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Environmental Law

: ESA Blawg

Secretary Kempthorne announces final (but still controversial) consultation regulations.

By Keith Rizzardi

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The Rolling Stone dubbed them a "final FU" from the outgoing President. Despite the enormous opposition of 200,000 or 300,000 public comments, and the likely rejection by Congress and the Courts, see prior ESA musing, the Section 7 consultation regulations were announced as final today. However, according to the 12/11/2008 statement by Secretary Kempthorne, "The rule was narrowed from the proposed regulation so there will be fewer opportunities for federal agencies to proceed without consultation."

KEITHINKING: Further analysis is needed, but upon an initial reading, the critical and most controversial provisions in 50 C.F.R. Sec. 402.03 have indeed been re-written, and improved. For example, the language has been modified to be much more clearly connected to global climate change (see 50 C.F.R. 402.03(b)(2), as revised in final format), rather than in a broader range of circumstances (such as the generic exemption from consultation for actions that are an "insigificant contributor" to effects on species or habitat originally proposed in 50 C.F.R. 402.03(b)(2)). Also, while certainly controversial, probably hastily rushed to final format, and perhaps problematic, the regulations have merits too. Most notably, these regulations would eliminate the need for time-consuming formal consultation when the effects of a proposed agency action are wholly beneficial. Consider the changes for yourself and compare the original version of the regulations from August 2008 with the final version announced today:

PROPOSED (AUGUST 2008):
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1) Such action has no effect on a listed species or critical habitat; or
(2) Such action is an insignificant contributor to any effects on a listed species or critical habitat; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being meaningfully identified or detected in a manner that permits evaluation;
(ii) Are wholly beneficial; or
(iii) Are such that the potential risk of jeopardy to the listed species or adverse modification or destruction of the critical habitat is remote.

FINAL (DECEMBER 2008):
(b) Federal agencies are not required to consult on an action when the direct and indirect effects of that action are not anticipated to result in take and:
(1) Such action has no effect on a listed species or critical habitat; or
(2) The effects of such action are manifested through global processes and
(i) cannot be reliably predicted or measured at the scale of a listed species’ current range, or
(ii) would result at most in an extremely small, insignificant impact on a listed species or critical habitat, or
(iii) are such that the potential risk of harm to a listed species or critical habitat is remote; or
(3) The effects of such action on a listed species or critical habitat:
(i) Are not capable of being measured or detected in a manner that permits meaningful evaluation; or
(ii) Are wholly beneficial.

BOTTOM LINE: The revised regulations include numerous improvements when compared with the original version. Still, the effort to minimize consideration of global climate change in endangered species management will remain controversial, while the other nuanced terminology changes will require very careful scrutiny to be fully understood. The media coverage, however, has missed those nuances, the litigation battle lines have already been drawn, and many people seem to think that nothing much has changed. See Seattle Post Intelligencer and Wall Street Journal and Associated Press.

The final regulations were signed by Lyle Laverty (left photo), Assistant Secretary for Fish and Wildlife and Parks, and a former Director of Colorado Parks and former U.S. Forest Service manager, (see National Parks Traveler and Wild Wilderness), and by Samuel Rauch (right photo), NOAA's Deputy Assistant Administrator for Regulatory Programs, and a former DOJ litigator.

Full post as published by ESA Blawg on December 11, 2008 (boomark / email).