Update: Final Endangered Species Rule May Itself Be Endangered

by Margaret Clune Giblin

January 22, 2009

Former President George W. Bush departed for Dallas on Tuesday, but his pervasive legacy remains here in Washington. In a prior post here on CPRblog, I wrote about one of the Bush Administration’s “midnight regulations,” which collectively stamped the most recent of the Bush imprints on public policy. In its proposed changes to the interagency consultation rule under Section 7 of the Endangered Species Act (ESA), the Bush Administration proposed to, among other things, effectively eliminate the statutory requirement that federal agencies consult with the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to confirm their own conclusions that a planned action won’t adversely affect threatened and endangered species. CPR, led by Member Scholars Holly Doremus, Alex Camacho, Dan Rohlf and Board Member Rob Glicksman, submitted comments in opposition to the proposed changes.


After speed-reading through CPR’s comments and approximately 250,000 other public comments received, the Department of the Interior (DOI) published the final rule in the Federal Register on December 16. The comments themselves, many of which objected to the very essence of the proposed changes, apparently failed to persuade FWS and NMFS, for the final rule is substantially similar to the proposed rule. One notable exception is that while the proposed rule explained in its preamble that its regulatory language would serve to exclude greenhouse gas emissions from the effects on species that federal agencies must consider in order to comply with the ESA, the final version includes an explicit provision to that effect in the regulatory language itself. The difference is significant, because preambles don’t carry as much legal weight as the text of regulations themselves. So if, down the road, some greenhouse gas emitter chooses to challenge an enforcement action in court, they’ll have a stronger case that the regulation protects their pollution. In short, Interior’s final rule is worse than the already horrible proposed draft.


The rule faces challenges on multiple fronts. Indeed, once the rules were issued, three lawsuits were filed in rapid succession by environmental organizations. On December 11, the day after DOI announced its intent to finalize the rules, the Center for Biological Diversity, Greenpeace and Defenders of Wildlife joined forces and filed suit to overturn the regulations. On December 16, the day the final rule was published in the Federal Register, Earth Justice and the Natural Resources Defense Council (NRDC) filed another lawsuit on behalf of NRDC, the Sierra Club, Conservation Northwest, The Humane Society of the United States, Pacific Coast Federation of Fishermen's Associations (PCFFA), and the Institute for Fisheries Resources. Two days later, the National Wildlife Federation (NWF), 13 of its state affiliates and Golden Gate Audubon filed a third suit. All three lawsuits are currently pending in the United States District Court for the Northern District of California.


Environmental organizations are not the only parties challenging the new rules. The State of California filed its own challenge, also in the Northern District of California, and last week amended its complaint to include eight other states as co-plaintiffs: Connecticut, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, and Rhode Island.


CPR Member Scholar Dan Rohlf (Professor of Law and Director of the Pacific Environmental Advocacy Center at Lewis and Clark Law School) is working with John Kostyack (NWF’s Executive Director of Wildlife Conservation and Global Warming) and Randy Sargent Neppl (NWF’s wildlife conservation counsel) on NWF’s challenge to the regulations. Professor Rohlf, who was one of the co-authors of CPR’s comments on the proposed rule, advises that litigation in the cases challenging the new rule is still in its early stages. However, he points to one notable development: a move by the U. S. Chamber of Commerce to transfer one or more of the Section 7 rule challenges pending in California to Washington, D.C. (Federal courts in Washington are perceived as being less advantageous for environmental plaintiffs than those in the Northern District of California.)

  

The Chamber generally supports the revised Section 7 rule. On December 12, it posted a press release  on its website, in which it praises the new rule, stating that in issuing it, DOI had “clarified” the ESA and in so doing would “help many infrastructure projects move forward, stimulate the economy and create jobs.” Interestingly, however, the day before, the Chamber filed a complaint in U.S. District Court in Washington, D.C. challenging a portion of the very rule it praised. The Chamber explained to the Court that while it generally supported the rule, it perceived an inconsistency in two of the rule’s provisions, which “could be interpreted to result in the imposition of Section 7 consultation obligations beyond those required by the ESA.” The Chamber did not mention its lawsuit in the press release it issued the next day, nor does mention of it otherwise appear on the organization’s website. These seemingly contradictory actions may make more sense in light of another filing the Chamber made on the same day it filed its complaint—a notice to the Court of two allegedly related cases. That notice is a bid to transfer one of them to Washington—the lawsuit filed the same day in California by the Center for Biological Diversity, Greenpeace and Defenders of Wildlife.

 

The Chamber’s other argument for transferring the California challenge is a series of other cases that it argues are related to its own Section 7 challenge. Those cases relate to DOI’s listing (in May) of the polar bear as “threatened” under the ESA, and the Chamber is a plaintiff (along with the American Petroleum Institute and other industry groups) in one. In the polar bear listing rule, DOI established an exemption for greenhouse-gas-emitting activities to the usual ESA requirement that a permit be obtained from FWS where activities may result in an “incidental taking” of one or more of a listed species. In a legal strategy similar to that it has employed in its Section 7 lawsuit, the Chamber and its co-plaintiffs sued DOI in Washington, D.C., not challenging the rule or even that exemption as a whole, but one particular provision—the fact that the rule specifies that the exemption doesn’t apply in Alaska. (For more on that lawsuit, see a post on the Global Climate Law Blog, here.)

 

The Chamber and its co-plaintiffs were successful in their attempt to relate theirs and other industry challenges to polar bear litigation that the Center for Biological Diversity filed (also in the Northern District of California), which challenged the exemption as a whole. Now all the polar bear cases are pending before the District Court in Washington, D.C. The Chamber claims that fact bolsters its argument that all the Section 7 cases should be similarly consolidated in Washington.

 

The federal defendants in the Chamber’s Section 7 challenge have already objected to the attempt to relate the polar bear litigation. Professor Rohlf predicts that the environmental plaintiffs challenging Section 7 in California will also oppose any attempt by the Chamber to move their cases.

 

Professor Rohlf also notes that plaintiffs in all the cases are watching to see whether Congress will void the regulations. Indeed, last Thursday, House Natural Resources Chairman Nick Rahall (D-WV) introduced a resolution pursuant to the Congressional Review Act that, if passed, would void the rule. In addition to these challenges the “midnight” ESA rule faces in the judicial and legislative branches is the question of what, if any, action the new Administration may take. As the L.A. Times reported, when, during his confirmation hearing last week, incoming Interior Secretary Ken Salazar was asked whether the government should consider global warming in endangered species protection, his reply was vague. “There is no doubt that climate change and global warming is having an impact on a whole host of natural features of this world, including endangered species . . . it is something that we will take a look at.”


We’ll be watching for – and will keep you posted on – the results of that examination, as well as the fate of Chairman Rahall’s resolution and the outcome of the numerous legal challenges to the Bush Administration’s Section 7 rule.

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