Thursday, July 19, 2018

Seven Thoughts on the Proposed New ESA Rules

Today, the Fish and Wildlife Service released three proposed rules designed to change ESA implementation (the National Marine Fisheries Service is a coauthor of one of the three rules).  This post, based on a first read of the proposed rules, identifies seven particularly important elements or themes.

1. The 4(d) rule change is the most important element of the rules. The three rules contain many proposed changes, but I think one is by far the most important.  That’s the Fish and Wildlife Service’s proposal to abandon its tradition of extending ESA section 9’s take prohibition to newly-listed threatened species, and to make the absence of such protection the new default.  In other words, at present, when FWS lists a new species, it extends section 9 take protections to that species unless it affirmatively decides to follow a different course.  Going forward, if this rule is finalized in its present form, FWS would not provide those protections unless it decides to follow a different course.

 Why does this matter?  The answer, which gets a little bit into the ESA weeds, is that much of the protection FWS provides comes through section 9.  That isn’t because FWS often directly enforces section 9 against landowners; for all the talk about section 9’s fearsome reputation, enforcement resources are actually incredibly thin (and citizen suits are rare).  Instead, the fear of section 9 liability sometimes induces federal agencies, along with state or private entities that need federal permits, to engage in consultation processes.  And those consultation processes typically result in binding “reasonable and prudent measures” that are primarily designed to limit take, but that often provide more general benefits to species.

To put all of that in plain English, eliminating the 4(d) rule will mean that at least some threatened species have less protection.

2. The most important change is also one of the least explained. FWS’s stated reasons for eliminating its default 4(d) rule are (a) it wants to be consistent with the practices of the National Marine Fisheries Service, which doesn’t have an analogous rule; and (b) it thinks species-specific 4(d) rules work better than a blanket rule.  The former explanation doesn’t explain much; consistency is nice in many circumstances, but there’s no conflict here between the agencies’ different approaches (they’re working with different species); nor does FWS provide evidence that its traditional approach wasn’t working.  And the latter reason doesn’t explain anything.  Species-specific 4(d) rules do have their advantages, but the current default rule doesn’t do anything to eliminate FWS’s ability to adopt species-specific 4(d) rules.  It just sets a different default outcome when FWS chooses not to prepare a species-specific 4(d) rule.

I strongly suspect the real reason for the 4(d) change is a simple desire to weaken ESA protections and thus, hopefully, reduce regulatory burdens (though it won’t work out that way if the reduced protections just lead threatened species to become endangered more quickly).  The stated justifications look an awful lot like smokescreens.

3. Other than the 4(d) rule, there’s a striking amount of continuity. In the other realm where I follow rulemakings particularly closely (Clean Water Act jurisdiction), the Trump Administration is in a headlong, sloppy rush to undo whatever the Obama Administration did.  Here, in contrast, many of the proposed changes are subtle, and they reflect agendas pursued by prior administrations.  A move toward programmatic consultations, for example, is entirely consistent with an Obama-era push toward landscape-scale planning and permitting.  And in many places, the preamble refers to a 2015-16 rulemaking process to emphasize this theme of continuity.  Similarly, the consultation rule’s emphasis on achieving efficiency through pre-set understandings between action agencies and FWS and NMFS is consistent with on-the-ground practices that have been evolving for years.  In other words (and, again, other than the 4(d) rule), this actually looks a lot like a technocratic rulemaking, with the longstanding priorities of the agency tinged but not dominated by the politics of the present administration.

4. The rules appear to back off, a little, from designating unoccupied habitat as critical habitat. Several adjustments in the rule appear designed to move FWS toward smaller designations of critical habitat, particularly where that habitat is presently unoccupied.  For example, the new rule would reinstate an express preference for limiting designations to occupied habitat unless that occupied habitat is insufficient to sustain the species.  And in an apparent nod to the Markle Interests case currently before the Supreme Court, FWS states that it will be reluctant to designate unoccupied habitat if landowners would need to take significant steps to make that habitat hospitable to species (there’s also a passage—specifically aimed at jaguar habitat designations, I would guess—about not designating habitat in this country when the habitat a species most needs is abroad).  But none of these changes are phrased in absolute terms, which means FWS will still have discretion to continue designating large amounts of unoccupied habitat (something that did happen with increasing frequency during the Obama years).

