The Proposed ESA Consultation Regulations

In August, the Fish & Wildlife Service, along with the National Marine Fisheries Service ("the Services"), proposed a rule amending the Endangered Species Act consultation regulations. As one of several proposed changes to environmental regulations before the end of the Bush administration, this proposed rule seeks to redefine the circumstances in which federal agencies must consult with the Services to determine whether a proposed federal agency action would jeopardize threatened or endangered species. The proposal is, at least in part, an effort to limit the use of the Act as a vehicle for addressing climate change issues following the decision to list the polar bear in May (see here, here, here, and here). But its implications are farther reaching than simply responding to the novel ESA questions posed by climate change.

As documented in comments to the proposed rule (including this one from environmental law professors), the proposed rule may dramtically narrow the scope of consultation through (1) changes to which effects of an action may be considered and (2) exclusions of certain types of actions from consultation.

The proposal would raise the bar on demonstrating effects of an action on listed species by limiting the types of "indirect effects" that may be considered through both an enhanced causal requirement & a high "clear and substantial" informational threshold. In an area often fraught with significant scientific uncertainty and limited information, this bar is an unecessarily high one. Its impact may be to exclude a significant number of proposed federal actions from ESA consultation. The bar is unnecessarily, perhaps unlawfully, high because consultation is merely a process requiring the Services to engage in further analysis on whether imperiled species may face an increased extinction risk due to the proposed action. The process usually ends in the action going forward, but it may include changes to promote viability of a species.

The proposed rule would also exclude several situtations, such as those in which impacts are "not capable of being meaningfully identified or detected in a manner that permits evaluation," from consultation. In so doing, the Services propose to shift significant authority to the action agencies to develop information necessary to show that consultation is required . . . or to fail to develop that information. These action agencies are not the experts on species protection and, instead, often have a large stake in the proposed action. In an area where scientific uncertainty is commonplace, this apparently subtle shift could have singificant impacts on the actual protections afforded listed species.

Along with the effects and potential unlawfulness of the proposed rule (see this article on similar counterpart regulations), it is problematic because it is a transparent effort to entrench a decidely anti-environmental political agenda at the last minute. Not only did the Serivces severely restrict the time period for comments (initially 30 days), but the agencies then sought to review the roughly 200,000 non-form-letter comments it received in an average of seven minutes per comment! The most recent news on the proposal? The final rule is expected any day , akthough it is apparently going to be classified as a "minor" rule that will take effect in 30 (rather than 60) days, which probably explains why it was not released by November 21 as many anticipated. According to The Washington Post, a pre-release draft "goes further than the language . . . issued in August by explicitly excluding climate change from the factors that would trigger an interagency consultation." BNA's environmental reporter (subscription required) has a similar account.

Update: Final Rule Published 12/11.

Winter v NRDC

Without digging too deeply into this case, here are a few thoughts:

Why does the Court take a case like this? The case concerns, at its base, the issue whether the Navy must complete an environmental impact statement under NEPA before undertaking certain training exercises. Although it had initially determined that no EIS was required, the Navy ultimately agreed to complete one. It expected the EIS to be ready in January 2009. In the interim, the district and circuit court imposed mitigation measures on sonar training. The Navy sought to challenge two of those mitigation measures. The Court granted certiorari in June 2008 -- seven months before the issue would likely become moot! (This timeframe is the primary reason that Justice Breyer would not remand the case, according to his concurrence). Last week, approximately two months before the Navy EIS is expected, the Court held that the preliminary injunction upon which the mitigation measures rested is unwarranted.

Perhaps the answer is suggested by the stirking contrast between the characterization of the injuries suffered on the plaintiffs' side. Chief Justice Roberts' majority opinion stresses the distinction between the injury to marine mammals and the injury to human plaintiffs' interests. The Chief Justice states that "even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests." Thus, the majority opinion weighs an interest in sonar use that is deemed vital to national security against "the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court." Justice Ginsburg, in contrast, highlights the Navy's own estimate that the planned sonar usage could cause permanent physical damage to nearly 1/2 of the Cuvier's beaked whales in the waters off the west coast, as well as significant harm to other species.

Tying the two threads together, and considering the majority's repeated statements concerning the magnitude of the national security interest, there seems little reason to decide the case other than to emphasize the priority of national security over environmental concerns. While there are certainly significant legal issues surrounding sonar use, what was the important legal issue in this case? Re-affirming the standard for preliminarty injunctions? Noting that NEPA can be suspended from time to time, especially if compliance is acheived as soon as practicable? Maybe I am missing something, but this case strikes me as far more a cultural contest than a legal one. From that perspective, the environmental parties were in a tough spot: sonar probably does cause rather significant harm to beaked whales and perhaps other species (a few highlights are here, here, here, and NRDC's here), but this case seemed like a foregone conclusion once it reached the Supreme Court.

Biolaw 2.0 Conference - Law at the Frontiers of Biology

On November 13th and 14th, 2008, Biolaw 2.0 - Law at the Frontiers of Biology will take place at the University of Kansas School of Law. As the 2.0 suggests, this is the second annual Biolaw Conference. The Biolaw Conference website can be found here.

Professor Lee Silver, world-famous geneticist and public policy scholar at Princeton University, will deliver the keynote address at 1:00 P.M. on November 13th at the Robert J. Dole Institute of Politics. The day's proceedings will be broadcast on National Public Radio affiliate Kansas Public Radio. Professors Jim Chen (Dean, University of Louisville School of Law, and founder of Jurisdynamics), June Carbone (UMKC School of Law), Deven Desai (Thomas Jefferson School of Law), and I, Andrew Torrance (University of Kansas School of Law) will respond to Professor Silver's address, which is entitled The Clash of Biotechnology and Religion. Professor Peter Yu (Drake University School of Law) will conclude the first day of Biolaw 2.0 with his talk, A Mishmash of Two Transplants, which address the difficulties of applying intellectual property law from one country to other countries.

The second day of Biolaw 2.0 will feature talks on a variety of bleeding-edge biolegal subjects. Here is the schedule:

Deep Six – 8:00-9:00 am
Dean Jim Chen, University of Louisville Louis D. Brandeis.School of Law

GM Food and the Challenge of Environmental Sustainability – 9:00 -10:00 am
Professor Rebecca Bratspies, CUNY School of Law

Patents and Biotechnology – 10:15-11:15 am
Professor David Schwartz, John Marshall School of Law

Synthesizing a Legal Approach to Synthetic Biology — 11:15- 12:15
Professor Andrew Torrance, University of Kansas School of Law

Black Markets for Human Body Parts – 1:00-2:00 pm (Lunchtime Keynote Address)
Professor Michelle Goodwin, University of Minnesota Law School

Public Institutions Role in the Biomedical Research Commons – 2:00 – 3:00 pm
Professor Peter Lee, UC Davis School of Law

Legal Impediments to the Growth of Life Sciences in the Economy – 3:15 - 4:15 pm
Patrick Wooley and colleagues, Polsinelli Shalton Flanigan Suelthaus

Innovation Impeded? Human Gene Patents – 4:15 - 5:15 pm
Professor Chris Holman, UMKC School of Law

The Biolaw Conference is to promote progress in biolaw as a vital field of law. This year's conference has grown substantially from last year's inaugural event. Our intention is make the Biolaw Conference a permanent annual event that highlights the best in biolaw scholarship.