Environmental Law Prof Blog

It's Too Damned Hot!

Planet Ark link reports that Shanghai, China's largest city, experienced its warmest winter since records began in 1873.   The average temperature over the past three months was 8.1 degrees Celsius (46.6 Fahrenheit), 2.6 degrees warmer than the previous average.  Director of Shanghai's climate centre, attributed the record temperatures to global warming.   

France also recorded its warmest autumn and winter for several centuries. Meteo France said average temperatures from December to February were 2.1 degrees Celsius (35.78 Fahrenheit) above average -- the highest since it began collating "full and reliable" data from 22 French cities in 1950. 

"This remarkably mild winter follows an exceptionally hot 2006 autumn, which has not been seen before in the 1950-2006 period and without doubt even for several centuries," Meteo France said in a statement.

---

---

Shanghai has Warmest Winter on Record

---

 

SHANGHAI - Shanghai, China's largest city, has experienced its warmest winter since records began in 1873, the official Xinhua news agency reported on Thursday.

 

The average temperature over the past three months was 8.1 degrees Celsius (46.6 Fahrenheit), 2.6 degrees warmer than the previous average, Xinhua quoted the Shanghai Meteorological Bureau as saying.

Lei Xiaotu, director of the bureau's climate centre, attributed the record temperatures to global warming.    

The warmer weather cut energy consumption in some parts of Shanghai, home to about 18 million people. It also helped the growth of vegetables, pushing down their prices, Lei said.

The warming trend could also have negative effects on human health and the environment, he said.    

Earlier this week, Shanghai authorities said a particularly serious plague of mosquitoes was expected this summer after the warm winter helped them breed.

The winter was unusually warm for China as a whole, with an average temperature of minus 2.6 degrees, 1.8 degrees higher than normal, Xinhua said. Last year was the country's warmest in more than half a century.

 

<>

---

France has Warmest Autumn, Winter for Centuries

---

 

PARIS - France recorded its warmest autumn and winter for several centuries, the meteorological office said on Thursday as the government warned it was worried about water supplies. Meteo France said average temperatures from December to February were 2.1 degrees Celsius (35.78 Fahrenheit) above average -- the highest since it began collating "full and reliable" data from 22 French cities in 1950.

 

"This remarkably mild winter follows an exceptionally hot 2006 autumn, which has not been seen before in the 1950-2006 period and without doubt even for several centuries," Meteo France said in a statement.

It added that northeast France was especially mild, with temperatures almost 3 C above normal in the three winter months. It said the outlook was for a hotter-than-normal spring.

A government committee held a monthly meeting on the water situation in France on Thursday and urged users, especially farmers, to be careful, saying rainfall between September and February was slightly lower-than-average.

"The water situation is worrying and one must remain attentive," Environment Minister Nelly Olin said, adding that water restrictions looked almost certain in some areas.

(Additional reporting by Paule Bonjean)   

<>

---

Check out Planet Ark on the web at www.planetark.com

Forest Service LRMPs Do Not Require ESA Consultation

Forest Guardians v. Forsgren, (C.A.10 (N.M.)) March 1, 2007: Endangered Species - Forest Service had no duty under Endangered Species Act to consult with Fish and Wildlife Service regarding Land and Resource Management Plan.

The Forest Service had no duty under the Endangered Species Act (ESA) to consult with the Fish and Wildlife Service on the question of whether the Land and Resource Management Plans (LRMPs) for national forests could jeopardize the continued existence of Canada Lynx, which had been listed as a "distinct population segment" under the ESA. The environmental groups, which sought to compel consultation, did not allege any activity, project, or program authorized, funded, or carried out by the Forest Service that might constitute "action" within meaning of the ESA.

As the ice they depend on for their way of life melts away around them, indigenous people of the Arctic are taking a crack at Washington in international court

New Standard reports:

Climate-Change Victims Chip Away U.S. Procrastination
Inuit cite global warming as human-rights violation
by Megan Tady, The NewStandard

While the rest of the world debated global warming, Roy Nageak watched the ice melt and recede in his Arctic backyard. Nageak, an Inuit, lives in the northernmost settlement in Alaska. Growing up, he recalls that there was "always ice." There were great pads of ice that were solid and many feet thick" ... But Nageak and other Inuit, who live a world away from burning smokestacks and traffic jams are among the first victims of global warming. And human rights groups say the Inuit case mirrors the plight of other populations around the globe who are expected to face the ramifications of climate change sooner, and more harshly, than the countries most responsible for the gases linked to global warming."Now, we are lucky to get four feet of ice because of what is happening outside our region," Nageak said. "It's a lifestyle that is prevalent in another society that is so far away from us, and it's affecting our way of life."

A 2004 Arctic Climate Impact Assessment by international scientists found that "climate changes are being experienced particularly intensely in the Arctic " and that the "Inuit face major threats to their food security and hunting cultures."

Nageak joined 62 other Inuit in Alaska and Canada in 2005 to hold the world's most-notorious polluter accountable. They filed a petition against the United States with the Inter-American Commission on Human Rights – one of the bodies set up to promote and protect human rights in the Americas. The petition argues that the impacts of climate change caused by the US violate the human rights of the Inuit.. The Inuit say their livelihoods, their spiritual life and their cultural identity are threatened because of the greenhouse-gas emissions of the United States and the government's failure to curb the damage.  Today, the Commission is holding a one-hour hearing to investigate the relationship between human rights and climate change in North and South America.

