusnoc lamrofni ro gnitirw ni srucnoc rotceriD eht dna , tatibah lacitirc .tatibah ro seiceps detsil yna tceffa ylesrevda ot ylekil ton lacitirc ro seiceps detsil yna tceffa ylesrevda ot ylekil ton si noitca desoporp eht taht ,]rotceriD eht fo ecnerrucnoc si noitca desoporp eht taht ,rotceriD eht fo ecnerrucnoc nettirw eht htiw[ senimreted ycnega laredeF eht ,31.204 nettirw eht htiw ,senimreted ycnega laredeF eht .ceS rednu ecivreS eht htiw noitatlusnoc lamrofni fo ,31.204 .ceS rednu ecivreS eht htiw noitatlusnoc lamrofni tluser a sa ro 21.204 .ceS rednu tnemssessa lacigoloib fo tluser a sa ro 21.204 .ceS rednu tnemssessa lacigoloib a fo noitaraperp eht fo tluser a sa ,fi noitatlusnoc lamrof a fo noitaraperp eht fo tluser a sa ,fi noitatlusnoc lamrof etaitini ton deen ycnega laredeF A )1( .snoitpecxE )b( etaitini ton deen ycnega laredeF A )1( .snoitpecxE )b( .tseuqer eht rof sisab eht fo noitanalpxe nettirw .tseuqer eht rof sisab eht fo a ycnega laredeF eht ot drawrof llahs rotceriD eht noitanalpxe nettirw a ycnega laredeF eht ot drawrof llahs ,edam si tseuqer a hcus nehW .noitatlusnoc on neeb rotceriD eht ,edam si tseuqer a hcus nehW .noitatlusnoc sah ereht hcihw rof dna tatibah lacitirc ro seiceps detsil on neeb sah ereht hcihw rof dna tatibah lacitirc tceffa yam taht ycnega taht fo noitca yna seifitnedi eh ro seiceps detsil tceffa yam taht ycnega taht fo noitca yna fi noitatlusnoc otni retne ot ycnega laredeF a tseuqer seifitnedi eh fi noitatlusnoc otni retne ot ycnega laredeF yam rotceriD ehT .noitces siht fo )b( hpargarap ni a tseuqer yam rotceriD ehT .noitces siht fo )b( hpargarap deton sa tpecxe ,deriuqer si noitatlusnoc lamrof ,edam ni deton sa tpecxe ,deriuqer si noitatlusnoc lamrof ,edam si noitanimreted a hcus fI .tatibah lacitirc ro seiceps si noitanimreted a hcus fI .tatibah lacitirc ro seiceps detsil tceffa yam noitca yna rehtehw enimreted ot emit detsil tceffa yam noitca yna rehtehw enimreted ot emit elbissop tseilrae eht ta snoitca sti weiver llahs ycnega elbissop tseilrae eht ta snoitca sti weiver llahs ycnega laredeF hcaE .noitatlusnoc lamrof rof tnemeriuqeR )a( laredeF hcaE .noitatlusnoc lamrof rof tnemeriuqeR )a( .tatibah lacitirc ro seiceps detsil ot stceffe esrevda fo doohilekil eht diova ot tnemelpmi dluoc tnacilppa yna dna ycnega laredeF eht taht noitca eht ot snoitacifidom tseggus yam ecivreS eht ,noitatlusnoc lamrofni gniruD )d( .noitanimreted tceffa ylesrevda ot ylekil ton s'ycnega laredeF eht noisreV laniF .R.F.C 05 eltiT fo noisreV suoiverP ¡ ¢ The National Fire Plan, part of the Healthy Forests Initiative, is administered primarily by the Bureau of Land Management (BLM) and the Forest Service (FS).102 Joint regulations were issued in 2003 to address the effects of increasing levels of wildfires on listed species. Among other things, those regulations turn consultation into a process that occurs wholly within BLM or FS, without concurrence by a Service, when the Action Agency finds its project is not likely to adversely affect a listed species.103 These regulations were issued under the provision for counterpart regulations,104 which some have suggested could be used as an alternative to the regulatory changes proposed. In some respects, proposed Sections 402.03(b) and 402.03(c) resemble the internal consultations that were created under the NFP. A review of the delegation of some ESA consultation responsibilities to the NFP agencies may illuminate possible results for similar delegations apparently envisioned in the proposed regulations. In January 2008, the Services, FS, and BLM issued a joint report on the NFP in its first full year of experience with these counterpart regulations (FY2004).105 The Services reviewed whether the two Action Agencies met the various ESA requirements in their preparation of