In December 2015, Defenders of Wildlife employees published an article in the Proceedings of the National Academy of Sciences, in which they compiled and conducted basic statistical analyses of data regarding section 7 consultations from 2008 to 2015. Among their findings were the following:
- there were 81,461 informal and 6,829 formal consultations during that period;
- only two consultations resulted in jeopardy determinations; and
- the median duration of informal and formal consultations was 13 days and 62 days.
The authors also presented data sorted by geographic region, species, and lead agency. The authors went on to describe the implications of their data and analyses.
They state the results question the extent to which consultations are adequately protecting species, and counter many of the claims about the regulatory burdens and delays of complying with section 7.
Shortly after publication, Defenders of Wildlife sought to publicize the work. For example, in a blog post on the subject, Defenders of Wildlife President Jamie Clarke wrote, with respect to the article the adverse economic impacts attributed to the ESA have no basis in ‘fact’ and we now have compelling new peer-reviewed data to prove it. These efforts highlighted the organization’s interpretation of the data and findings in the article, rather than the data and findings themselves.
A number of Nossaman attorneys drafted a response to the article. We did not dispute the authors’ findings, but pointed out that their claims regarding the implications of those findings are unsupported. The authors and their organization point to the findings regarding the number of jeopardy determinations under section 7 and the median duration of formal consultation as proof that the consultation process does not have adverse economic consequences. This approach is problematic.
The most fundamental problem is that the authors are using two variables – number of jeopardy determinations and median duration of formal consultation – as proxies for regulatory burden. But these variables fail as proxies for the concept of regulatory burden. Take median duration of formal consultation as an example. This variable is problematic both because regulatory burden can be high even when a formal consultation is brief and regulatory burden can be low even when formal consultation is extended. The problem becomes exponentially worse when one considers that the U.S. Fish and Wildlife Service determines the point at which formal consultation is initiated. This allows the agency to truncate formal consultation, even in circumstances involving large-scale projects and/or potentially significant impacts for one or more listed species.
In our view, it is not possible to assess the regulatory burden associated with implementation of section 7 using summary statistics from the U.S. Fish and Wildlife Service. The agency does not even attempt to collect data regarding the costs that the regulated community (including federal action agencies) must bear in order to comply with the obligations imposed by section 7. Absent such summary statistics, there are a number of well-established methods – including the comparative method and case studies – available to assess regulatory burden. We submit future research should embrace such approaches rather than relying on inferences that are on their face unreasonable.
Paul Weiland is chair of Nossaman’s Environment & Land Use Group. He focuses his practice on litigation, permitting, and compliance counseling. Paul’s clients include public agencies, publicly regulated utilities, private ...
Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.
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