In a letter to the Commission, Sheila Watt-Cloutier, former director of the Inuit Circumpolar Council leading the Inuit charge, listed many of the ways climate change has jeopardized the Inuit way of life: "Because of the loss of ice and snow, communities have become isolated from one another; hunting, travel and other subsistence activities have become more dangerous or impossible; drinking-water sources have been jeopardized; [and] many coastal communities are already threatened or being forced to relocate." In a statement to the press yesterday, Watt-Cloutier said, "We offer our testimony as a warning to humanity that, while global warming has hit Arctic peoples first, changes are coming for everyone."

Although the Inuit are the first indigenous population to make such a formal claim, human-rights activists say that as the impacts of climate change increase, so too will its toll on human life. And with it, they warn, will come populations seeking redress from the world's big polluters. I don't think there's any doubt we'll see more of this," said David Hunter, a senior advisor of the Center for International Environmental Law (CIEL). "As the causal link becomes clearer… between climate change and specific injuries, we're going to see people that are injured looking for justice somewhere." CIEL, along with the law firm Earthjustice, worked with the Inuit to submit the petition. 

<>

Growing up in the Arctic, Roy Nageak's father taught him how to fish and hunt on the ice. Nageak always expected to do the same for his son, but climate change has made the ice thinner and less predictable, and the animals and fish they hunt more elusive. Now I have a son who is 18 years old… and I need to let him learn how to be in harmony with nature," Nageak said. "But without the ice, the knowledge that was passed on to me from my father… it's not there."  Nageak told TNS that he is frustrated that he "has no control" over how the rest of the world, particularly the US government, chooses to operate.  Washington has refused to join international commitments to address climate change, and it has offered only modest attempts to curb greenhouse-gas emissions while making plans for more coal-burning power plants, a major source of carbon dioxide. 

The US State Department declined to comment.

"It really is an issue of equity," said Michelle Leighton, director of the Human Rights Program at the University of San Francisco School of Law. "At the global level, the wealthiest countries have caused the greatest harm and the poorest – the small island-nation states or populations in the south of India, or the Inuit – are going to suffer because of the profits made by the wealthier part of the world."

A 2006 government-commissioned report in the United Kingdom called the Stern Review predicted that even if global warming is kept to two-degrees Celsius above pre-industrial levels, or lower, there will still be "serious impacts" on human life and the environment. For instance, the report forecast the disappearance of drinking water in the South American Andes and parts of Southern Africa and the Mediterranean, and up to 10 million people affected by yearly coastal flooding. 

Another 2006 report by the Working Group on Climate Change and Development, a coalition that includes the World Wildlife Federation and Greenpeace, documented that climate change is already affecting countries in South America. For instance, the group explained how glacial melt documented in Peru, Ecuador and Bolivia will threaten water supplies and put populations at risk.

<>

Yifat Susskind, communications director of the human-rights group Madre, said indigenous groups are most vulnerable to climate change. "A lot of ancestral territories are some of the most impacted, in part, because they are some of the most delicate ecosystems that we know, and also because their economies, cultures and spiritual systems are very directly rooted to the territory that they live on," Susskind told TNS.
Susskind also said that because of the way many societies are structured, women will suffer most from the impacts of climate change. "Whenever you have a situation where resources are made scarce – arable land, clean water, sufficient food – it is usually the women who sacrifice," she said. "If there's not enough food, it is usually the women and girls who are going to eat last and least."

The Inuit petition claims that the United States has violated human rights affirmed in the 1948 American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. The petition is urging the Inter-American Commission recommend that the

United States adopt mandatory emissions limits and cooperate with the international community on climate change. The Inuit are also asking that the United States help them adapt to their changing environment.   Susskind noted that the Inter-American Commission does "not have any teeth" and can only make recommendations. Nevertheless, Susskind and others interviewed by TNS agree that a decision by the Commission linking the US's greenhouse-gas emissions with human-rights violations would still set an important precedent and give the international community another tool to pressure the

United Statesover global warming. Susskind and Leighton also said the decision could possibly be used to bolster lawsuits in the United States. For instance, in 2006, California sued six car companies in an attempt to hold them accountable for their contributions to global warming and its effects on the state's environment, economy, agriculture and public health.  A hearing is scheduled for March 6. 

Hunter said linking climate change with human rights helps to put a human face on the problem. "For many years, the debate around climate change has been a rather obtuse and almost theoretical debate about sea-level rise and temperature change," he said. "But it's sort of antiseptic until you put it in the terms of impacts on real people, real cultures and their way of living – and thus their rights."  Should the Commission recognize the human rights aspect of climate change, Leighton said it would also send a powerful message to the public. "The American public needs to be aware that what we're doing [to the environment] doesn't just have some far away environmental impact that maybe our grandchildren will never see," she said. "It's here. It's on our continent. It's in our neighbors' backyard, and we are the cause. And we need to change our way of life."

Supreme Court vacates Exxon punitive damages award

Based on the Phillips Morris case Findlaw link , the Supreme Court has vacated a substantial punitive damages award against Exxon.  In this Louisiana case, the jury awarded $ 1 billion punitive damages, which the trial court upheld based on Exxon's "reprehensible conduct" in failing to notify workers and community members exposed to health risks from naturally occurring radioactive materials deposited from pipe scaling operations.  The plaintiffs had not alleged physical injury, but only economic harm, for which the jury awarded $ 56 million in remediation costs.  The punitive damages award had been reduced to $ 112 million because of due process concerns about its size.  But Exxon sought a new trial because the jury was allowed to consider evidence about health risks and Exxon's failure to notify.  It seems Exxon is certainly deriving a lot of benefit (more than $ 3.5 billion in the last 3 months) from the Supreme Court's new substantive due process jurisprudence.

