Environmental Law Professor Robert Glicksman

§ 104 – NEPA does not affects agencies’ statutory obligations

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§ 104 – NEPA does not affects agencies’ statutory obligations.

No substantive requirements  No baseline from which environmental impacts of agency actions are measured.

Usually measured from existing conditions.

Judicial Review

Calvert Cliffs (D.C. Cir. 1971).
1. Reviewable under the APA § 701(a)(2) as final agency action (unless a substantive statute already provides review).
2. Courts can order agencies to go back and do it again, i.e., comply with NEPA by preparing EISs (or simply better EISs).
3. Did not definitely say whether courts can order agencies to adopt less environmentally harmful means to achieve their goals. Supreme Court would take this up later.

Threshold Question – Must an EIS be prepared?

Does any exemption apply?
Exemptions
1. Statutory Exemptions
  1. Some EPA requirements under CAA and CWA.
  2. Other EPA requirements must be functionally equivalent to NEPA requirements. (Functional Equivalence Exemption)
  3. See E&E 131–32.
2. Categorical Exclusion (CATX)
  1. “Categorical Exclusion means a category of actions which do not individually or cumulatively have a significant effect on the human environment.” 40 C.F.R. § 1508.4.
  2. Agency must provide explanation of why its proposal falls within a CATX.
  3. Includes actions that do not individually or cumulatively have a significant effect on the human environment.
    1. Usually minor actions only—not major actions.
    2. Exception – EIS still required if, due to extraordinary circumstances, an action otherwise covered by a categorical exclusion might have a significant impact on the human environment.
  4. Congress has expanded authority of agencies to create categorical exclusions.
  5. Three Issues in Categorical Exclusion Cases
    1. Did agency appropriately create the CATX?
    2. Even if so, does the action being challenged fit within the scope of that categorical exclusion?
    3. Even if so, are there extraordinary exclusions that bar the agency from invoking the categorical exclusion?
3. Statutory Conflicts
  1. § 104 – NEPA is not to affect the “specific statutory obligations” of federal agencies.
  2. Flint Ridge (U.S. 1976)
    1. Concerned direct statutory conflict between NEPA and an organic act, i.e., statute authorizing agency to take the action that it is attempting to take. Could apply to any other non-organic statute.
    2. No practical way that HUD could create an EIS and still review developer’s disclosure statement within 30-day period. Doing both was impossible. Therefore, because of this conflict, the substantive statute trumped NEPA, and NEPA had to give way.
    3. § 102 – Agencies are required to comply only to the fullest extent possible. Sometimes, compliance with NEPA simply is not possible.
  3. Functional Equivalence Exemption
    1. EPA need not comply with NEPA if its requirements are functionally equivalent to the relevant NEPA requirements.
    2. Catron County (10th Cir. 1996) – Functional Equivalence Exemption did not apply because (1) there was no identical overlap and (2) ESA may seek to promote different objectives than NEPA.
      1. Alleged conflict of statutory purpose.
      2. Court looked to clear language of statute.
        
        § 102 – Agencies are required to comply only to the fullest extent possible.
        
        “Fullest extent” means compliance with NEPA even if there is some overlap. Here, court is focusing on the word “fullest.”
  4. Congressional Exemptions – Requests for appropriations. Andrus (U.S. 1979).
  5. Emergencies – Possible exemption during emergencies. 40 C.F.R. § 1506.11.
  6. National Security – See p. 265.
    1. National Security Incidents. Winter v. NRDC.
    2. FOIA Exemption. Weinberger v. Catholic Action of Hawaii (U.S. 1981).
      1. NEPA cannot compel disclosure of sensitive national-security information.
    3. See E&E 133–35.
  7. Enforcement Decisions – Courts are unlikely to compel compliance with NEPA against the wishes of the executive. Enforcement decisions are the province of the executive.
    1. Reluctance to interfere with prosecutorial discretion.
  8. Non-Discretionary Agency Decisions – NEPA does not apply. If a decision is non-discretionary, it is mandatory.
    1. DOT v. Public Citizen (U.S. 2004) – Agency had to allow the trucks in, and nothing that the EIS could have said would have affected that outcome.

If no exemption applies, an agency must comply with NEPA procedures. This does not mean that an EIS is required.

