New Lawsuit Challenges Secretary's Assumption that Large Oil Spills are Unlikely

On July 26, 2010, the Center for Biological Diversity filed another lawsuit challenging the Department of the Interior's regulation of offshore drilling, alleging that the Department failed to properly assess potential impacts on endangered and threatened species from large scale oil spills.  The lawsuit, which was filed in the United States District Court for the District of Columbia, attacks the "policy" and "decisions" of the former Minerals Management Services (now the Bureau of Ocean Energy Management, Regulation, and Enforcement) that exploration drilling poses de minimis risk to endangered and threatened species, and therefore is subject to a categorical exemption from full environmental review.  The lawsuit seeks to prohibit the use of such categorical exclusions for future drilling projects, and force the Department to conduct a "full and adequate" environmental analysis.

National Research Council Bay-Delta Committee Update

Following the resignations of Dr. Pat Glibert and Dr. Michael McGuire from the National Research Council’s Committee on Sustainable Water and Environmental Management in the California Bay-Delta, three new members were named to the Committee.  The three new members are Dr. John Connolly, Dr. Hans Paerl, and Dr. Stephen Monismith.  A complete list of the committee members with brief accompanying biographies is available here.

The Committee met on July 13 in Sacramento to discuss its second task.  The agenda for that meeting is available here.  At the July 13 meeting, representatives of the federal government asked the Committee to consider amending its existing task by agreeing to conduct a review of the draft Bay Delta Conservation Plan (BDCP).  The draft BDCP is due out in late 2010.  A schedule for completion of the BDCP is available here.  It is unclear whether the Committee will agree to take on the additional task proposed by the federal government.  It is also unclear whether Congress must authorize the proposed change to the Committee's existing task statement and appropriate additional funding for the purpose of completing the additional task.

Campaign to Use Endangered Species Act to Regulate Greenhouse Gas Emissions Marches On

American PikaIn an article published in Yale Environment 360 on July 22, 2010, Todd Woody chronicles the ongoing campaign by various environmental organizations to use the Endangered Species Act to compel the U.S. Fish and Wildlife Service and National Marine Fisheries Service to regulate greenhouse gas (GHG) emissions.

The article, Enlisting Endangered Species As a Tool to Combat Warming, recounts the perils facing the American Pika, previously blogged about here,  to illustrate the broader strategy aimed at forcing the Services to regulate GHG emissions.

As noted in our blog post, Fish and Wildlife Service's to Review Prospect of Listing Whitebark Pine Due to Climate Change, the Service recently announced a 90-day finding that listing the whitebark pine as endangered or threatened due to climate change may be warranted.  In addition, the Fish and Wildlife Service may adopt rules listing several species of penguins due to climate change.  The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species.  But the Fish and Wildlife Service declined to list the American pika as endangered or threatened due to climate change.

As Mr. Woody notes in his article, these listing decisions have been spurred by petitions and lawsuits filed by several environmental organizations with the aim of not only protecting the species from extinction, but utlimately requiring the Services to require emitters of GHG to reduce or mitigate their emissions.  But, so far, the utimate aim has been frustrated by resistance from both the Bush and Obama Administrations and doubts about the validity of the legal theory underlying the overarching strategy.

Fish and Wildlife Service to Review Prospect of Listing Whitebark Pine Due to Climate Change

The Fish and Wildlife Service announced a 90-day finding that listing the whitebark pine as endangered or threatened under the Endangered Species Act may be warranted.    The Natural Resources Defense Council (NRDC) previously petitioned the Service to list the whitebark pine in 2008.  It filed a lawsuit in March 2010 to force the Service to act on the listing petition.  In its petition, NRDC claimed that climate change posed one of the most significant threats to whitebark pine.  According to NRDC, whitebark pines are being threatened by several factors, which are exacerbated by climate change, including being attacked by mountain beetles that are now capable of moving to higher elevations due to rising temperatures.   

The Service's decision initiates a 60-day period for the public to provide information on the status of the species.  After the Service has conducted its status review, it will issue a 12-month finding on the petition, which will address whether listing is warranted.  The Service's 90-day finding does not necessarily mean that the Service's 12-month finding will result in a "warranted" conclusion because the 12-month finding is based on a more rigorous "best scientific and commercial data" standard. 

The Service's decision is one of several recent listing decisions involving climate change.  The Service may adopt rules listing several species of penguins due to climate change.  The National Marine Fisheries Service previously determined that a petition to list 83 species of coral due to climate change presented substantial information indicating that listing might be warranted for 82 of the species.  However, the Service declined to list the American pika as endangered or threatened due to climate change. 

District Court Finds Biological Opinion for Water Diversions on Yuba River Arbitrary and Capricious

In South Yuba River Citizens League v. National Marine Fisheries Service (PDF), the United States District Court for the Eastern District of California found that the National Marine Fisheries Service (NMFS) violated the Administrative Procedure Act in concluding that water diversion on the Yuba River would not jeopardize or adversely modify the critical habitat of the Central Valley spring-run Chinook salmon, Central Valley steelhead, and North American green sturgeon.