2007 WL 559870 (U.S.La.)

EXXON MOBIL CORPORATION V. GREFER, JOSEPH, ET AL.No. 05-1670.Feb. 26, 2007.The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the Court of Appeal of Louisiana, Fourth Circuit for further consideration in light of Philip Morris USA v. Williams, 549 U. S. ___ (2007). Justice Alito took no part in the consideration or decision of this petition.

---

Exxon Valdez Damage Award Cut In Half

SAN FRANCISCO, Dec. 22, 2006

---

(AP) A federal appeals court on Friday cut in half a $5 billion jury award for punitive damages against Exxon Mobil Corp. in the 1989 Valdez oil spill that smeared black goo across roughly 1,500 miles of Alaskan coastline.

The case, one of the nation's longest-running, non-criminal legal disputes, stems from a 1994 decision by an Anchorage jury to award the punitive damages to 34,000 fishermen and other Alaskans. Their property and livelihoods were harmed when the Valdez oil tanker struck a charted reef, spilled 11 million gallons of crude oil.

It's the third time the 9th U.S. Circuit Court of Appeals court ordered the Anchorage court to reduce the $5 billion award, the nation's largest at the time, saying it was unconstitutionally excessive in light of U.S. Supreme Court precedent.

This time, in its 2-1 decision, the court ordered a specific amount in damages, while its previous rulings demanded a lower court to come up with its own figures.

"It is time for this protracted litigation to end," Chief Judge Mary Schroeder and Judge Andrew Kleinfeld wrote.

U.S. District Judge H. Russel Holland of Anchorage begrudgingly complied in 2002, reducing damages to $4 billion. Irving, Texas-based Exxon again appealed.

The following year, the appeals court ordered Holland to revisit his decision, this time balancing it against a new 2003 Supreme Court ruling that said punitive damages usually could not be more than nine times general damages. The Anchorage jury awarded $287 million in general damages — and issued punitive damages that were 17 times that amount.

Holland, appointed by President Reagan in 1984, declared Exxon's conduct "reprehensible" and set the figure at $4.5 billion plus interest, ruling that the Supreme Court's precedent did not directly apply to the case.

Exxon again appealed, and argued that it should have to pay no more than $25 million in punitive damages, which are meant to punish a company for misconduct.

The company, whose $36.1 billion in earnings last year were the highest ever by any U.S. corporation, said it has spent more than $3 billion to settle federal and state lawsuits and to clean the Prince William Sound area. The company earned about $5 billion when the spill occurred.

In October, Exxon Mobil reported earnings of $10.49 billion in the third quarter, the second-largest quarterly profit ever recorded by a publicly traded U.S. company.

Exxon did not immediately return calls seeking comment.

David Oesting, the lead lawyer from Anchorage representing the plaintiffs, said he was considering whether to ask the court to rehear the case with 15 judges or to go to the U.S. Supreme Court.

"Exxon could decide to continue grappling with us, and we can decide we want to reach for more," Oesting said. "And, of course, what one does depends on what the other does."

In 1994, a federal jury found recklessness by Exxon and the captain of the Valdez, Joseph Hazelwood, who caused the tanker to run aground. That finding of malfeasance made Exxon liable for punitive damages.

The disaster, the worst oil spill in U.S. history, prompted Congress in 1990 to pass a law banning single-hulled tankers like the Valdez from domestic waters by 2015.

Frank Mullen, board member of United Cook Inlet Drift Association, which represents a fleet of 600 Alaskan salmon gillnetters, said many of the plaintiffs in the case want it to end. "Exxon wins on this one because they've literally worn people out and I think most people just want to get this over with."

The plaintiffs alleged Hazelwood ran the ship into a reef while drunk, and that Exxon knew he had a drinking problem but left him in command of tankers.

The court majority said Exxon should pay punitive damages that equal five times the amount of general damages the jury awarded in addition to the more than $200 million the oil giant paid to Alaska natives, fish processors and other businesses and fishing interests. That equals $2.5 billion.

The majority said it could have demanded a higher payment, but Exxon took prompt action to clean up the mess and to compensate victims.

"These mollify, at least to some degree, the reprehensibility in economic terms of Exxon's original misconduct," the court ruled.

In dissent, Judge James Browning ruled that $5 billion verdict should remain intact, writing there "is no principled means by which this award should be reduced."

Bad Biop Kills Incidental Take Statement

Oregon Natural Resources Council v. Allen (9th Cir.) February 23, 2007:

Withdrawal of a portion of a favorable biological opinion (BiOp), which initially approved timber sales impacting suitable habitat for the northern spotted owl, rendered the Fish and Wildlife Service's (FWS) incidental take statement authorizing the taking of "all" northern spotted owls associated with full timber harvest invalid under the Endangered Species Act (ESA). The incidental take statement was broader than the project and allowed for the take of more spotted owls than were affected by the remaining portions of the BiOp.

Kristen Boyles, Earthjustice, Seattle, WA, for the plaintiffs-appellants.
R. Justin Smith, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., for the defendants-appellees.
Mark C. Rutzick, Portland, OR, for amicus curiae American Forest Resource Council.

Before Goodwin, Tashima, and Graber, Circuit Judges.