Is an EIS required?
If unclear, agency conducts an environmental assessment (EA).
1. If no EIS is required, agency may implement action.
  1. Agency must include a finding of no significant environmental impact (FONSI).
  2. No public comment period is required, unlike with EIS.
  3. Decision may be challenged as a final agency action.
2. Mitigated FONSI – Based on mitigation requirements that are accepted as basis for decision that action will not have a significant environmental impact.
  1. CEQ on Mitigation Measures
    1. Must be enforceable as a condition of final decision that an EIS is not required.
    2. Courts have tended to reach the conclusion that nothing in NEPA requires an agency to implement the mitigation measures on which it is relying. To hold otherwise would impute substantive measures into NEPA.
    3. Courts have required an adequate description of the mitigation measures on which an agency is relying.
    4. CEQ has issued a guidance document on mitigation measures, which essentially amounts to non-enforceable best practices.
      1. Guidance documents are not enforceable against anybody.
      2. Agencies may use commitments to perform or performance by others for not preparing EISs, but they should not rely on them if they are not enforceable.
      3. Mitigation measures should be actually implemented.
      4. Agencies should specify measureable performance standards for minimization effects of mitigation measures.
      5. Time frame for mitigation commitment should be established and specified clearly.
Contents – “Brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.” 40 C.F.R. § 1508.9(b).

Environmental Impact Statement

Required for “proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.” § 102(2)(C).
“Federal”
1. Federal government’s authorization of a private project is sufficient to make an action federal for purposes of § 102(2)(C).
2. Federal Projects
3. Federal projects carried out by private agencies.
4. State and local projects if there is federal funding, control, or supervision. 40 C.F.R. § 1508.18.
  1. Funding for preliminary is not enough  No final action.
  2. Block grants sometimes suffice.
5. Divergent case law on whether federal action must constitute a significant portion of the project.
  1. Slater (6th Cir. 2001) – Federal agency must able to influence outcome of project through sufficient control and responsibility.
“Action”
1. Timing
  1. EIS required with every proposal.
  2. “Proposal” defined at 40 C.F.R. § 1508.23.
  3. Kleppe.
2. Nondiscretionary Actions
  1. NEPA does not apply. DOT v. Public Citizen (U.S. 2004).
    1. NEPA’s purpose is to require agencies to consider environmental consequences before taking action and agency action is mandatory, then nothing in an EIS could change an agency’s action. Therefore, an EIS is not required.
3. Inaction
  1. No federal action “where an agency has done nothing more than fail to prevent the other party's action from occurring.” Defenders of Wildlife v. Andrus (D.C. Cir. 1980).
  2. No federal action when agency’s neglect of statutory duties is other than a deliberate decision not to act. Norton (U.S. 2004).
    1. Federal action when agency refused to take required action.
“Major Federal Action”
1. Dual Standard – Hanley I (considering factors of cost of project; amount of money in implementing action; magnitude of environmental affect; scope and duration of agency’s planning process).
  1. Must be significant as well.
2. Unitary Standard – “Major” and “significant” mean the same thing.
  1. CEQ uses unitary standard. 40 C.F.R. § 1508.18 (“Major reinforces but does not have a meaning independent of significantly.”).
“Significantly Affecting”
1. Significance issue turns on two factors:
  1. Context – Setting; taking an action in a forest is different than taking the same action in New York City.
  2. Intensity – Severity of action.
    1. 40 C.F.R. § 1508.27(b) – Ten Factors relevant for determining intensity.
      1. Many relate equally to context.
2. 40 C.F.R. § 1508.27 – Defines “significantly.”
3. Standard of Review - § 706(2)(a): Arbitrary and Capricious Test
  1. Applied to agency decisions that EIS is not required.
  2. Hard Look Review tends to mean “not very hard look.”
  3. A&C Test – Fairly deferential.
  4. Courts look to Overton Park and Ocean Advocates factors.
    1. Ocean Advocates – Courts defer to agency when there is a conflict among experts.
  5. Purely Legal Issues – Courts are more comfortable engaging in rigorous review than when engaging in review of factual record.
  6. Other Test in Ocean Advocates – How certain must it be that adverse effects will occur? Test for significance.
    1. There must be a substantial possibility that adverse effects will occur. Ocean Advocates.
  7. Other Courts’ Tests
    1. Clear Error of Judgment – More deferential than substantial possibility test.
“Human Environment”
1. See 40 C.F.R. § 1508.14.
2. Encompasses all of the physical world around us.
3. Does it also encompass social and economic impacts of agency proposals?
  1. Qualified yes. Agency must consider them only if they are associated with an impact on the physical environment.
  2. Reflected in the definition of environment in the CFR.
4. Causation/Psychological Effects
  1. Alone do not require an EIS. Metropolitan Edison Company.
  2. NEPA is limited to impacts on the physical environment.
  3. Must be a reasonably close causal relationship between a change in the physical environment and the effect at issue (here, fear).
  4. Fear did not qualify as an effect on the human environment, and even if it did, the causal relationship between reopening the nuclear facility and the neighbors’ fear was too attenuated.
Controversial Actions
1. Engendering public opposition. 40 C.F.R. § 1508.27(b)(4).
2. Must be pretty controversial.
3. Does not qualify if agency made a good faith effort to address concerns.
Climate Change
1. Differing case law. Depends on how attenuated the causal relationship is.
Terrorist Risks
1. Most courts – Only a speculative risk and thus not covered.
Other Statutes
1. Usually, agencies must comply with NEPA even if they have complied with their own organic statutes.
If there is uncertainty about whether an EIS is required, CEQ requires EIS. Babbitt.
Lack of information  EIS is required. Ocean Advocates.