5. The “adverse modification” definition keeps getting mushier. The ESA prohibits federal agency actions that are likely to cause “adverse modification” of critical habitat.  For years, FWS and NMFS have struggled to explain and apply that prohibition.  They have never accepted the idea that any adverse change to critical habitat qualifies as adverse modification, and instead have wanted to read into the statute an exception for small-scale modifications.  But finding language to describe that exception (and to do so in ways that aren’t too obviously inconsistent with a textualist reading of the statute itself) and figuring out how to implement it have been ongoing struggles (more on that in this article and this blog post).  The services’ general approach has been to use ambiguous language—terms like “appreciably modify” or “considerably reduce”—to explain how much modification is too much, and then, in practice, to say that small adverse modifications of habitat don’t qualify as “adverse modification” within the meaning of the statute—even when they also acknowledge that species are being pushed toward extinction by the cumulative effects of many small changes to their habitat.

The current rulemakings’ contribution to this situation is three more wiggle words.  According to the new rule, a modification is only adverse if it “appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.”  That language seems designed to give the services more permission to step back and view negative habitat effects at a scale at which they don’t really seem noticeable.

To be fair, the services have a difficult challenge here.  Figuring out how to draw the lines between de minimis harms and harms that are incremental but cumulatively significant is hard.  And while my research found that the services were soft-pedaling the adverse modification prohibition, I also found that they were still trying to provide ample habitat protection through other means.  But I still think it’s problematic to use rulemakings to take fairly straightforward Congressional language and turn it into mush.

6. It would be nice to have more clarity on “expedited consultations.” The regulations propose a process called expedited consultation, which would involve faster consultations for projects with fairly well-known impacts.  That sounds like a good idea, particularly for projects like culvert replacements that have fairly well-known short-term impacts and long-term benefits.  But the proposed consultation rule is fairly vague about how these expedited consultations would work.  Which parts of the normal consultation process would be skipped?  And how would the expedited consultation process differ from the already-common practice of adopting standardized conservation measures and reasonable and prudent measures for recurring project types?  I’d like to know, but the proposed rule doesn’t really say.

7. There are many requests for comment on subjects where the agencies don’t actually offer a proposal. In rulemakings, agencies often invite comment on matters not directly addressed in the proposed rule.  There’s nothing wrong with doing that, so long as the agency’s final rule is a “logical outgrowth” of the proposal.  But given this administration’s track record of trying to circumvent normal rulemaking procedures, these requests for comment make me wonder if the political higher-ups at DOI are holding more major changes in reserve, and are planning to unveil them in the final rule, saying something like, “of course it’s a logical outgrowth!  We specifically invited comment on that issue!”  Courts most likely would make short shift of those arguments.  But given the current administration’s impatience with administrative law, some concern still seems worthwhile.

There are many more elements to the proposed rules, and many more things that could be said.  But my overarching conclusion is that the proposed 4(d) rule is the big story here, and otherwise these changes aren’t drastic.  Some are somewhat promising; some are somewhat problematic; and some could go either way depending upon how they are fleshed out.

- Dave Owen

An additional note, added after the initial post: one other potentially important change involves the regulations' definition of "the effects of the action."  In the new regulations, effects would only count if they are "reasonably certain to occur."  That's not an entirely new concept; the regulations previously used that same language with respect to "indirect effects."  But the new rule would extend it to all effects.

That matters because the language, taken literally, would exclude effects that are possible but uncertain.  For example, suppose that a proposed project creates what scientists estimate to be a forty percent chance of releasing a problematic invasive species into an endangered species' habitat.  A reasonable person would take that risk into account when deciding whether to allow the project (and, more importantly, what steps to take to reduce the risk of the invasion; in practice, consultation is all about making adjustments).  But the new language might appear to give agency staff license to ignore the effect, saying that it is not "reasonably certain to occur." 

In the preamble, the services suggest that they just intend to exclude "speculative" effects, and that absolute certainty isn't necessary.  But given the uncertainties of environmental science and human behavior, many effects fall somewhere between certainty and speculation.  The services ought to find language that better accounts for that intermediate zone.

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Responding to M. Mayer's comment: I don't have statistics on the number (or area, which is also important) of HCPs in recent years, but I also would be interested to know. Because HCPs can take a long time to prepare, it's also possible that a downturn in numbers would be just starting to show up now.

Posted by: David Owen | Jul 24, 2018 1:31:28 PM

I am curious about any HCP statistics. Are they being used with the same frequency as in earlier years? I would think that the diminished enthusiasm around Sec. 9 would have led to fewer HCPs as well. I don't have hard evidence, but I sense that there are not as many.

Posted by: M. Mayer | Jul 23, 2018 12:47:48 PM

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