OPINION
TASHIMA, Circuit Judge.
*1  As a result of this court's opinion in Gifford Pinchot Task Force v. United States Fish & Wildlife Service, 378 F.3d 1059 (9th Cir.2004), the Fish and Wildlife Service ("FWS") voluntarily reinitiated consultation with two federal agencies regarding the impact of a portion of a proposed timber harvest on the endangered northern spotted owl. The FWS accordingly withdrew its favorable Biological Opinion ("BiOp" or "2001 BiOp") regarding that portion of the timber harvest, but did not withdraw the accompanying Incidental Take Statement, which would authorize the taking of "all" northern spotted owls associated with the full timber harvest. The Oregon Natural Resources Council and several other conservation groups (collectively, "ONRC") challenge the validity of this Incidental Take Statement. We have jurisdiction under 28 U.S.C. § 1291. We hold that the Take Statement is invalid because: (1) the withdrawal of a portion of the BiOp leaves the Incidental Take Statement without an underlying factual predicate; (2) the Incidental Take Statement presents a non-numerical measure of take without explaining why no number was provided; and (3) the Incidental Take Statement sets a measure of take that does not allow for reinitiation of consultation.
I. BACKGROUND
The Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, evidences a congressional intent to afford endangered species the highest of priorities. TVA v. Hill, 437 U.S. 153, 194, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost." Id. at 184. To accomplish this ambitious goal, the ESA sets forth a comprehensive program to limit harm to endangered species within the United States. Section 9 of the ESA establishes a blanket prohibition on the taking [FN1] of any member of a listed endangered species. 16 U.S.C. § 1538(a)(1)(B). Section 7 affirmatively commands each federal agency to "insure that any action authorized, funded, or carried out" by the agency "is not likely to jeopardize the continued existence of any endangered species ... or result in the destruction or adverse modification of habitat of such species." 16 U.S.C. § 1536(a)(2). However, § 7 carves out limited exceptions for federal agencies and certain statutorily-defined "applicants," allowing those contemplating action that may harm endangered species to obtain a limited exemption from penalties under certain circumstances. [FN2] 16 U.S.C. § 1536(a)-(c), (o ); 50 C.F.R. § 402.02.
Under § 7, if any listed (or proposed listed) species may be present in the area of the proposed action, the federal agency (the "action agency") must conduct a biological assessment in order to determine the likely effect of its proposed action on the species. 16 U.S.C. § 1536(c)(1); see also 50 C.F.R. § 402.02. If the action agency concludes that its proposed action may affect listed species or critical habitat, it must initiate consultation with the FWS or the National Marine Fisheries Service. See 50 C.F.R. § 402.14.
*2  In 2001, the Bureau of Land Management and the Forest Service ("agencies") desired to conduct approximately 75 timber sales on 64,006 acres of federally-managed land in the Pacific northwest, primarily within the Rouge River Basin in Oregon. These forests also house the northern spotted owl, strix occidentalis caurina, a listed threatened species. See 50 C.F.R. § 17.11(h). The agencies conducted a biological assessment of the proposed sales and concluded that the sales may affect the northern spotted owl, as well as three other listed species. The agencies initiated formal consultation with the FWS.
During the consultation process, the FWS assessed the proposed action for its potential to harm the spotted owl and other endangered species and their critical habitat. See 50 C.F.R. § 402.14(g). The FWS summarized its findings in a BiOp, issued in October 2001. See 50 C.F.R. § 402.14(g)-(h). The BiOp found that the proposed timber harvest would remove 22,227 acres of forest designated as spotted owl suitable habitat (i.e., habitat suitable for nesting, roosting and/or foraging). The timber harvest would impact 10,443 acres of spotted owl critical habitat, [FN3] removing or downgrading 5,383 acres of nesting, roosting, and foraging critical habitat, degrading 2,168 acres of nesting, roosting, and foraging critical habitat, removing 563 acres of dispersal [FN4] critical habitat and degrading 2,329 acres of dispersal critical habitat. Nevertheless, the BiOp concluded, the anticipated harvest "[was] not likely to jeopardize the existence of the spotted owl ... and [was] not likely to destroy or adversely modify designated critical habitat for the spotted owl."
When the FWS concludes that an action will not jeopardize the existence of a listed species or adversely modify its habitat, but the project is likely to result in incidental takings of listed species, the FWS must provide a written statement with the BiOp that authorizes such takings. 16 U.S.C. § 1536(b)(4), (o ); Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1233 (9th Cir.2001). The Incidental Take Statement must: (1) specify the impact of the incidental taking on the species; (2) specify the "reasonable and prudent measures" that the FWS considers necessary or appropriate to minimize such impact; (3) set forth "terms and conditions" with which the action agency must comply to implement the reasonable and prudent measures (including, but not limited to, reporting requirements); and (4) specify the procedures to be used to handle or dispose of any animals actually taken. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i). As long as any takings comply with the terms and conditions of the Incidental Take Statement, the action agency is exempt from penalties for such takings. 16 U.S.C. § 1536(o )(2). Thus, a BiOp with a no-jeopardy finding effectively green-lights the proposed action under the ESA, subject to the Incidental Take Statement's terms and conditions. See Bennett v. Spear, 520 U.S. 154, 169-71, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (noting that, while a BiOp is technically advisory only, an agency disregards the BiOp "at its own peril").
*3  However, the ESA's implementing regulations require the agencies completing the project to report back to the FWS on the action's progress and its impact on the species "[i]n order to monitor the impacts of incidental take." 50 C.F.R. § 402.14(i)(3). The agency must immediately reinitiate consultation with the FWS if the amount or extent of incidental taking is exceeded. 50 C.F.R. §§ 402.14(i)(4), 402.16(a). [FN5]
The 2001 BiOp's accompanying Incidental Take Statement authorized the "incidental take of all spotted owls associated with the removal and downgrading of 22,227 acres of suitable spotted owl habitat." The Reasonable and Prudent Measures include the following statement: "The Service believes that the following reasonable and prudent measures are necessary and appropriate to minimize the impacts of incidental take of the spotted owl ... [:] Provide appropriate amounts of spotted owl dispersal and suitable habitat in a condition and distribution that facilitates spotted owl movement across the landscape." The Terms and Conditions specify procedures for handling species specimens and require that certain of the timber harvest projects be reviewed for consistency with the BiOp. The Terms and Conditions also require the agencies to report annually on the "actual impacts of the proposed projects," and state that "[i]f take is exceeded, consultation will have to be reinitiated."
