June 19, 2006
Forest Guardians Protect Informal Consultation
Findlaw link: Forest Guardians
Many years ago, I represented ASARCO in Cabinet Mountains Wilderness. We established a precedent that if, after a biological assessment, the agency modified its proposed federal action to avoid adverse impacts on a listed species, then a formal BiOp was not required. Our argument, inter alia, was that allowing mitigation planning during the biological assessment process created an incentive to mitigate adverse impacts.
The consultation regulations codified that approach as informal consultation and retained avoidance of formal consultation as an incentive to mitigate. Unfortunately, the problem is assuring that the mitigation plans or modifications are performed, not just promises. In Sierra Club v. Marsh, the 9th Circuit shut down the "empty promise" strategy. In Forest Guardians, the 9th Circuit has now dealt with the "you can't tell whether its an empty promise if I don't monitor" strategy. So those of us who think the incentive structure of informal consultation is good can sleep easier tonight.
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