The court found that the NMFS biological opinion (BiOp) failed to provide a rational connection between the factual determination that the project would perpetuate unmitigated stressors and the conclusion that those stressors would not jeopardize the listed fish.  The court reiterated that an agency action can only “jeopardize” a species’ existence if that “agency action causes some deterioration in the species’ pre-action condition,” but that these effects can only be understood in the context of the current status of the species, the environmental baseline, and future cumulative effects. The court held that in order to determine that other stressors identified in the BiOp will not cause a decline in the identified viability factors for the species, “the BiOp must discuss (through some method) the magnitude of the stressors’ impact, the populations’ ability to tolerate this impact, and the reason why any decline will not reduce the overall likelihood of survival or recovery.”

The court also found that the BiOp failed to consider various other aspects of the problem, including hatcheries, the San Francisco Bay Delta, poaching, the species’ overall viability, and global warming. The court found that evidence in the administrative record suggested that each of the first four stressors is one that is likely to adversely affect the listed species and that failure to consider the effect of the stressor on the listed species rendered the BiOp’s no-jeopardy conclusion arbitrary and capricious. As to global warming, the court stated that it “cannot conclude that global warming’s potential impacts are so slight that NMFS could ignore them without discussion” and that while the BiOp discussed present impacts on water temperature, it did not address whether global warming will alter temperature or flow. Therefore, by failing to discuss global warming, NMFS failed to address an important part of the problem.

With respect to the BiOp’s critical habitat analysis, “the BiOp concluded that the project would not adversely modify critical habitat because the project’s net ‘impacts’ on habitat were at worst neutral when measured against conditions immediately preceding the BiOp.” The court concluded that this conclusion was arbitrary and capricious as the court could not discern the reason underlying the critical habitat analysis.

Another Lawsuit Filed Challenging the Federal Emergency Management Agency's Compliance With The Endangered Species Act

On July 13, 2010, the National Wildlife Federation and Florida Wildlife Federation filed a complaint in the United States District Court for the Southern District of Florida alleging that the Federal Emergency Management Agency's ("FEMA") failure to consult with federal wildlife agencies on the potential impacts of implementing the National Flood Insurance Program ("NFIP") in Florida is a violation of the Endangered Species Act.  Specifically, the complaint alleges that implementation of the NFIP "promotes, encourages, and influences residential and commercial development along Florida's beaches," which "impairs essential habitat functions of five species of threatened or endangered sea turtles."  The plaintiffs seek an order compelling FEMA to, among other things, consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to insure that the implementation of the NFIP does not jeopardize the threatened and endangered sea turtles.

Similar actions have been filed throughout the United States, some of which have resulted in published decisions ordering FEMA to consult with federal wildlife agencies.  For example, on April 1, 2008, the U.S. Court of Appeals for the Eleventh Circuit held that FEMA was required to consult with federal wildlife agencies regarding its administration of the NFIP because of potential impacts to various endangered and threatened species located in the Florida Keys.  Similarly, in 2004 the United States District Court for the Western District of Washington held that FEMA was required to consult with the National Marine Fisheries Service regarding its administration of the NFIP because of potential impacts to the Puget Sound chinook salmon.

In addition to the latest lawsuit filed by the National Wildlife Federation and Florida Wildlife Federation, in 2009 WildEarth Guardians filed two similar lawsuits against FEMA in the United States District Court for the District of Arizona and the United States District Court for the District of New Mexico.  That same year, a similar lawsuit against FEMA was also filed in the United States District Court for the District of Oregon, and the Coalition for a Sustainable Delta and Kern County Water Agency filed a similar lawsuit against FEMA in the the United States District Court for the Eastern District of California.  Except for the litigation filed in the District of Oregon, all of these matters are currently pending resolution; the Oregon matter is now resolved as the result of a stipulated settlement

Ninth Circuit Says Endangered Species Critical Habitat Not LImited to Where the Species Resides; Agency May Restrict Analysis of Economic Costs of Critical Habitat

In Arizona Cattle Growers’ Association v. Salazar (PDF), the U.S. Court of Appeals for the Ninth Circuit upheld a Fish and Wildlife Service (“Service”) determination that under the Endangered Species Act (“ESA”), critical habitat for the threatened Mexican spotted owl is not limited to areas where the owl actually resides, but can encompass areas that the owl uses with sufficient regularity that it is likely to be present during a reasonable span of time.  That standard means the thousands of miles of migratory bird flyways used by ESA-listed birds could become protected critical habitat. The decision also held that when implementing the ESA’s requirement to decide whether the costs of designating an area as critical habitat outweigh the benefits, the Service need not include costs caused by the critical habitat designation if such costs can also be attributed to listing the species.

Arizona Cattle Growers’ made two arguments on appeal: (1) that the Service impermissibly treated areas in which no owls are found as “occupied" under the ESA, and (2) in the Service’s determination of the economic impacts of the critical habitat designation, the Service used a “baseline” approach that did not account for economic impacts of the critical habitat designation that are also attributable to the listing decision.

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