II. PROCEEDINGS BELOW
In 2003, ONRC commenced this action, challenging the validity of the BiOp and the Incidental Take Statement. The district court granted defendants' motion for summary judgment in February 2004, and ONRC appealed.
While this case was pending on appeal, we decided Gifford Pinchot. We held that the definition of "destruction or adverse modification" of critical habitat employed by the FWS in assessing jeopardy to the northern spotted owl violated the ESA. Gifford Pinchot, 378 F.3d at 1069-75. The definition in use "set[ ] the bar too high" by finding adverse modification only where proposed actions impacted "both the survival and recovery of a listed species." Id. at 1069 (emphasis added). We ordered this case remanded to the district court for consideration in light of Gifford Pinchot's relevant holdings. See Or. Natural Res. Council v. Allen, 124 Fed. App'x 555 (9th Cir. Mar.9, 2005).
The FWS subsequently acknowledged that Gifford Pinchot rendered a portion of the 2001 BiOp invalid. It voluntarily reinitiated consultation on the land designated as northern spotted owl critical habitat, represented by the FWS to be 5,383 acres. Based on this action, the district court found that the only live issue presented was the continuing validity of the Incidental Take Statement. The district court concluded that the original Incidental Take Statement remained valid despite the partial withdrawal of the BiOp, and again granted summary judgment in favor of the FWS. ONRC again appeals the validity of the Incidental Take Statement, arguing that: (1) the FWS' voluntary reinitiation of consultation on some of the timber sales approved by the BiOp renders the Incidental Take Statement invalid; and (2) the Incidental Take Statement fails to quantify adequately the authorized take of northern spotted owls or explain why no number was provided.
III. ANALYSIS
A. Standard of Review
*4  [1] The BiOp and its accompanying Incidental Take Statement represent final agency action subject to judicial review. Bennett, 520 U.S. at 177-78. As the ESA does not itself specify a standard of review of its implementation, we apply the general standard of review of agency action established by the Administrative Procedure Act ("APA"). See id.; 5 U.S.C. §§ 701-706. The Incidental Take Statement is thus subject to review under the arbitrary and capricious standard found in the APA. See 5 U.S.C. §§ 704, 706. We review the district court's grant of summary judgment de novo. N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir.2006). Thus, we must determine whether there is a rational connection between the facts found and the choices made by the FWS and whether it has committed a clear error of judgment. Ariz. Cattle Growers' Ass'n, 273 F.3d at 1243.
Review under the arbitrary and capricious standard is to be "narrow," but  "searching and careful." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989). The Supreme Court has explained that an agency action is arbitrary and capricious if "the agency has ... entirely failed to consider an important aspect of the problem." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). A court cannot, however, substitute its judgment for that of the agency or merely determine that it would have decided an issue differently. Marsh, 490 U.S. at 377.
B. Withdrawal of a Material Portion of the BiOp Renders the Incidental Take Statement Invalid.
ONRC contends that reinitiating consultation on the portion of the timber sales impacting northern spotted owl critical habitat materially changed the scope of the BiOp, necessitating a new Incidental Take Statement. We agree. Even a cursory review of the regulations governing formal consultation demonstrates that Incidental Take Statements supplement BiOps, and were not meant to stand alone.
[2] The FWS must issue an Incidental Take Statement if the BiOp concludes no jeopardy to listed species or adverse modification of critical habitat will result from the proposed action, but the action is likely to result in incidental takings. 16 U.S.C. § 1536(b)(4); 50 C.F.R. § 402.14(i); Ariz. Cattle Growers' Ass'n, 273 F.3d at 1242. Both the BiOp and the Incidental Take Statement must be formulated by the FWS during the formal consultation process; indeed, the regulations specifically require the FWS to provide the Incidental Take Statement "with the biological opinion." 50 C.F.R. § 402.14(g), (i)(1).
The Incidental Take Statement must be associated with an underlying BiOp because the Incidental Take Statement's primary function is to authorize the taking of animals incidental to the execution of a particular proposed action. The approval is effectively conveyed through the BiOp's "no jeopardy" determination. See 50 C.F.R. § 402.14(g)-(h); Bennett, 520 U .S. at 169- 71. Without the "no jeopardy" determination contained in the underlying BiOp, the Incidental Take Statement potentially pre-authorizes take for an action that could subsequently be determined to jeopardize the existence of an endangered species. Such a result would be contrary to the ESA's fundamental purpose and scheme. See 16 U.S.C. §§ 1531(b)-(c), 1538(a)(1)(B).
*5  Moreover, under the ESA's implementing regulations, in order to be considered a proper taking, the taking must be incidental to the purpose of the action. 50 C.F.R. § 402.02; see also 16 U.S.C. § 1536(b)(4) (providing for authorization of takings incidental to approved agency actions). Without understanding the scope and purpose of the action itself--information contained in the BiOp--there is no way to know whether the take being authorized is properly "incidental."
[3] The facts of this case acutely demonstrate the Incidental Take Statement's necessarily auxiliary nature. Here, the 2001 BiOp initially approved timber sales impacting 22,227 acres of suitable habitat for the northern spotted owl. The FWS has withdrawn its approval of the logging of at least 5,383 acres of critical habitat. However, the accompanying Incidental Take Statement--contained within the 2001 BiOp--authorized the taking of all spotted owls associated with the removal or downgrading of 22,227 acres of suitable spotted owl habitat, which may include most or all of the critical habitat acreage at issue. Thus, as it stands, the Incidental Take Statement is now broader than the project and allows for the take of more spotted owls than are affected by the remaining portions of the BiOp. Allowing the Incidental Take Statement to stand alone would also presuppose the reapproval of the timber harvest on spotted owl critical habitat, even though the FWS has acknowledged that the action's propriety must be reevaluated in the light of the proper definition of destruction or adverse modification of critical habitat.
