CHAPTER 12 HOW MUCH IS ENOUGH? CONSIDERATION OF THE PECE CRITERIA AND VOLUNTARY EFFORTS IN LISTING DECISIONS

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 12
HOW MUCH IS ENOUGH? CONSIDERATION OF THE PECE CRITERIA AND VOLUNTARY EFFORTS IN LISTING DECISIONS
Douglas P. Wheeler
Partner
Hogan Loveils LLP
Washington, DC
Ana Gutiérrez
Associate
Hogan Lovells US LLP
Denver, Colorado
Dale Ratliff
Sturm College of Law, University of Denver
Denver, Colorado

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DOUGLAS P. WHEELER is a partner at Hogan Lovells US LLP, where he practices environmental law in its Washington office. Prior to joining the Firm in 1999, he served from 1991-1999 in the cabinet of Governor Pete Wilson as California's Secretary for Natural Resources, with responsibility for all of the state's natural and cultural resource programs. Doug, a graduate of Hamilton College and the Duke University School of Law, has worked exclusively with natural resource and environmental issues since joining the Department of the Interior in 1969, where he served as Assistant Legislative Counsel and Deputy Assistant Secretary for Fish and Wildlife and Parks. Since enactment in 1973, the Endangered Species Act has been a focus of Doug's professional interests. Both at the Department of the Interior and, later, as Secretary for Natural Resources in California, Doug sought to implement the Act with respect for its objectives and sensitivity to its limitations. In private practice, he advises clients on use of strategies that afford opportunity for integration of habitat conservation and infrastructure development. He is co-author of "Habitat Conservation Plans and the Endangered Species Act", a chapter in "Endangered Species Act: Law, Policy and Perspectives" (American Bar Association, 2010). During a 46-year career, he has also served as a senior executive of conservation and environmental NGOs, including the National Trust for Historic Preservation, the American Farmland Trust, the Sierra Club, the Conservation Foundation, and the World Wildlife Fund. He is a member of the boards of the Conservation Lands Foundation, the Nicholas Institute for Environmental Policy Solutions at Duke University, and the Chesapeake Conservancy, and emeritus member of the boards of the Lincoln Institute for Land Policy, the American Farmland Trust, and the Duke University School of Law.

TABLE OF CONTENTS

I. Introduction

II. Pre-PECE Litigation

A. Courts Hold the Consideration of Future Effects Is Impermissible

B. The Speculative Standard Emerges

III. Development of the PECE: Requiring That Pre-Listing Efforts Are Certain and Effective

A. The Services Must Find That Conservation Efforts Are Certain to be Implemented and Likely to be Effective

B. The PECE Has Bite

IV. Post-PECE Litigation: A Focus on PBPA et al. v. Department of the Interior

A. History of LPC Listing Decision

1. Summary of LPC Conservation Efforts

2. The RangeWide Management Plan and the Service's Decision to List the LPC as Threatened

B. The Service's Decision to List the LPC as Threatened Provides Insight Into the Future of Voluntary Conservation

1. Fledgling Efforts: Use of PECE to Analyze Only Those Efforts Not Fully Implemented or Fully Demonstrating Their Effectiveness

2. The Purpose of PECE: To Incentivize Participation in Voluntary Conservation Efforts

3. The PECE Analysis: The Service's Analysis Must Be Rigorous and Forward-Looking

C. The PECE Is More Than An Empty Promise

V. But How Much is Enough?: The Greater Sage-Grouse As a Case Study

A. General Implications of the "New" PECE

B. The "New" PECE and The Greater Sage-Grouse

VI. Conclusion

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I. INTRODUCTION

The U.S. Fish and Wildlife Service ("FWS" or "the Service") and the National Marine Fisheries Service ("NMFS") (collectively, "the Services") first began utilizing voluntary conservation agreements in 1994 for the stated purpose of creating "opportunities for Federal and non-Federal entities to stabilize and recover [candidate] species and their ecosystems before listing [under the Endangered Species Act ("ESA" or "the Act")] becomes a high priority."¹ The Services developed Candidate Conservation Agreements with Assurances ("CCAAs") a few years later to further incentivize landowners to engage in pre-listing conservation efforts by providing assurances that, if the Services eventually listed the species, "the property owners or agencies would not be required to do more than those actions agreed to in the Candidate Conservation Agreement."² The Services developed pre-listing CCAAs as part of the U.S. Department of the Interior's "No Surprises" reform, which also included the creation of post-listing Safe Harbor Agreements.³ "The essential idea was to bring the largely moribund Habitat Conservation Plan program to life, that is, to bring about negotiated solutions to sensitive ESA problems."⁴ These Clinton-era reforms anticipated that adoption of such pre-listing plans might "obviate the need to engage the ESA in order to recover [candidate] species."⁵ This paper examines the history and future of the Services' approach to incorporating pre-listing conservation efforts (such as CCAAs) into listing decisions.