Scope of EIS

Next Question: If an EIS is required, what is its scope?
1. Alternatives to proposed action.
2. Segmentation of larger projects.
3. Interrelated Projects – Multiple, smaller EISs; larger, comprehensive EIS.
Alternatives
1. CEQ – Heart of NEPA. 40 C.F.R. § 1502.14.
  1. 40 C.F.R. § 1508.25(b)(1)–(3) – Alternatives:
    1. No action alternative.
    2. Other reasonable courses of actions.
    3. Mitigation measures (not in the proposed action).
2. § 102(2)(C)(iii) – EIS must contain “alternatives to the proposed action.”
3. § 102(2)(E) – “Study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.”
4. Primary Alternative – An action other than the one an agency has proposed that would substitute for the proposed action and accomplish the agency’s goals in a different manner.
  1. E.g., switching from nuclear power plant to coal power plant.
  2. Morton (D.C. Cir. 1972).
    1. Read alternative requirement broadly.
    2. Must discuss all relevant primary alternatives in EIS, even if beyond scope of agency’s statutory authority. E.g., legislative action.
    3. Subject to “rule of reason.”
  3. Vermont Yankee (U.S. 1978).
    1. Affirmed “rule of reason.”
    2. Alternatives must be feasible; need not consider remote or speculative alternatives.
    3. Content of alternatives is evolving, and what an agency will consider depends on the available information.
    4. Deferential role of courts.
5. Secondary Alternative – An action other than the one an agency has proposed that retains the agency’s proposal but modifies it to reduce its adverse environmental effects.
  1. E.g., changing location or materials.
  2. Courts are more likely to strike down an EIS for this reason, than for failing to consider primary alternatives.
6. “No Action” Alternative – Decision to abandon project. Maintain status quo.
  1. 40 C.F.R. § 1502.14(2).
  2. Establishes baseline.
7. Purpose and Need Requirement
  1. 40 C.F.R § 1502.13.
  2. If you narrow the statement of purpose, you narrow the range of alternatives to consider.
  3. If an alternative is incompatible with the purpose and need of the project, an agency need not consider it.
  4. Courts are deferential to agency statements of purpose.
8. 40 C.F.R. § 1502.14(c) – Alternatives outside scope of statutory authority.
  1. Are agencies able to consider alternatives outside the scope of their statutory authority?
    1. If an agency cannot pursue a particular option, what is the point of forcing them to consider such options?
    2. If an agency is to reduce potential adverse environmental impacts, then it should consider all possible alternatives?
  2. Case law is not clear on this question. Courts are likely to agree with CEQ regulation, but there is a point at which unfeasible alternatives no longer warrant consideration.
9. Range of Alternatives
  1. Limited by feasibility if they appear comprehensive.
  2. Courts are deferential.
10. Special provisions for DOT, FAA and aviation projects, and forestry. See p. 282.
Segmentation
1. See E&E 112–14.
2. Problem
  1. Agencies break a single, consolidated project into smaller projects. Each project in isolation has effects well below the line whereby an EIS is required, and therefore, a FONSI is appropriate. The agencies consider each in isolation and say that they are independent and have nothing to do with each other.
  2. Another Path – Segment a large project into smaller chunks and prepare EISs for each. These EISs, however, will portray the effects of the smaller projects as minimal.
3. Highway Segmentation – Usually approved.
4. Purpose – Helps to show either independent utility (segmentation) or part of larger project (no segmentation).
5. Interrelated Projects
6. Staged Projects
7. Florida Keys Citizens Coalition (S.D. Fla. 2005).
  1. Agency was justified in limiting review of bridge alone.
  2. No need to consider cumulative effects - Court said that any cumulative analysis would be speculative. Therefore, they were not required to consider projects with unclear parameters. 40 C.F.R. § 1508.25(2).
Project Impact Statements (PEIS)
1. A number of related actions in one impact statement.
2. Site-Specific Impact Statements – Need decided later.
  1. See p. 293.
  2. § 1502.20.
3. Broad Federal Action – Require a PEIS.
  1. Criteria – 40 C.F.R. 1502.4(c).
4. Do a bunch of small actions gathered together constitute a proposal?
  1. Kleppe (U.S. 1976).
    1. § 1508.23 – Defines when a proposal occurs.
      1. Kleppe requires an agency announcement that a proposal exists.
      2. Regulation seems to contemplate proposals before an agency announcement.
      3. “The effects can be meaningfully evaluated” – Qualifier on goal-plus means test.
      4. “A proposal may exist in fact as well as by agency declaration that one exists.” – Court can declare the existence of a proposal when an agency declares one. This much, at least, is consistent with Kleppe.
        