Because there is no rational connection between the authorization of take and the scope of the underlying proposed action, we conclude that the Incidental Take Statement is arbitrary and capricious. See Ariz. Cattle Growers' Ass'n, 373 F.3d at 1243.
C. The Incidental Take Statement Is Invalid Because the FWS Failed to Establish that it Could Not Set a Numerical Measure of Take.
[4] Congress has clearly declared a preference for expressing take in numerical form, and an Incidental Take Statement that utilizes a surrogate instead of a numerical cap on take must explain why it was impracticable to express a numerical measure of take. Because the Incidental Take Statement at issue contains no numerical cap on take and fails to explain why it does not, it violates the ESA.
Section 7 of the ESA requires Incidental Take Statements to specify the  "impact" of the incidental takings on the species. 16 U.S.C. § 1536(b)(4)(i). In its discussion of § 7(b)(4), Congress indicated that it preferred the Incidental Take Statement to contain a numerical value: "Where possible, the impact should be specified in terms of a numerical limitation on the Federal agency or permittee or licensee." H.R.Rep. No. 97-567, at 27 (1982), reprinted in 1982 U.S.C.C.A.N. 2807, 2827. Congress recognized, however, that a numerical value would not always be available: "The Committee recognizes ... it may not be possible to determine the number of eggs of an endangered or threatened fish which will be sucked into a power plant when water is used as a cooling mechanism. The Committee intends only that such numbers be established where possible." Id.
*6  Accordingly, we have recognized that the permissible level of take ideally should be expressed as a specific number. See Ariz. Cattle Growers' Ass'n, 273 F.3d at 1249 (referencing, as examples of numerical limitations, several cases in which the Incidental Take Statements stated the specific number of species members that would be affected). Further, if it does employ some other measure, "the Fish and Wildlife Service must establish that no such numerical value could be practically obtained." Id. at 1250.
Contrary to the FWS' argument, "quantifying" take in terms of habitat acreage lost is simply not the type of numerical limitation on take contemplated by Congress or this court's precedent. Moreover, the BiOp offers no explanation of why the FWS was unable numerically to quantify the level of take of northern spotted owls. The BiOp's appendix declares that "spotted owl survey data are currently out-of-date and surveys have been discontinued or reduced." The FWS, however, never states that it is not possible to update the survey data in order to estimate the number of takings, only that it has not actually done the surveys. This does not establish the numerical measure's impracticality. We therefore conclude that the FWS' unexplained failure to comply with this requirement renders the Incidental Take Statement invalid. See id.; cf. Ctr. for Biological Diversity v. Bureau of Land Mgmt., 422 F.Supp.2d 1115, 1137-38 (N.D.Cal.2006) (finding that the FWS did not adequately establish that no numerical value of take of desert tortoises could practically be obtained where Incidental Take Statement relied on fact that the Service simply had not estimated the number of desert tortoises in the action area); Natural Res. Def. Council, Inc. v. Evans, 279 F.Supp.2d 1129, 1184-85 (N.D.Cal.2003) (rejecting Incidental Take Statement that failed to quantify numerically the authorized incidental take of some twenty endangered species and offered no evidence that it was impractical to obtain such numerical estimates).
D. The Incidental Take Statement Does Not Provide for Reinitiation of Consultation.
[5] As discussed above, Congress preferred take "be specified in terms of a numerical limitation." H.R.Rep. No. 97-567, at 27 (1982). A surrogate is permissible if no number may be practically obtained. The chosen surrogate, however, must be able to perform the functions of a numerical limitation. In particular, Incidental Take Statements "set forth a 'trigger' that, when reached, results in an unacceptable level of incidental take, invalidating the safe harbor provision [of the ESA], and requiring the parties to re-initiate consultation." Ariz. Cattle Growers' Ass'n, 273 F.3d at 1249. Because it would allow the take of "all spotted owls" associated with the project, the Incidental Take Statement would not allow for reinitiation of consultation and is therefore not a proper surrogate.
We have previously invalidated Incidental Take Statements that could not adequately trigger reinitiation of consultation. For example, in Arizona Cattle Growers' Ass'n, we invalidated an Incidental Take Statement because it did not contain measurable guidelines to determine when incidental take would be exceeded. See id. at 1249-51. In that case, the FWS formally consulted with the Bureau of Land Management regarding the proposed issuance of grazing permits. Id. at 1233-34. The FWS issued a BiOp containing several Incidental Take Statements. One Incidental Take Statement, noting that it would "be difficult to detect" incidental takings of loach minnows from a particular allotment, instead attempted to define the threshold of impermissible take using habitat characteristics. Id. at 1248. The Incidental Take Statement stated that it would consider the permissible level of take to be exceeded if "[e]cological conditions do not improve under the proposed livestock management" plan. Id. The Incidental Take Statement then listed various components of the ecological landscape, the "improvement" of which would count as improving "ecological conditions." Id. at 1249.
*7  We explained that ecological conditions could be used as a surrogate for defining the amount or extent of take if the conditions were linked to the take of the protected species. Id. at 1250. If, however, the FWS chooses to employ a non-numerical surrogate, the surrogate must not be so general that the applicant or the action agency cannot gauge its level of compliance. Id. at 1250-51. The Incidental Take Statement faltered because its directive to "improve" ecological conditions was too vague for the permit applicant or the Bureau of Land Management to measure its performance. Id. at 1250. Instead, the Take Statement purported to charge the applicant with the general ecological improvement of 22,000 acres of land. Id. at 1251. Because it did not set a clear standard for determining when the authorized level of take had been exceeded, we held the Incidental Take Statement to be arbitrary and capricious. Id.; see also Natural Res. Def. Council, Inc., 279 F.Supp.2d at 1185-87 (rejecting Incidental Take Statement which purported to set the impermissible level of take at "any individual" because, inter alia, such a take statement could not trigger reinitiation of consultation, as it was extremely unlikely that the taking of a single marine animal would actually be detected); Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 235 F.Supp.2d 1143, 1160 (W.D.Wash.2002) (finding that plaintiffs were likely to succeed on their claim that an incidental take surrogate that, "in effect, amounts to the project's required work conditions," was invalid).
