CHAPTER 2 IMPROVING MANAGEMENT OF THREATENED SPECIES: A PROPOSED GUIDANCE FOR 4(D) RULES

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 2
IMPROVING MANAGEMENT OF THREATENED SPECIES: A PROPOSED GUIDANCE FOR 4(D) RULES
Jake Li ¹
Director for Biodiversity
Environmental Policy Innovation Center
Washington, D.C.

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JAKE LI specializes in endangered species law, policy, and science. He focuses on developing innovative and pragmatic strategies to conserve imperiled species. This work includes nearly every aspect of the Endangered Species Act, especially consultations, permitting, recovery planning, and funding. He uses a variety of approaches in his work, ranging from traditional advocacy to data science to partnerships with industry. From 2010 - 2018, Jake held various positions at Defenders of Wildlife, including as Director of the Center for Conservation Innovation and Vice President of Endangered Species Conservation. Before joining Defenders, Jake practiced environmental law at Latham & Watkins. He holds a B.S. from Drexel University and a J.D. from Cornell University Law School. At Cornell, he also completed graduate courses in conservation biology and herpetology. Jake has coauthored over ten peer-review studies on the performance of the Endangered Species Act and other wildlife laws. He is also the coeditor, with Don Baur, of the upcoming third edition of the book, Endangered Species Act: Law, Policy, and Perspectives (2019).

Abstract

In recent years, section 4(d) rules that tailor Endangered Species Act (ESA) protections for threatened species have garnered considerable attention and controversy. One reason is that some conservationists believe the U.S. Fish and Wildlife Service (FWS) has inappropriately used certain 4(d) rules to exempt activities that threaten species. This skepticism only deepened in August 2019, when the agency withdrew its longstanding approach that automatically extended to threatened species the same protections offered to endangered species. Public reaction to the withdrawal was overwhelmingly negative, immediately bolstered by the threat of litigation and legislation to revoke the withdrawal. One reason for this distrust is the absence of any interpretative regulations or guidance on when and how FWS issues 4(d) rules. Without meaningful parameters on how FWS exercises its broad discretion under section 4(d), the public remains in the dark about how FWS decides whether to exempt an activity from ESA regulation, leading to fears about the process being captured by political considerations. To encourage FWS and the National Marine Fisheries Service to develop joint guidance on when and how they will issue 4(d) rules, this article outlines key elements of that guidance. Based on my review of every 4(d) rule the agencies have finalized, I recommend the guidance address the following issues: (1) how the agencies interpret the two separate grants of authority in section 4(d); (2) how the agencies decide whether to issue a 4(d) rule and the timing and process of drafting a rule; (3) a description of the categories of activities the agencies expect to address in 4(d) rules; and (4) a checklist of best practices and other considerations for drafting the rules. Through joint guidance, the agencies can better balance their goals of conserving listed species and providing regulatory flexibility and predictability to the public.

I. Background

Under the Endangered Species Act (ESA), the full protections of section 9(a) apply only to "endangered" species.² For "threatened" species, Congress gave the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) the authority to decide on a species-by-species basis which protections to apply.³ Through regulations issued under section 4(d) of the ESA, the Services "may" offer threatened species none, some, or all of the section 9(a) protections. Section 4(d) also requires the agencies to issue regulations they deem "necessary and advisable" to conserving a species. The statute is silent on how the agencies should interpret these two separate grants of authority, and the agencies have never issued regulations or guidance to fill the gap.

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The broad language of section 4(d) has allowed each of the Services to adopt very different approaches to 4(d) rules. For each species it lists, NMFS decides whether to issue a 4(d) rule and what section 9 restrictions to include in the rule. FWS, however, issued a general 4(d) rule in 1975 that extends the full protections of section 9 to all threatened animal species and, in 1977, did the same for all threatened plant species.⁴ Whenever FWS listed a species, it needed to decide whether to depart from those full protections through a "special" 4(d) rule for the species. Those departures almost always resulted in reduced protections for species, even though the U.S. Court of Appeals for the D.C. Circuit has stated that the "necessary and advisable" standard can include "protective measures beyond those contained in [section 9]."⁵

This difference in approach ended in August 2019, when FWS rescinded its general 4(d) rules for animals and plants.⁶ Moving forward, all newly listed threatened species will receive section 9 protections only if the agency issues a 4(d) rule for the species. To support this new approach, FWS explained:

Where we have developed species-specific 4(d) rules, we have seen many benefits, including removing redundant permitting requirements, facilitating implementation of beneficial conservation actions, and making better use of our limited personnel and fiscal resources by focusing prohibitions on the stressors contributing to the threatened status of the species. ⁷

The agency also explained that it intends to issue species-specific 4(d) rules at the time of listing, but it declined to adopt a timeframe for issuing rules or to commit to issuing a rule for every threatened species.⁸

Some conservation groups objected vehemently to the withdrawal of the general rules, characterizing it as illegal and a "gift to industry."⁹ Within hours of the announcement, Senator Udall (D-N.M.) announced his intent to block the 4(d) withdrawal and all other ESA regulatory revisions the Trump administration released that day.¹⁰ Nine days later, seven major conservation groups filed a 60-day notice challenging the revisions.¹¹

I think that many conservationists objected to the 4(d) withdrawal because of their general skepticism of any effort to reduce protections for threatened species, their view that several FWS 4(d) rules from the past decade undercut species recovery, and their discomfort over the absence of any meaningful parameters on how and when the agency issues 4(d) rules. Without these

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parameters, conservationists lack confidence that FWS will issue 4(d) rules that adequately protect species, especially those whose listing is controversial. In fact, recent legal challenges and other objections to 4(d) rules arose from concerns that the rules would undermine species recovery.¹² The most controversial of these rules include the polar bear rule that excludes greenhouse gas emitting activities and the lesser prairie-chicken rule that exempted any activities covered by a problematic state-managed conservation plan.¹³ Even though the two rules are outliers among the over 120 4(d) rules that FWS has issued, they remain salient in the minds of many conservationists.¹⁴ Had FWS adopted reasonable guidance on 4(d) rules by the time it withdrew the general 4(d) rules, opposition to the withdrawal might have been less severe and more informed.

The absence of guidance also undercuts the regulated community's ability to predict how the listing of a threatened species will affect...