        See NRDC v. Hodel (Court concluded that a proposal existed though agency had not announced one.).
    2. No proposal  No EIS/NEPA did not apply.
      1. No EIS required at program planning stage.
    3. If numerous actions are proposed at the same time, a PEIS may be required if the proposed actions have a cumulative environmental impact on the region.
    4. Kleppe allows an agency to define when a proposal occurs. Until the agency announces to the world that there is a proposal, there is no proposal.
5. Voluntary Programmatic EIS
  1. Section 1508.28 – Definition of “tiering.”
    1. “Tiering refers to the coverage of general matters in broader environmental impact statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared.”
  2. May minimize burdens of NEPA compliance.
    1. Avoids piecemeal approach, which consumes more costs.
    2. (1) Programmatic EIS will mean that individual EAs will not rise to level where EISs are required.
    3. (2) Also will allow narrower, site-specific EISs.
    4. This is called “tiering.”
  3. Danger – Programmatic EIS may be broad and not very specific. Then, when agency refers back to programmatic EIS when preparing site-specific EISs, it avoids the burden of analyzing issues with any specificity. Tiering is a danger in this way.
6. Connected, Cumulative, and Similar Actions
  1. Must be considered in same EIS.
  2. 40 C.F.R. § 1508.25(a).
  3. See pp. 293–94; E&E 111.
  4. Connected – Closely related and therefore should be discussed in the same impact statement.
    1. Actions are connected if they:
      1. Automatically trigger other actions which may require environmental impact statements.
      2. Cannot or will not proceed unless other actions are taken previously or simultaneously.
      3. Are interdependent parts of a larger action and depend on the larger action for their justification.
    2. If actions are connected in one of these ways, agency must prepare a single EIS.
    3. Thomas v. Peterson (Page 294) – Cannot harvest timber unless you have roads.
  5. Cumulative – When viewed with other proposed actions have cumulatively significant impacts and should therefore be discussed in the same impact statement.
    1. Sequential
    2. Same kind of activity
    3. May need to be discussed in a single EIS.
  6. Similar – When viewed with other reasonably foreseeable or proposed agency actions, have similarities that provide a basis for evaluating their environmental consequences together, such as common timing or geography.
    1. An agency may wish to analyze these actions in the same impact statement. It should do so when the best way to assess adequately the combined impacts of similar actions or reasonable alternatives to such actions is to treat them in a single impact statement.
    2. May or may not need to be evaluated in a single EIS.