The Incidental Take Statement in this case suffers from the same infirmity as the Incidental Take Statement in Arizona Cattle Growers' Ass'n in that it too fails to set forth a trigger that would invalidate the safe harbor provision and reinitiate the consultation process. Here, the authorized level of take, "all spotted owls associated with the removal and downgrading of 22,227 acres of suitable spotted owl habitat," cannot be reached until the project itself is complete. Even if the actual number of takings of spotted owls that occurred during the project was considerably higher than anticipated, the Incidental Take Statement would not permit the FWS to halt the project and reinitiate consultation. Instead, the permissible level of take is coextensive with the project's own scope. [FN6] The Incidental Take Statement and BiOp are rendered tautological, they both define and limit the level of take using the parameters of the project. [FN7]
The FWS argues that, despite our holding in Arizona Cattle Growers' Ass'n, Incidental Take Statements need not allow for reinitiation of consultation. Instead, Incidental Take Statements serve only to lift § 9's bar on take. This interpretation of § 7(b)(4) ignores the limited nature of the take statement's exemption from penalty. Further, it reads out the statutory and regulatory provisions for and congressional expectations of the monitoring of incidental take during the project.
*8  As discussed above, § 9 of the ESA issues a blanket prohibition on the taking of any member of a listed species. 16 U.S.C. § 1538(a)(1)(B). Section 7 and its implementing regulations affirm that this prohibition applies to federal agencies, and provide carefully limited exemptions. 16 U.S.C. § 1536(o )(2). Throughout the biological assessment and formal consultation process, it is incumbent upon the agency to show that the project will not jeopardize or adversely affect the critical habitat of any listed species. See 50 C.F.R. §§ 402.12, 402.14. Generally, the project may be exempt from the blanket prohibition on takings only if it does not place any listed species in jeopardy and does not adversely modify listed species' critical habitat. 16 U.S.C. §§ 1536(b)(4), (o )(2).
The exemption from liability for take is further limited by the ESA's implementing regulations. "Incidental take" must be truly incidental and may not be the purpose of the action. 50 C.F.R. § 402 .02. The take must be in compliance with the terms and conditions of the Incidental Take Statement. 50 C.F.R. § 402.14(i)(5). Finally, the action agency must reinitiate consultation with the FWS if: (1) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (2) a modification to the action affects listed species or critical habitat in a way that was not considered in the BiOp; or (3) newly listed species or newly designated critical habitat may be affected by the identified action. 50 C.F.R. § 402.16(b)-(d). Thus, the ESA and its regulations seek to circumscribe and limit the Incidental Take Statement's exemption from liability.
The regulations governing Incidental Take Statements also provide for ongoing monitoring of incidental take by the action agency and the FWS. 50 C.F.R. § 402.14(i)(3) instructs the action agency or applicant to monitor the impacts of incidental take by reporting on the project's impact on the species "as specified in the incidental take statement." The regulation further instructs the action agency to reinitiate consultation immediately if the amount or extent of specified take is exceeded in the course of the action. 50 C.F.R. § 402.14(i)(4). The FWS' own Consultation Handbook terms this point "reinitiation level." Final ESA Section 7 Consultation Handbook, March 1998 at 4-47. Thus, "[t]he terms of an Incidental Take Statement do not operate in a vacuum. To the contrary, they are integral parts of the statutory scheme, determining, among other things, when consultation must be reinitiated." Ariz. Cattle Growers' Ass'n, 273 F.3d at 1251.
Finally, the House Committee Report regarding the addition of § 7(b)(4) shows that, contrary to the FWS' argument, Congress anticipated that Incidental Take Statements would allow for reinitiation of consultation: "If the specified impact on the species is exceeded, the Committee expects that the Federal agency or permittee or licensee will immediately reinitiate consultation since the level of taking exceeds the impact specified in the initial Section 7(b)(4) statement." H.R.Rep. No. 97-567, at 27 (1982).
*9  Authorizing the take of "all spotted owls," without any additional limit, is inadequate because it prevents the action agencies from fulfilling the monitoring function the ESA and its implementing regulations clearly contemplate. The FWS' interpretation of the function of an Incidental Take Statement reads out of the statute the possibility of a revived consultation, rendering the monitoring and reinitiation provisions of the regulations meaningless. Its interpretation would impermissibly expand the Incidental Take Statement's liability exemptions beyond the scope that has been established by Congress and by the ESA's implementing regulations.
The FWS strenuously argues that its decision to employ habitat as a surrogate for take is entitled to Chevron deference and may not be disturbed by the Court. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We agree that the FWS, in fashioning a new Incidental Take Statement, may, in its discretion, certainly rely on a surrogate method, such as habitat, to determine the timber harvest's impact on the spotted owl. The salient point here, however, is that no matter what kind of limitation on take the FWS chooses to place in the Incidental Take Statement, it cannot be so indeterminate as to prevent the Take Statement from contributing to the monitoring of incidental take by eliminating its trigger function.
IV. CONCLUSION
We conclude that the Incidental Take Statement at issue in this case is arbitrary and capricious on several counts. First, because the underlying BiOp has been withdrawn, the Incidental Take Statement lacks a rational basis. Second, the Take Statement fails to provide a numerical limit on take without explaining why such a limit is impracticable to obtain and employ. Third, this Circuit has previously invalidated Incidental Take Statements that could not adequately trigger reinitiation of consultation. The Incidental Take Statement as currently drafted could never trigger the reinitiation of consultation because, by definition, the permissible take level is coextensive with the scope of the project.
For all these reasons, we reverse the judgment of the district court and remand to the district court with instructions to grant summary judgment in favor of plaintiffs regarding the invalidity of the Incidental Take Statement.
REVERSED and REMANDED with instructions.

