George Mannina

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George Mannina has more than three decades experience with environmental litigation and government relations. He has demonstrated expertise with oceans and fisheries law, the Endangered Species Act (ESA), the Superfund Natural Resource Damages and the Clean Water Act (CWA), with a particular emphasis on CWA jurisdictional issues. Mr. Mannina represents Fortune 50 companies, industry organizations and state and national governments, developing successful strategies to solve client issues through litigation, government relations or a blend of both.

With an intimate knowledge of the statues, including experience drafting related legislation or amendments, Mr. Mannina has won favorable Supreme Court rulings, and major revisions or amendments of environmental laws.

Prior to entering private practice, Mr. Mannina served for 14 years on Capitol Hill, including eight years as Counsel to the House of Representatives Subcommittee on Fisheries, Wildlife Conservation, and the Environment and two years as the Chief Counsel and Staff Director for the Minority Members of the House of Representatives Committee on Merchant Marine and Fisheries.

District Court Rejects Species Delisting Not In Accordance With The Species Recovery Plan

In a recently issued decision (pdf), a U.S. District Court overruled a Fish and Wildlife Service (FWS) decision to delist the West Virginia Northern Flying Squirrel because the delisting rule was not consistent with the species’ recovery plan and the recovery plan can only be modified after notice and comment rulemaking. Friends of Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2010).

The squirrel was first listed (pdf) in 1985. In 1990, FWS issued a recovery plan (pdf) outlining four criteria to be met for delisting. In 2006, FWS conducted a species review (pdf) that recommended delisting. That recommendation was not based on the recovery plan criteria but on a reconsideration of the five criteria set out in section 4(a)(1) of the Endangered Species Act (“ESA”) for listing a species. The final delisting rule (pdf) was published in 2008.

Plaintiffs, a group of six environmental organizations and one individual, argued that when FWS establishes recovery criteria for a species in a formally adopted recovery plan then FWS is required to abide by those criteria in any delisting decision until such time as the recovery plan is amended. FWS countered that the ESA says a species can be delisted based on reconsidering the five ESA factors used to list a species and that a recovery plan is only a guidance document.

Rejecting FWS’ argument, the Court first found the ESA requires FWS to “develop and implement” recovery plans.  Thus, if the recovery plan sets out delisting standards, FWS must consider both those standards as well as the five statutory listing standards. The Court next found the FWS delisting rule had ignored two of the recovery plan delisting standards. The Court held that recovery plans can only be amended by notice and comment procedures and FWS had not done so. FWS’ argument that it had complied with the intent of the recovery plan fell on deaf ears.

The Court vacated the delisting rule until the delisting was done in compliance with the delisting factors and the recovery plan. If FWS wants to change the factors in the recovery plan, it must do so using notice and comment procedures.  FWS has reinstated (pdf) the listing rule. 

Federal Government Explains Guidelines Used To List Species as Threatened or Endangered

On December 22, 2010, the Department of Justice filed a supplemental brief (PDF) in the United States District Court for the District of Columbia explaining the guidelines used by the Fish and Wildlife Service (FWS) in deciding if a species should be listed as threatened or endangered under the Endangered Species Act (ESA).  The brief was filed in response to the court's request for a further explanation (PDF) regarding why FWS listed the polar bear as a threatened, and not an endangered, species.  Environmental groups had filed suit arguing the polar bear should be listed as endangered.  Center for Biological Diversity v. Salazar, No. 1:08-cv-2133 (D.D.C.).  The federal government's brief attached an explanation and analysis prepared by FWS.  In its memorandum, FWS said the ESA does not provide any quantitative measures for distinguishing between species that are threatened or endangered but FWS has generally relied on four criteria to determine whether a species qualifies as endangered.  The four criteria are: (1) the species is facing a catastrophic threat with an imminent and certain risk of extinction, (2) due to limited range or population size the species is vulnerable to extinction, (3) a species that was previously widespread has been reduced to critically low numbers or restricted ranges, and (4) a species that is still widespread has suffered ongoing reductions in its numbers or range as a result of factors that have not been abated.  FWS then stated the guidance provided by these four factors is not binding because listing determinations also require consideration of individual species characteristics.  As to the polar bear, FWS' memorandum argued it is not endangered because it is not currently on the brink of extinction since its present condition is stable or increasing in most of the populations for which data is available, and declining slightly in a minority of such populations.  "Overall, both its range and its numbers were relatively constant.”  The Plaintiffs have until January 18 to file a responsive brief and the court will decide the case thereafter.

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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Gulf of Mexico Oil Spill and Its Implications

Home to endangered species, marine mammals, and nationally significant commercial and recreational fishing resources, the Gulf of Mexico ecosystem is under assault. When the Deepwater Horizon oil platform exploded on April 20, sinking two days later, it began spewing oil into the Gulf’s ecosystem. Recalling that the infamous Exxon Valdez oil spill released just over 11 million gallons of oil into Alaska’s Prince William Sound, on May 27 scientists estimated that the Gulf spill, hopefully now capped, released between 17 million and 27 million gallons of oil, making it the largest spill in U.S. history

Already oil is washing ashore along the Gulf Coast states, but the damages were felt from the very first days of the spill. Many charter boat fishermen watched helplessly as virtually all of their spring, summer, and fall bookings canceled. The multi-million dollar shrimp fishery, together with other major Gulf commercial fisheries, face economic ruin as the spreading oil approaches critical nursery and habitat areas. Federal and state agencies are mobilizing for the expected strandings of marine mammals and other wildlife populations. Valuable wetland and marsh areas may be lost.

Sadly, scientists who assess and manage all of these resources have varying degrees of data to assess the impacts of the spill. In the case of the deep ocean ecosystem where much of the spilled oil resides, scientific knowledge is spotty at best. It may be years before the full impact of this spill on the Gulf’s ecosystem is known. In some instances, we may never know because we do not have the environmental baseline data for the environment that existed before the spill.
Federal and state agencies are in the process of assessing the economic and environmental damages from the spill. But if the Exxon Valdez case is any guide, it could be 20 years before we finish the legal battles regarding who pays and what environmental restoration is required. Chief among these battles will be the process by which natural resource agencies assess natural resource damages (“NRD”) under the Oil Pollution Act (“OPA”). The OPA NRD provisions parallel those in Superfund. However, Superfund’s NRD provisions have generated substantial debate about the process by which damages are assessed and one can expect this debate to be replayed in OPA with respect to the Gulf spill. Already industry and environmental experts are lining up for what promises to be an epic battle.

Members of Congress are also closely watching the impact of the oil spill on their constituents, industries, and the ecosystem. As this drama unfolds, the need for biological information will be critical. And the legal and legislative battles that will flow from this spill may set legal precedents and highlight the need for regulatory and legislative changes.