Adequacy of EIS

See Salzman 329–32.
Next Question: Is the EIS that the agency has prepared adequate?
1. More difficult to show that an EIS is inadequate than to show that an agency should have, but did not, prepare an EIS.
Contents of EIS
1. 42 U.S.C. § 4332 (2)(C)(i)–(v).
  1. Focus
    1. (i) the environmental impact of the proposed action.
    2. (iii) alternatives to the proposed action.
  2. Secondary
    1. (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented.
Substantive v. Procedural Problem
1. See E&E 130–31.
2. NEPA is entirely procedural. It does not mandate particular results but simply describes the necessary process.
3. Substantive Duty – Agency’s responsibility to reject or modify a proposal for action because of unsatisfactory EIS.
4. Procedural Duty – Duty to comply with NEPA procedures for preparation of EIS.
5. Judicial Review
  1. Court cannot reverse an agency’s decision if NEPA procedure has been followed.
  2. Deferential
  3. Standards
    1. Arbitrary and Capricious Standard
    2. Rule of Reason. See pp. 314–15.
  4. Reversing a NEPA decision:
    1. Argue that agency decision is arbitrary and capricious under APA.
    2. A & C argument must be made under agency’s organic statute, not NEPA. Must make reference to factors in substantive statute, which may or may not be environmental.
    3. Can use NEPA noncompliance as evidence that agency violated its organic statute. If agency takes an environmentally harmful action after an EIS, this likely will not comply with the purpose of its organic statute.
    4. This is a way to use an EIS to reverse an agency decision.
  5. Reversing Based on NEPA
    1. Must show procedural defects.
      1. An EIS should have been prepared and was not.
      2. An EIS was prepared, but it was inadequate.
  6. Sylva v. Linn (1st Cir. 1973) – Elaborating three-part judicial review test.
  7. Typical Remedy – Preliminary injunction until court makes final decision.
    1. All NEPA cases should be accompanied by requests for preliminary injunctions. They should include lists of the equities:
      1. Harm caused by failure to issue an injunction; and
      2. Whether public interest supports issuance of preliminary injunction.
    2. Cases have made this more difficult. Winter; Monsanto.
      1. Raised the threshold showing that a plaintiff must make that it has or will suffer irreparable injury. This showing is an absolute prerequisite.
      2. Denied that an injunction is the presumptively proper remedy for a NEPA violation. Imposes more rigorous showing requirement on plaintiff.
Cost-benefit analysis not required by NEPA.
1. See E&E 126–27.
Expert Opinion
1. See pp. 307–08.
2. Courts do not resolve disagreements.
3. Agency may choose to rely on one expert.
4. Reasoned scientific explanations are required however.
CEQ requires consideration of direct, indirect, and cumulative environmental consequences of proposed action and any alternatives. Grand Canyon Trust (D.C. Cir. 2002) (requiring consideration of five factors in order to conduct meaningful cumulative impact analysis).
1. Cumulative Impact Problem is different than segmentation problem. See pp. 313–14.
2. Indirect Effects – Must be considered in EIS.
  1. See p. 316.
  2. § 1508.3(b).
Mitigation Measures
1. See E&E 129–30.
2. Must be considered in EIS. Robertson (U.S. 1989).
  1. Need not be formulated and adopted. Would make NEPA substantive.
  2. NEPA imposes a duty only to discuss mitigation, but no duty to actually mitigate.
3. Organic statute may require agency to mitigate, but not NEPA.

Supplemental EIS

See pp. 324–25; E&E 117–18.
Section 1502.9(c)(1) - Agencies: (1) Shall prepare supplements to either draft or final environmental impact statements if: (i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
Either obligation may trigger an a supplemental EIS.
Norton – Obligation to supplement only applies as long as there is an ongoing, major, federal action. Once it stops, there is no need to prepare a supplemental EIS.
Marsh (U.S. 1989).
1. Follows rule of reason in determining whether EIS is required.
2. Set out criteria to determine whether SEIS is necessary.

