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Nossaman Environment and Land Use Practice Group Chair, Paul Weiland, and Environment and Land Use Partner Steven Quarles, Author Article For Law360

04/24/2017 Law360

Paul Weiland, Chair of Nossaman’s Environment and Land Use Practice Group, and Steven Quarles, a Partner in the Group, authored an article for Law360  titled “How Will Congress Approach ESA Reform?” The article is reprinted below in full.

How Will Congress Approach ESA Reform? 

The role of Congress in the administration of federal environmental and natural resource laws, generally, and the Endangered Species Act, in particular, has slowly declined over the past 35 years. Concomitant with this decline, the roles of the executive and judicial branches of government have grown. In the present tumultuous political climate, it is difficult to predict whether the historical trend will continue or whether there will be a realignment of the balance of powers among the branches. But it is likely that Congressional Republicans will make a concerted effort to amend the ESA during the 115th Congress.

While in certain respects, the ESA has stood the test of time, there is no question that reauthorization is past due. Congress could approach ESA reform in one of three ways. First, Congress could seek to enact a comprehensive ESA reform bill. Attempts to do so came up short in the late 1990s and mid 2000s (the so-called Kempthorne-Chaffee and Pombo bills). Second, Congress could seek to make rifle shot amendments to the act.

One example of this approach is a 2004 amendment to the provisions providing for the designation of critical habitat to address those circumstances when the U.S. Department of Defense has prepared an integrated natural resources management plan, Pub. L. No. 108-136, sec. 318. Third, Congress could seek to use its authorization and appropriation powers to affect the administration of the ESA. But an approach that targets federal funding may have unintended and undesirable consequences, such as curtailing the budget for the federal wildlife agencies to administer ESA permitting programs without removing the legal requirement for affected parties to comply with the programs.

If there is to be comprehensive ESA reform in this Congress, either or both Sen. John Barrasso, R-Wyo. (chairman of the Committee on Environment and Public Works) and Rep. Rob Bishop, R-Utah (chairman of the Committee on Natural Resources) will play a key role. Both of these Congressional leaders will be influenced by their roots in the West. As a consequence, federal-state relations and high-profile debates regarding listings and delistings, including listing of the greater sage grouse and delisting of the gray wolf, can be expected to influence the content of reform bills.

That said, if either member pursues comprehensive ESA reform, the states, a wide variety of regulated interests and environmental nongovernmental organizations (NGOs) will undoubtedly seek to shape the content of the legislation. Thus, it can be expected that powerful interests will argue for changes to virtually all of the major provisions of the act, which include sections respecting species listing, critical habitat designation, recovery planning, federal agency consultation, habitat conservation planning and permitting, and enforcement, as well as the potentially cross-cutting issues of the roles of science and the states in ESA implementation.

The areas where ESA reform is most needed are those cross-cutting issues associated with the roles of science and the states in implementation of the act. With respect to science, the absence of Congressional oversight and broad judicial deference to agency decision-making have allowed the executive branch to make decisions that are increasingly out of step with prevailing scientific practices and knowledge. Even where empirical research is available, when it is not consistent with the priorities of agency staff or leadership, the federal wildlife agencies often default to “best professional judgment” in defense of their decisions. Amending the ESA to clarify that the best available science requirement imposed pursuant to the act requires more than noncapricious decision-making would both further the conservation of listed species and decrease the frequency with which the federal wildlife agencies make decisions that have significant adverse economic impacts without corresponding species or habitat benefits.

Though the ESA was not structured in the same manner as the Clean Air Act Amendments of 1970 or Federal Water Pollution Control Act Amendments of 1972, the inclusion of Section 6 in the act did reflect Congressional desire to establish a regulatory regime based on cooperative federalism. But the federal wildlife agencies failed to promulgate, and the states have not vigorously pursued, regulations to implement Section 6, and federal-state relations with respect to management of at-risk wildlife over the intervening four decades have vacillated between periods of cooperation and confrontation. A valuable but underappreciated consequence of the robust cooperative federalism model employed in the service of air and water pollution control has been the rapid growth of institutional capacity at the state and regional levels in many parts of the nation. In the area of wildlife management, state and regional institutional capacity increased over time, driven in substantial part by the reality that states continue to have primacy with respect to most wildlife management. But greater delegation of management of listed species to the states is overdue and could spur a critically needed influx of additional expertise and funding for species and habitat protection.

Even though the most pressing need for reform is in the above-described areas, because no significant reauthorization has occurred over the past 35 years, reauthorization should extend to species listing, critical habitat designation, recovery planning, federal agency consultation, habitat conservation planning and permitting, and enforcement — all of the major provisions of the act. For example, there is no question that the listing process put in place decades ago, which authorizes any person to submit a petition to list a species or designate critical habitat and provides both a relaxed threshold for initial findings and a compressed time frame for the federal wildlife agencies to respond, has created a workload that exceeds agency appropriations and allowed special interests rather than conservation needs to dictate agency priorities. Changes to the listing and designation process would assure that agency decisions are guided by the best scientific information and subject to judicial review, while reducing the cycle of lawsuits and settlements as well the special interests’ influence over the listing and designation programs.

Furthermore, the federal wildlife agencies and the courts have interpreted aspects of the interagency consultation requirements in a manner that is contrary to legislative intent and sound public policy. One way in which they have done so is by conflating the effects of actions subject to the consultation requirements with the environmental baseline, which increasingly includes projections of climate change. While the act already distinguishes the action from the baseline, modest changes in the act’s consultation provisions, could reinforce the responsibility of the federal wildlife agencies to make jeopardy and adverse modification determinations on the effects of the action, distinct from the environmental baseline.

Another way in which the federal wildlife agencies and courts have misinterpreted the consultation requirements is by opining that the federal wildlife agencies have unreviewable discretion to choose among available reasonable and prudent alternatives (in those rare circumstances where jeopardy or adverse modification determinations are made). Instead of allowing the federal wildlife agencies to eschew consideration of the impacts of reasonable and prudent alternatives on society, the act should be interpreted consistent with sound public policy to oblige the agencies to select from among available reasonable and prudent alternatives the one that has the fewest societal costs.

Recognizing that any ESA reform bill will face an uphill battle, perhaps the most significant risk to such a bill will arise if Republicans do not learn from the experience of former Rep. Richard Pombo, R-Calif., in the mid-2000s. There will be a temptation among some members to inject property rights protections into the act beyond those already in place, but the concept would likely doom the effort from the start as it did the Pombo bill. Though common-sense, incremental reforms are likely to be opposed by most or all within the community of environmental NGOs (both as to substance and due to fear that any bill will be marked up to include more radical reforms during the ensuing legislative process), a centrist ESA reform bill both has the best likelihood of success and presents an opportunity to vastly improve on the outdated, existing law.

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