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Environmental Law

: ESA Blawg

Another ESA controversy: Endangered Species Coalition says proposed rule (not the one you think) misled public, reduced habitat protections

By Keith Rizzardi

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It seemed innocent enough. On August 6, 2008, the FWS announced a change in the formatting of the listing table for endangered and threatened species. See ESAblawg post. The summary of the rule stated that FWS proposed to amend "the formats of the Lists of Endangered and Threatened Wildlife and Plants to include current practices and standards that will make the regulations and Lists easier for the public to understand." According to a September 4, 2008 letter from the Endangered Species Coalition to FWS, the announcement is misleading:

Rather than just affecting formatting, the proposed rule also changes the explanation of the "historic range" column entries in the lists of threatened and endangered wildlife and plants to undo the long-standing practice of treating all members of any species, subspecies or population on those lists as subject to the prohibitions of the Act. Instead, the proposed regulations would treat only those members of the taxon within the geographic area described in the new "where listed" column of the lists as subject to the prohibitions of the Act. These changes could result in an enormous cut in the amount of protection imperiled species receive because these species would be covered by the Endangered Species Act only within those habitat areas that both are large enough to be deemed a significant portion of the species' range and where the species are determined to be either threatened or endangered within that portion.

In that letter, ESC further explains that the format changes appear to embrace a controversial interpretation of the ESA offered in a Department of Interior Solicitor's Opinion (March 16, 2007). The Defenders of Wildlife believe the opinion tossed aside 30 years of statutory interpretation, and an analysis by the lawyers at Van Ness Feldman also emphasized that this opinion represented a significant policy change and would not be entitled to Chevron deference from the judiciary. Moreover, and perhaps most significantly, the Solicitor's Opinion means that, to the extent a species is not listed throughout out all of its range, the Section 7 consultation requirements and Section 9 “take” restrictions apply only to specifically identified populations, and not to the species as a whole.

If the accusations by the ESC are correct, then FWS may have violated of one of the most elementary provisions of the Federal Administrative Procedures Act, codified in 5 U.S.C. 553(b). This provision, governing the requirements of government agency rulemaking, states simply that "General notice of proposed rule making shall be published in the Federal Register..." and further states that "the notice shall include (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved." The notice of the proposed rule contains no reference to either the Solicitor's Opinion, nor the concept of "significant portion of the range." Again, if ESC's accusations are correct, the analysis above suggests that FWS did not properly explain the nature of the public rule making proceedings, nor did it explain the terms or substance of the proposed rule.

This rule represents the second major source of controversy between the administration and environmentalists over proposed rulemaking, although the proposed changes to Section 7 consultation have obtained far more media attention. SeeESAblawg (Aug. 16, 2008). The truth is out there...

Full post as published by ESA Blawg on September 10, 2008 (boomark / email).