Endangered Species Act

Reasons to Be Concerned About Biodiversity
1. Utilitarian (Predominant Rationale)
  1. Plants and animals have uses directly and indirectly benefiting people, and we don’t know the extent of this. E.g., medicine.
    1. See p. 335.
  2. Healthiest ecosystems are the richest in biodiversity. Better adaption when change occurs.
  3. Canary in the Coalmine – Endangered species are the canaries. Signal problems with ecosystems.
2. Aesthetic
  1. Preserving natural beauty.
  2. Nature and animals as powerful symbols worth preserving.
3. Ethical
  1. Present generation has a moral obligation to provide an equally rich biological stock to future generations. We should not use irreplaceable resources to satisfy our piggish, short-term needs.
  2. Other organisms have intrinsic worth, and we should not contribute to their disappearance.
Administration – Two Agencies
1. FWS
2. National Marine Fisheries Service (NMFS or NOAA)
Purposes of ESA
1. Passed in 1973.
2. 16 U.S.C. § 1531(b) – “The purposes of this chapter are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.”
  1. Definition of Conserve – “The terms “conserve”, “conserving”, and “conservation” mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” § 1532(3) (emphasis added).
    1. Illustrates comprehensive protection afford by ESA. See also §§ 1538; 1533(d); 1533(c)(2); 1540(c), (g). See pp. 349–50.
3. Most members of Congress thought they were protecting, e.g., bald eagles, grizzly bears, etc., and not, e.g., beetles.
  1. See TVA v. Hill (discussing congressional intent on pp. 350–51).
Most Hated Environmental Statute – Constrains development. Most hated and ridiculed federal environmental statute by developers. Most apparent when it protects seemingly unimportant species.
Relevant Sections
1. 16 U.S.C. § 1533 – Process of listing endangered or threatened species.
  1. § 1532 – Definitions
  2. Endangered v. Threatened
    1. Endangered – “The term “endangered species” means any species which is in danger of extinction throughout all or a significant portion of its range . . . .” § 1532(6). See also p. 356 (discussing range).
      1. Protected more thoroughly than threatened species.
    2. Threatened – “The term “threatened species” means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” § 1532(20).
    3. Difference between “endangered” and “threatened” is degree and immediacy of risk of extinction.
  3. Species – “The term “species” includes any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” § 1532(16).
    1. Distinct populations not always recognized. See pp. 356–57.
2. 16 U.S.C. § 1538 – Prohibits taking of endangered species by private individuals or government agencies.
  1. § 1539 – Exceptions.
3. 16 U.S.C. § 1536 (§ 7) – Imposes procedural and substantive obligations on federal government.
  1. Applies to federal agencies, not private individuals.
  2. Has procedural and substantive components, unlike NEPA.
  3. Substantive Obligations
    1. § 1536(a)(1) – “Carrying out programs for the conservation of endangered species and threatened species.”
    2. § 1536(a)(2) – “Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat.”
Listing
1. Initial Listing Decision – Secretary of Interior has exclusive authority to determine whether a species is endangered or threatened and to ascertain the factors leading to such a state. 16 U.S.C. § 1533(a)(1).
  1. Affirmative, categorical command – “Each Federal agency shall . . . insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species.” § 1536(a)(2).
  2. Factors Considered – “The Secretary shall make determinations required . . . solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices, within any area under its jurisdiction, or on the high seas.” § 1533(b)(1)(A).
  3. Economic Costs of Listing – NO CONSIDERATION. TVA v. Hill; Arizona Cattle Growers’ Assoc.
    1. Statute imposes an absolute prohibition whatever the cost. Sunk costs do not matter. TVA v. Hill (requiring dam operations to stop to save an endangered species, regardless of the economic cost).
    2. No remedy when ESA listing requires a project to cease operations  ESA prohibits utilitarian calculations and speaks wholly in favor of endangered species conservation. TVA v. Hill.
      1. Judicial Deference – Court recognizes its ignorance as to value of species and decides not to allow it to be destroyed. TVA v. Hill.
      2. Separation of Powers – Congress clearly did not intend this sort of balancing to occur. Court may infringe Congress’ authority. TVA v. Hill.
  4. Listing is necessary to give species full protection of ESA.
2. Five factors under which a species may be listed. One must be met. § 1533(a)(1)(A)–(E).
  1. The present or threatened destruction, modification, or curtailment of its habitat or range;