BAs. FS and BLM documents for their internal review were required to do the following: · describe the federal action clearly; · describe the action's direct and indirect environmental effects; · describe the specific area that may be affected by the action; · identify the listed species and the designated critical habitat that may be affected; · compare the list of species and the potential effects to determine if exposure is likely, and if so, whether any exposure is likely to be beneficial, insignificant, or discountable; and 102 The National Fire Plan (NFP) started as a response by the Clinton Administration to the severe fire season of 2000. It was primarily a request for supplemental appropriations for wildfire suppression and additional wildfire fuel reduction, and was largely enacted in the 2001 Interior appropriations act. Congress has provided funds at much higher levels since then. Following the 2002 fire season, the Bush Administration proposed the Healthy Forests Initiative to expand the NFP. Portions of the Initiative were enacted in the Healthy Forests Restoration Act (P.L. 108-148). Other portions to expedite fuel reduction efforts were effected through regulatory changes, one of which was the ESA counterpart regulations examined in this appendix. For more information and analysis on the NFP and the Healthy Forests Initiative, CRS Report RL33792, Federal Lands Managed by the Bureau of Land Management (BLM) and the Forest Service (FS): Issues for the 110th Congress, by Ross W. Gorte et al. 103 50 C.F.R. § 402.31. See Defenders of Wildlife v. Kempthorne, 2006 wl 2844232 (D.D.C. September 29, 2006) (upholding the regulations because of the role played by the Services). 104 The other counterpart regulation issued, for EPA pesticide licensing, was ruled as violating the ESA. Washington Toxics Coalition v. EPA, 457 F. Supp. 2d 1148 (W.D. Wash. 2006). 105 NMFS, FWS, FS, and BLM, Use of the ESA Section 7 Counterpart Regulations for Projects that Support the National Fire Plan: Program Review: Year One (January 11, 2008) (hereinafter ESA/NFP Review). Available online at http://www.nmfs.noaa.gov/pr/pdfs/laws/fireplanreview.pdf. · use the best available scientific and commercial data.106 NMFS and FWS constructed separate analyses of the results. Table A-1 is the summary of the 10 projects involving species under NMFS management; Table A-2 and Table A-3 summarize the 50 projects with FWS species. The NMFS review concluded that there were deficiencies in all 10 project assessments in five of the six criteria for evaluation, including the use of the best available scientific information.107 deificepS teeM toN diD taht SFMN yb deweiveR stcejorP fo rebmuN .1-A elbaT airetirC )t cejorp 1 :MLB ;stcejorp 9 :SF( noiretirC/tcudorP seY oN AB htiw dettimbus saw tsilkcehC larudecorP 9 1 )noitca eht fo stnenopmoc suoirav fo noitpircsed a sedulcni( ylraelc snoitca desoporp seifitnedI 1 01 ,stceffe latnemnorivne tceridni dna tcerid s'noitca eht fo snrettap laropmet dna laitaps seifitnedI 2 snoitca tnednepedretni dna detalerretni fo stceffe tceridni dna tcerid gnidulcni 01 3 )2 ni noitamrofni no desab( ylraelc aerA noitcA seifitnedI 01 4 eb yam taht tatibah lacitirc detangised yna dna seiceps deregnadne dna denetaerht lla seifitnedI lacigoloib ,laropmet ,laitaps fo noitpircsed a sedulcni( noitca desoporp eht ot desopxe )tnemssessa tcejorp eht ot etairporppa stnemele tatibah tneutitsnoc dna scitsiretcarahc 01 5 deregnadne dna denetaerhT eht htiw )2 ni deifitnedi( stceffe laitnetop fo noitubirtsid eht serapmoC dna cifitneics tseb eht gnisu ,sehsilbatse dna )4 ni deifitnedi( tatibah lacitirc detangised dna seiceps era sesnopser ,ylekil si erusopxe fi )b( ro ylbaborpmi si erusopxe )a( taht elbaliava atad laicremmoc 01 laicifeneb yllohw ro ,elbatnuocsid ,tnacifingisni 6 noitamrofni laicremmoc dna cifitneics elbaliava tseb no desab si noitanimreteD 01 .21 .p ,weiveR PFN/ASE :ecruoS FWS analyzed 50 projects.108 (See Table A-2 and Table A-3.) Of the 43 FS project BAs, 18 met all of the review criteria, and 25 missed one or more. Six of the 25 (roughly 15% of the total projects) met none of the evaluation criteria. Of the seven BLM project BAs, one met all of the criteria, and six missed at least one. Of the six, there were two BAs that met none of the criteria. Overall, 31 of the 53 project BAs (66%) were deficient in at least one respect; 4% were deficient in all criteria. The two Action Agencies approved recommended measures to improve their BAs; those measures involved oversight and further training of personnel by the Action Agencies.109 106 ESA/NFP Review, p. 2. 107 NMFS found that both Action Agencies succeeded in the sixth criterion: summarizing their own actions clearly. 108 There were 9 additional FS projects that included NMFS species and 1 additional BLM project that included NMFS species. Results for those projects are shown in the NMFS table. 109 ESA/NPA Review, p. 21-23. .32-12 .p ,weiveR PFN/ASE :ecruoS 7 34 latoT 1 81 airetirC 6 llA dessiM 6 91 dessiM 5 ot 1 0 6 dessiM airetirC oN MLB ecivreS tseroF dessiM airetirC fo rebmuN seicepS SWF rof tcejorP yb ,dessiM airetirC fo rebmuN latoT.3-A elbaT agencies that only rarely consider endangered species issues. might presage a difficult period of adjustment to the proposed regulations, particularly for Services to perform the internal consultation. The apparently rocky start by these two agencies implementing the mandates of their agencies. Additionally, they received special training by the Compared to many other federal agencies, both BLM and FS have substantial experience in .airetirc xis eht gnoma seicneicifed fo srebmun gniyrav dah stcejorp tnereffid esuaceb dedda eb tonnac snmuloC :etoN .91 .p ,weiveR PFN/ASE :ecruoS 4 11 atad elbaliava tseb no desab saw noitanimreteD 6 4 61 stceffe ot erusopxe fo doohilekil denimreteD 5 3 01 tatibaH lacitirC ro/dna seicepS E&T lla deifitnedI 4 4 61 aerA noitcA deifitnedI 3 6 21 snoitca tnednepedretnI /detalerretnI /tceridnI/tceriD deifitnedI 2 5 8 noitca desoporp deifitnedI 1 MLB ecivreS tseroF )tnemeergA noitatlusnoC evitanretlA fo 3 xidneppA( mroF noitaulavE morf noiretirC )stcejorp 7 :MLB ;stcejorp 34 :ecivreS tseroF( airetirC deificepS teeM toN diD taht SWF yb deweiveR stcejorP fo rebmuN .2-A elbaT ¡ ¢ One major aspect of the proposed regulations is the imposition of a deadline on informal consultation, and the subsequent effect of that deadline on formal consultation. This section will examine one project's request for consultation with FWS and relate it to the proposed regulations. The Desert Rock Energy Project concerns the construction of a coal-fired power plant on Navajo land in northwestern New Mexico.110 The Bureau of Indian Affairs (BIA) was the Action Agency. It is not clear when the phone calls and emails that often begin informal consultation first occurred. But on April 30, 2007, the BIA sent FWS its BA concerning the effects of the proposed project on five endangered species, one threatened species, and designated critical habitat for two of the endangered species. The BA determined that the project was not likely to adversely affect the five endangered species, nor the two critical habitats, but was likely to adversely affect the threatened species. On July 2, 2007, FWS asked the BIA to submit additional information that was not included in the first BA. (Since an adequate BA had not yet been supplied, consultation was still considered informal.) The BIA submitted a revised BA on October 26, 2007. On January 7, 2008, FWS replied, noting that a number of the