Thursday, January 5, 2012

Critical Habitat

As a practitioner, and even in my first years as a professor, I never paid much attention to the Endangered Species Act’s prohibition on adverse modification of critical habitat.  The ESA was important to my work in practice and then to my teaching, but, like most environmental lawyers, I just thought of ESA section 7 as the section about jeopardy.  The prohibition on adverse modification was something of an afterthought.

Mapper_smSeveral years ago, however, I finally noticed that the adverse modification prohibition was, on paper at least, really, really powerful—perhaps even more powerful than the jeopardy prohibition, which more than anything else is responsible for the ESA’s “pit bull” reputation.  That realization made me wonder what the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts were actually doing, or not doing, with the adverse modification prohibition, and why.  Wondering is dangerous, and soon I was wading endlessly through biological opinions and somewhat less endlessly through court cases.  The results of that inquiry, published in a special climate change issue of the Florida Law Review, are now available here.

The article has lots of detail, but I’ll give just a few tidbits:

- The services have largely collapsed the jeopardy and adverse modification inquiries into a single inquiry, even after a series of court cases essentially nullified the regulations that supported that approach.  Out of a pool of over 4,000 opinions, I did not find a single one that found adverse modification without also finding jeopardy.

- The services have construed the critical habitat prohibition as exempting small instances of habitat degradation or destruction, without ever really defining how small is too small, or how this approach will protect species threatened primarily by the incremental destruction of their habitat.

- Notwithstanding these findings, the services are doing a lot to protect habitat, even if the adverse modification is playing a fairly minor role in that protection.  What particularly surprised me was how much they work to change relatively routine, low-profile projects.  After my time in practice, I had suspected that on these smaller projects, where environmental groups are rarely paying close attention, habitat protection would be more lax than for the larger, high-stakes controversies.  That’s consistent with a common view that the services implement the ESA only to the extent compelled by threatened or actual litigation.  But after looking at lots of biological opinions and interviewing many FWS and NMFS biologists, I think my suspicion was wrong.

- The continuity of implementing approaches between the W. Bush Administration and year one of the Obama Administration is striking.

- There’s a range of opinions among FWS and NMFS staff about how much critical habitat matters, and in what ways.  I consistently heard that it does make a difference, usually by subtly shifting negotiations with project proponents.  Multiple interviewees expressly rejected the notion, often repeated in official FWS proclamations, that critical habitat designations are a redundant waste of time.  Several also told me they thought that critical habitat designations could and should play a more significant role.  But beyond that basic consensus, agreement over how critical habitat influences decisions breaks down.

- In practice, the different provisions of the ESA are deeply intertwined.  Most casebooks address the act sequentially, starting with section four and moving through sections seven, nine, and ten.   That works well in the classroom, but it can convey the mistaken impression that the different provisions are implemented separately.  In fact, section seven consultation is an important part of habitat conservation planning under sections nine and ten, and, as I found while researching this article, section nine plays a central role in most consultations.

- Over the life of the ESA, there hasn’t been much litigation on the adverse modification provision, but in recent years the number of cases has grown rapidly.

For more, please have a look at the article (and the issue as a whole; it contains several other articles and essays that look quite interesting).  I found this a fascinating topic to research, and hope readers will find it interesting as well.

-Dave Owen

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