  2. Overutilization for commercial, recreational, scientific, or educational purposes;
  3. Disease or predation;
  4. The inadequacy of existing regulatory mechanisms; or
  5. Other natural or manmade factors affecting its continued existence.
3. Neither EA nor EIS is required for listing. See E&E 588–89.
4. Once listed, “the Secretary shall issue such regulations as he deems necessary and advisable to provide for the conservation of such species.” § 1533(d).
5. Recovery Plans
  1. See 16 U.S.C. § 1533(f); E&E 589.
  2. Required for each listed species.
  3. Most courts think recovery plans are not enforceable.
6. Judicial Review – Reviewable because based on a scientific record.
  1. Courts intervene only if (1) significant departure from scientific mandate of statute or (2) procedural violations.
Designation
1. See E&E 589–92; Salzman 281–301.
2. Stat. Mandate – “The Secretary, by regulation promulgated in accordance with subsection (b) of this section and to the maximum extent prudent and determinable . . . shall, concurrently with making a determination . . . that a species is an endangered species or a threatened species, designate any habitat of such species which is then considered to be critical habitat.” 16 U.S.C. § 1533(a)(3)(A).
  1. Definition of Critical Habitat – 16 U.S.C. § 1532(5).
  2. Decision Whether to Designate – NO ECONOMIC CONSIDERATION. Salzman 291.
  3. Decision How Much and Which Habitat to Designate – ECONOMIC COSTS MAY BE CONSIDERED. Salzman 291.
    1. See p. 357 (discussion range of land that may be designated).
  4. Factors – “The Secretary shall designate critical habitat, and make revisions thereto, . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat.” § 1533(b)(2).
    1. May not choose not to designate if it will result in extinction. § 1533(b)(2).
    2. Economic impact of listing is irrelevant. § 1533(b)(1)(A) (determinations based on “best scientific and commercial data available”).
    3. Broader range of factors than at listing stage.
  5. “The Secretary may exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.” § 1533(b)(2).
    1. Cost-Benefit Analysis – Allows secretary to exclude areas from critical habitat if economic impact outweighs value of designating the area.
3. Critical habitat designation need not identify point in time at which ESA’s protections no longer will be necessary. Homebuilders of N. Cal. v. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010).
  1. No precise date is necessary for compliance.
  2. FWS may determine which elements are necessary without determining precisely when conservation efforts under ESA are no longer necessary.
  3. ESA requires a determination of criteria for when a species will be conserved, at which point it adopts a recovery plan.
  4. Congress required specific date identification in other contexts, but it did not in this regard, so the Court determined that it is not necessary.
4. Designation should occur concurrently with listing. § 1533(a)(3)(A).
  1. Often does not occur. See p. 357.
  2. Non-designation does not excuse non compliance with ESA.
5. Economic Cost of Designation
  1. See Glicksman’s Power Point slides. Very helpful.
  2. Which approach is best is very debatable. See Arizona Cattle Growers’ Assoc. pp. 353–54 for a defense of the baseline approach.
  3. Baseline Approach – “Under the baseline approach to economic analysis under the Endangered Species Act, any economic impacts of protecting a species that will occur regardless of the critical habitat designation--in particular, the burdens imposed by listing the species--are treated as part of the regulatory "baseline" and are not factored into the economic analysis of the effects of the critical habitat designation.” Arizona Cattle Growers’ Assoc. (using baseline approach)
    1. Baseline approach ignores economic impact of listing when judging the economic impact of critical habitat designation. ESA requires economic consideration for the latter, but not the former.
    2. If the entirety of the economic impact would be attributable to listing, then the agency ignores it when considering the economic impact of designation. It is irrelevant.
  4. Coextensive Approach – “Under the co-extensive approach, the agency must ignore the protection of a species that results from the listing decision in considering whether to designate an area as critical habitat. Any economic burden that designating an area would cause must be counted in the economic analysis, even if the same burden is already imposed by listing the species and, therefore, would exist even if the area were not designated.” Arizona Cattle Growers’ Assoc. (rejecting co-extensive approach); New Mexico Cattle Growers Assoc. (using co-extensive approach).
