Unpacking the Senate Permitting Reform Bill: ESA

Changes to the Endangered Species Act are limited in scope

This post continues my review of the provisions of the Senate Permitting Reform Bill, focusing on the Endangered Species Act provisions in Title III.  My introduction to the coverage of the bill is here.  My discussion of Title I, covering NEPA is here (for remedies) and here (everything else).  My discussion of the Clean Water Act provisions in Title II is here.

There are only a limited number of changes to the ESA under the bill.

First, section 1301 defines the best available science standard for the ESA – the ESA requires many decisions under the ESA to comply with the best available science mandate.  That mandate is important because it has been interpreted as prohibiting consideration of economic cost, and because it may provide an important constraint in agency decisionmaking under the act.

The provision defines best available science to mean “all relevant and objective scientific and commercial information available at the time of the agency action.”  My guess is that this provides additional ammunition for litigants challenging ESA implementation decisions, increasing the friction for those decisions.  Whether that adversely affects protection of endangered species depends in part on what kinds of implementation actions are occurring (listing versus delisting, Section 7 consultation that enables or stops harmful projects).  The definition also states that best available science “include[s] credible and reliable data, quantitative analyses, conceptual and numerical models, and model results,” with additional qualifications about what constitutes a good model.  Because these are only examples of what is included within best available science, rather than a limitation on what is best available science, I think they are most likely to apply when a litigant wants to force an agency to consider this type of information in an ESA decision.  Again, how that will cut for ESA implementation will depend a lot on what decision is at issue.

Section 1302 shortens timeframes for consultation that were already in the Act (from 90 to 60 days for consultations and 150 to 100 days for extensions).  It requires consultation to comply with the timeframes elsewhere in the bill for NEPA if applicable.  And it allows judicial review for delay on consultation if it extends more than 145 days beyond those deadlines.

Section 1303 creates an exemption from Section 7 consultation for activities in the right-of-way of federally funded highways.  To me this is most significant because it is the first time there has been a generic ESA exemption placed into the Act, so it is a potentially important precedent.

Finally Section 1304 adds a new Section 7A to the ESA that allows states to take over Section 7 consultation from the federal government for federal government actions.  There are parallels here with Section 401 certification under the Clean Water Act (where federal agencies must consult with states before issuing permits).  However, states must receive delegation from Interior Department before doing so – the requirements (capacity, waiver of sovereign immunity) are similar to what exists under other federal environmental laws that allow for delegation to states for implementation.  And I am somewhat skeptical that a whole lot of states will take up this offer, because it will require substantial resources and capacity, particularly with states with large numbers of endangered species.  I also think this may cut in multiple directions, and not just produce deregulation – could California take over delegated consultation authority and use that to stop federal interference with California water management in the Delta?

Moreover, the provision does not change the underlying standard that is applied in consultation, and the provision appears to require that citizen suits and APA judicial review should apply to state consulting agencies as if they were a federal agency, and that jurisdiction for suits is in federal court.  Those will constrain the amount of laxity that states can achieve in doing consultation.

Finally, Section 1305 provides that “[a]ny person may obtain judicial review . . . of any” biological opinion under Section 7 “in the D.C. Circuit within 150 days of the public issuance of the opinion.  I’ve seen reports that this requires all ESA Section 7 lawsuits to go to the D.C. Circuit.  I’m not so sure.  The language is simply permissive “may obtain,” not restrictive.  Compare the language in the Clean Air Act provisions that do require certain lawsuits to be filed in the D.C. Circuit, which reads “may be filed only”.

consultation, Endangered Species Act, ESA, permitting reform