In 2003, the Services adopted their Policy for Evaluation of Conservation Efforts When Making Listing Decisions ("PECE"). In the PECE, the Services articulated their legal authority

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to consider pre-listing conservation measures when making listing decisions, and established a set of formal criteria to determine how they should evaluate such conservation efforts when deciding whether to list a species. This paper first examines the early efforts of the Services to rely on conservation efforts when making listing decisions, and the judicial decisions that led to the development of the PECE.

In developing the PECE, the Services also sought to actively promote the continued development of pre-listing conservation measures for candidate species. By establishing the set of formal criteria the Services would use in evaluating such efforts, the Services not only asserted their authority to rely on future and voluntary conservation efforts when making listing decisions, they also promised that such efforts would be subject to a thorough review prior to any listing decision. By way of example, this paper next looks at the FWS's decision to list the lesser prairie-chicken ("LPC") as threatened, and the recent court decision in Permian Basin Petroleum Ass'n v. Department of the Interior, No. MO-14-CV-50, 2015 WL 5192526, (W.D. Tex. Sept. 1, 2015) (PBPA), for insight into the extent of that promise and the Services' obligations under the PECE. Finally, this paper examines the FWS's recent decision not to list the greater sage-grouse, examining the forward-looking implications of the PECE (as a result of both the PBPA decision and the greater sage-grouse decision) on future listing decisions.

II. PRE-PECE LITIGATION

Despite the Services' goal of promoting pre-listing conservation efforts in order to promote species conservation while minimizing economic disruption, the Services' authority to rely on such efforts when making listing decisions was initially questioned by environmental groups and the courts. This section examines the series of court cases that led to the development of the PECE, and their influence on current policy as well as listing decisions.

A. Courts Hold That the Consideration of Future Effects Is Impermissible

In 1996, in a pair of related cases, the United States Court for the District of Columbia first addressed the issue of whether the Services may rely on anticipated conservation efforts when making listing decisions. Environmental plaintiffs had petitioned the FWS to list the Queen Charlotte goshawk and the Alexander Archipelago wolf, both residents of the Tongass National Forest.⁶ In both cases, the FWS acknowledged that continued old growth forest harvest under the existing Tongass Land Management Plan would result in "significant adverse effects," and "seriously imperil[]" the long-term viability of the species.⁷ However, in both cases, the agency found that listing was not warranted.⁸

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The FWS based its decisions, in large part, on proposed conservation measures to be included in a revised Tongass Land Management Plan, and other promises by the U.S. Forest Service ("Forest Service") to "address land management options" and ensure necessary habitat conservation.⁹ The plaintiffs objected to the decision, and argued that by relying on the proposed conservation measures, the FWS had relied on "illegal considerations."¹⁰ The court agreed with plaintiffs, rejecting the agency's analysis as both arbitrary and capricious and beyond the scope of the ESA.¹¹ In dual opinions that mirrored each other verbatim, the D.C. District Court held that "the Secretary did not make his determination 'solely on the basis of the best scientific and commercial data,'" and that under the plain language of the statute the agency may consider only "existing regulatory mechanisms."¹² Importantly, however, the court did not expressly foreclose the ability of the agency to consider the effect of conservation measures not yet implemented, as long as those measures were part of an existing regulatory mechanism.¹³

Just one month after the second D.C. District Court's decision, the United States District Court for the District of Oregon came to a similar conclusion when asked to address the validity of a FWS decision that listing of the bull trout was "Warranted but precluded."¹⁴ Relying on "ongoing management changes (e.g. Forest Plan)" expected to benefit certain populations of bull trout, the FWS concluded that while listing was warranted, the magnitude of the threats facing the bull trout were moderate.¹⁵ Accordingly, the FWS assigned the species a listing priority of nine¹⁶ and determined that listing was precluded by higher priority species.¹⁷ As in the District

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of Columbia cases, the court ruled that the agency's decision was arbitrary...