    1. Agency would consider all of the economic impact after designation, including that caused by listing. It’s all relevant as long as it relates to designation.
6. After critical habitat is designated, the ESA requires that “each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” § 1536(a)(2).
  1. Applies to both listing and designation.
  2. Applies only to discretionary agency actions. National Association of Home Builders (citing 50 C.F.R. § 402.03).
    1. “We read 50 C.F.R. § 402.03 to mean what it says: that § 1536(a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions that an agency is required by statute to undertake once certain specified triggering events have occurred.”
  3. Definition of “Destruction or Adverse Modification” – “Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.” 50 C.F.R. § 402.02.
  4. Definition of “Jeopardy” – “Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02.
  5. Gifford Pinchot.
  6. Cape Hatteras (D.D.C. 2004). See p. 355.
    1. Discussed baseline approach and “functional equivalence” approach.
    2. Functional Equivalence Approach Explained – FWS: “[A] project that is unlikely to jeopardize the continued existence of a species is not likely to destroy or adversely modify critical habitat. Therefore, on occupied critical habitat, consultations and project modifications are likely to flow from the listing of the species, and no additional consultations or project modifications are likely to result as a “but for” effect of the critical habitat designation. . . . Circuit courts are uncomfortable with this syllogism that threatens to, as a practical matter, remove from consideration the economic analysis required by statute.”
    3. Reactions
      1. 10th Cir. – Invalidated baseline approach.
      2. 5th, 9th Cir. – Invalidated functional equivalence approach.
  7. Impact of Gifford Pinchot and Cape Hatteras.
    1. Any project that adversely modifies critical habitat probably already impairs survival, which will lead to listing as an ES.
    2. These cases suggest that some adverse-modification actions may threaten recovery, but not survival, and thus will fall outside the listing arena.
7. 16 U.S.C. § 1533(b)(2) – Secretary may exclude an area from critical habitat if economic benefits outweigh conservation benefits.  UNLESS EXTINCTION.
Agencies’ Compliance with 16 U.S.C. § 1536(a)(2). See p. 367 (note 2); E&E 590–91.
1. Step One – Notify FWS (or other agency) of whether agency is aware of any listed species affected by the project.
2. Step Two – FWS determines whether the project would affect any listed species.
  1. Gifford Pinchot. See p. 368.
    1. Habitat Proxy – EPA may assess impact of proposed action on species habitat, rather than assessing the impact on the species itself. The one serves as the proxy of the other.
    2. Species may be jeopardized by impacts on portions of their environments not designated as critical habitat. Looking at different habitats under the no-jeopardy and adverse modification prongs.
3. Step Three – FWS may then tell the agency that it may proceed without any further ESA concerns. Happens at the end of informal consultation.
4. Step Four – If there would be jeopardy or adverse modification, then FWS must engage in formal consultation with agency.
  1. Negative impacts on critical habitat need not be permanent to amount to adverse modification.
5. Step Five – After formal consultation, FWS issues a biological opinion as to whether project is likely to result in jeopardy or adverse modification measures. FWS must include mitigation measures in its biological opinion. Action agency is not required to implement recommended and prudent alternatives. (That’s why they’re recommended.) However, most agencies implement the mitigation measures because if they fail to they may be in violation of two ESA provisions.
  1. Practical Implications of Accepting RPAs – This will affect scope of the projects. It may reduce the temporal duration of the project.
  2. See National Association of Home Builders (pp. 358–59).
  3. Judicial Review of Biological Opinions – Arbitrary and capricious standard.
    1. See pp. 367–68.
6. After jeopardy opinion  agency must (1) terminate project, (2) implement RPAs, or (3) seek exemption from God Committee.
Reconciling Incompatible Statutes. National Association of Home Builders.
1. Court disfavors repeals by implication. National Association of Home Builders.
  1. Court will not find one unless Congress’ intent to repeal an earlier statute is clear and manifest, i.e., absolutely necessary to give any meaning to later statute.
  2. § 1536(a)(2) – “Reading the provision broadly would thus
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