By David Bernhardt, a Shareholder with Brownstein Hyatt Farber Schreck, LLP and the former Solicitor of the U.S. Department of the Interior.
Many have criticized the massive legal settlement recently agreed to by the U.S. Fish and Wildlife Service (the Service), the Center for Biological Diversity and Wildearth Guardians where, in one fell swoop, these parties settled listing deadline lawsuits for hundreds of potentially listable species. In a recent statement, the Chairman of the House Natural Resources Committee, Doc Hastings R-WA, explained the criticism noting that this mega settlement “will force the federal agency to rush potential listings that will certainly leave gaping holes in the science to justify such listings.”
Hastings’ fear that rushed agency decisions will result in erroneous listing determinations is well founded. It has happened before, but it need not happen again. The Service could prove him wrong by using provisions within the Endangered Species Act (ESA) that allow flexibility in these matters. Here are a few steps the Service could take to avoid the Chairman’s forecast:
Interpret the term “endangered species” the same way it did when it decided that the polar bear was a “threatened species.”
For the polar bear, when responding to a request from a Federal Court, the Service, while emphasizing that it was not creating a new policy, explained that its starting point for determining whether a species is endangered “is the general understanding that the phrase ‘in danger of extinction’ describes a species that is currently on the brink of extinction in the wild. In this context, to be “on the brink” means that the species is nearly extinct in the wild, after factoring in the life history and ecology of the species, the nature of the threats to the species, and the species’ response to those threats. This is a high bar.
Use special 4(d) rules to determine the prohibitions for newly listed threatened species.
Although the Service normally treats the prohibitions regarding threatened species to be exactly the same as the prohibitions for endangered species, this is not required under the ESA. If it chose to do so, the Service could issue special rules establishing the regulations it deems necessary and advisable for each threatened species, individually. By tailoring regulatory prohibitions for specific cases as needed, the Service could minimize future conflict by limiting unnecessary prohibitions.
Use the Secretary’s discretion to exclude areas as designated critical habitat to avoid future conflicts under section seven of the ESA.
Under the ESA, the Secretary must also “designate any habitat of such species which is then considered to be critical habitat.” This is important because, under section seven of the ESA, federal agencies, with the advice and guidance of the Service, must ensure that their actions are not likely to jeopardize the continued existence of a listed species or result in the “destruction or adverse modification” of critical habitat. However, Congress also explicitly required the Secretary, when making a critical habitat designation, to do so only “after taking into consideration the economic impact, and any other relevant impact of making the designation.” Equally important, Congress authorized the Secretary to exclude an area from critical habitat upon a determination that the benefits of such exclusion outweighed the benefits of inclusion, unless the Secretary determined that such exclusion would result in extinction of the species. Congress wanted the Secretary and the Service to understand the costs to human activity of making a critical habitat designation before making such a decision, thereby providing an opportunity to minimize potential future conflicts between species conservation and other relevant priorities.
Simply put, Congress has provided the Service with a variety of tools under the ESA intended to protect species and avoid unnecessary conflict with other relevant priorities such as economic growth or energy development. Unfortunately, the Service has been unwilling to effectively use these tools in the past, resulting in unneeded conflict. As the Service implements its mega settlement, it should actually use these tools to avoid the outcome predicted by Chairman Hastings.