questions contained in its earlier response had not been answered, and that all of the species might be adversely affected, as might the designated critical habitats. Among the issues not addressed in the revised BA, according to FWS, were: · The BA assumed that the plant would be fired by coal that was different in chemical composition (in concentrations of mercury, selenium, and other contaminants) from the nearby coal that was likely to be used and which, according to the U.S. Geological Survey, had higher concentrations of these contaminants than the coal assumed in the BIA analysis. FWS could not analyze species impacts until the BA included an analysis of the coal actually to be used. · Heavy metals can accumulate in organisms. If the coal that is actually used has more heavy metals than BIA models assumed, then a new analysis of this risk would be necessary. · The cumulative effects of three existing plants plus the new plant, plus global climate change, were not fully analyzed. The Desert Rock Memorandum from FWS concluded that formal consultation would begin when it had received the requested information or an explanation why the information was not made available. No additional documents have been exchanged between the agencies, although discussion between them continues. 110 It is not clear whether this timeline is typical of Section 7 consultations. It was chosen for the ready availability of relevant documents and the record of protracted discussions between an Action Agency and FWS--a scenario that may be affected by the deadlines proposed in the new regulations. For information on consultation on the Desert Rock Energy Project, see FWS Memorandum to Regional Director, Navajo Regional Office, Bureau of Indian Affairs, Gallup, New Mexico. "Subject: Information Needed for Formal Consultation on the Desert Rock Energy Project." Cons. #420-2004-F-0356. (January 7, 2008) (Hereinafter Desert Rock Memorandum). If the proposed regulations had been in effect, the following changes in the process might have occurred. First, there might have been some effort on the part of BIA to document the date on which informal consultation began. Second, if one assumes that the April 20, 2007 memo started informal consultation, then the proposed regulations would have allowed BIA to terminate consultation 120 days later, on August 28, 2007, without the concurrence of FWS, due to incomplete information. However, BIA chose to continue the consultation process for several reasons. First, considerable opposition to the Desert Rock Energy Project exists, making a citizen suit likely, and BIA would not have an ITS excusing incidental takes. Second, FWS continues to work with BIA to address the problems in the second amended BA. If jeopardy or adverse modification of critical habitat could occur, it may be possible to develop reasonable and prudent alternatives through the consultation process that would avoid jeopardy, adverse modification of critical habitat, and citizen suits. If Action Agencies were to choose to terminate informal consultation, and rely on that termination to avoid formal consultation, the focus of action would likely shift from the consultation process to the courtroom. Where quick resolution is a major goal, the courts might not be an Action Agency's preferred choice. More importantly, the Action Agency would not have an ITS that would excuse incidental takes of species, leaving it vulnerable to charges alleging ESA violations. Kristina Alexander M. Lynne Corn Legislative Attorney Specialist in Natural Resources Policy kalexander@crs.loc.gov, 7-8597 lcorn@crs.loc.gov, 7-7267 ------------------------------------------------------------------------------ For other versions of this document, see http://wikileaks.org/wiki/CRS-RL34641