Environmental Law

Center for Progressive Reform comments on improving ESA Section 7 consultation may seek too much of a good thing.

By Keith Rizzardi

1. Broaden the scope of agency actions subject to Section 7 consultations to include all agency actions
2. Amend the regulatory definitions of “cumulative effects” and “indirect effects” to more closely align with the guidelines for implementing the National Environmental Policy Act (NEPA);
3. Amend the regulatory definitions of “destruction or adverse modification of critical habitat” and “jeopardize the continued existence of” so that they better enable FWS and NMFS to provide for the recovery of listed species, and so that they are better grounded in biological science;
4. Stop considering any new regulatory proposals that would provide federal agencies with the authority to determine on their own whether a Section 7 consultation is required for a proposed action;
5. Ensure that the Environmental Protection Agency fully comply with the Section 7 consultation process when regulating pesticides under the Federal Insecticide, Fungicide and Rodenticide Act and when developing water quality criteria for the protection of aquatic life under the Clean Water Act;
6. Improving the manner in which they track and monitor federal agencies' efforts to comply with recommendations made during the Section 7 consultation process and the actual outcomes that are achieved by agency efforts to comply with these recommendations; and
7. Explore ways to use the often ignored provisions of section 7(a)(1) of the ESA—which requires that all federal agencies implement programs for the conservation of endangered species—to address the threats posed to endangered by global climate change.
   
   KEITHINKING: CPR's comments, such as the proposed amendments to regulatory definitions, FIFRA consultations, and improved tracking of biological opinion implementation, reflect a number of reasonable (but of course, debatable) policy reforms.  However, in one important respect, the well-intentioned comments exemplify a frequent problem with many outsider-looking-in comments on ESA implementation.  Although at times absolutely necessary to protect species on the brink of extinction, the ESA consultation process also brings with it significant burdens.  Development of a "biological opinion" is an excruciatingly detailed endeavor, often leading to 100-plus page documents, relying in turn upon thousands of pages of scientific literature.  The many layers of statutory and regulatory requirements, all endlessly litigated, create a process where nearly any biological opinion is likely to have at least one mistake or omission (or even just one less-than-perfectly explained paragraph) thus enabling the creative opponent to obtain an injunction of the underlying project.  As a result, to insist that consultation should be conducted on "all agency actions," or to suggest that the process should be expanded using the provisions of ESA Sec. 7(a)(1), is to ignore both the consequences of those demands, and the long history of ESA litigation.  In some cases, especially when federal actions benefit the status of a species or its habitat, or where federal actions have de minimus impacts, the imposition of the ESA's procedural burdens may inadvertently create new opportunities for mischief (and don't forget, a burden on the taxpayers.)  
   
   ESA amendments may be needed, regulatory reform of the ESA may be needed, and yes, the Bush Administration over-reached.  
   
   But progressive reform of the ESA should seek to improve the ESA consultation process when helpful, and to ease the burdens when it is not.  
   
   Too much consultation is not a good thing.

Full post as published by ESA Blawg on August 03, 2009 (boomark / email).