FN1. The ESA defines the term "take" as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). "Harm," in this context, is "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering." 50 C.F.R. § 17.3; Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 691, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995).

FN2. Section 10 of the ESA also authorizes the issuance of incidental take permits to private parties. 16 U.S.C. § 1539. Historically, however, only a small number of § 10 permits actually issue. See Ramsey v. Kantor, 96 F.3d 434, 442 n. 15 (9th Cir.1996). Section 7 also establishes a limited procedure by which agencies may attempt to exempt a project from the ESA by applying to the Endangered Species Committee. See 16 U.S.C. § 1536(e)-(p); see generally Portland Audubon Soc'y v. Endangered Species Comm., 984 F.2d 1534 (9th Cir.1993) (discussing

Committee's role).

FN3. The FWS has designated a total of approximately 6.9 million acres of forest lands as the northern spotted owl's "critical habitat," i.e.:

(i) the specific areas within the geographical area occupied by the species ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management consideration or protection; and (ii) specific areas outside the geographical area occupied by the species ... upon a determination ... that such areas are essential for the conservation of the species.

16 U.S.C. § 1532(5)(A); see Endangered and Threatened Wildlife and Plants; Determination of Critical Habitat for the Northern Spotted Owl, 57 Fed.Reg. 1,796, 1,809 (Jan. 15, 1992).

FN4. According to the FWS, dispersal habitat consists of trees of adequate size and canopy closure to protect owls from predators as they move within their range. 57 Fed.Reg. at 1,798. Although it may be marginal or unsuitable for nesting, roosting or foraging, dispersal habitat serves to link owl subpopulations and blocks of owl nesting habitat. Id.

FN5. The action agency must also reinitiate consultation with the FWS if: (1) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (2) a modification to the action affects listed species or critical habitat in a way that was not considered in the BiOp; or (3) newly listed species or newly designated critical habitat may be affected by the identified action. 50 C.F.R. § 402.16(b)-(d).

FN6. Indeed, as discussed above, it actually exceeds the scope of the project, as the BiOp has been withdrawn with respect to the portion of the proposed harvest within the northern spotted owl's critical habitat.

FN7. This shortfall is exacerbated by the Incidental Take Statement's failure to provide any meaningful measures to attempt to minimize incidental takings associated with the project. As a part of a take statement, the FWS must specify "those reasonable and prudent measures that the [Service] considers necessary or appropriate to minimize such impact." 16 U.S.C. § 1536(b)(4)(ii); see also 50 C.F.R. § 402.14(i)(1)(ii). The measures may not alter the project's scope, but should be "minor changes" to the project aimed at minimizing take, as required by § 7 of

the ESA. 50 C.F.R. § 402.14(i)(2). The FWS Section 7 Consultation Handbook provides as examples concrete activities that may allow those implementing the project to reduce the number of animals taken, such as education of employees about the species, reduction of predation of the species, removal or avoidance of the species, or monitoring. Final ESA Section 7 Consultation Handbook, March 1998 at 4-50.

Here, the Incidental Take Statement sets out only one Reasonable and Prudent Measure related to the spotted owl. It states that, to minimize take, a reasonable and prudent measure would be to "[p]rovide appropriate amounts of spotted owl dispersal and suitable habitat in a condition and distribution that facilitates spotted owl movement across the landscape." We are unable to extract any meaning from this sentence; neither the Forest Service, the Bureau of Land Management, nor the prospective loggers, will be able magically to "provide" habitat for the spotted owls.

Spirit of the Eagle

This blog is devoted principally to the professional or academic aspects of environmental law, policy, science, and ethics.  But like any blogger, I do have a life.  Anyone interested in the slightly less academic side of me is welcome to visit Spirit of the Eagle, my personal blog.