CHAPTER 5 EMERGING ISSUES ASSOCIATED WITH SECTION 7 CONSULTATION

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 5
EMERGING ISSUES ASSOCIATED WITH SECTION 7 CONSULTATION
Jill E.C. Yung
Associate
Paul Hastings LLP
San Francisco, CA

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JILL E.C. YUNG is an associate in the Environment and Energy Practice of Paul Hastings LLP and is based in the firm's San Francisco office. Ms. Yung represents utility-scale solar developers, brownfields developers, hazardous waste handlers, recycling facilities, and manufacturers in a variety of industries on a wide range of complex permitting, compliance, and litigation matters involving environmental, renewable energy, and natural resource issues. In particular, she provides counsel on regulatory compliance issues under federal and state statutes including, but not limited to, CERCLA (liability for releases of contamination), RCRA (hazardous waste management and liability), FIFRA (pesticides), CWA (jurisdictional determinations), ESA, NHPA, NEPA, and the California Environmental Quality Act (CEQA). Ms. Yung represents developers in environmental review and permitting processes for private, public, and tribal land energy projects involving the U.S. Bureau of Land Management, the U.S. Fish & Wildlife Service, the U.S. Environmental Protection Agency, the Army Corps of Engineers, the National Parks Service, the Bureau of Indian Affairs, the California Energy Commission, the California Department of Fish & Wildlife, local agencies, environmental stakeholders, and/or Native American tribes. She has also successfully defended multiple litigation matters involving claims against permitted utility-scale solar projects under ESA, NHPA, NEPA, NAGPRA, and CEQA, and challenged unlawful taxes on energy generation in court.

Section 7 Consultations on Solar Projects: Is USFWS Seeing the ESA in a New Light?

At the time of its adoption, "the Endangered Species Act of 1973 [the 'ESA'¹ ] represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation"² and the Supreme Court accordingly interpreted it as such. In its first opportunity to consider the act, the Court determined that Congress enacted the ESA "to halt and reverse the trend toward species extinction, whatever the cost."³ The cost was incredibly high in that inaugural case (Tennessee Valley Authority ("TVA") v. Hill), as the Court enjoined further construction of a nearly complete dam that predated the ESA and the United States Fish & Wildlife Service's ("USFWS" or "Service") decision to list a three-inch long fish (the snail darter) as endangered. Regardless of the fact that tens of millions of public dollars were at stake, the Court held that the ESA required TVA to first ensure the project did not jeopardize the continued existence of the snail darter or its critical habitat.

TVA v. Hill set a high bar for ESA jurisprudence for decades to come. Among other things, it gave birth to a weighted test for evaluating preliminary injunctions that allowed courts to overtly defer to species interests.⁴ Notwithstanding the ESA's powerful breakout performance, however, the judiciary's commitment to enforce it "whatever the cost" waned over time as courts explored more nuanced allegations, examined the language and history of the act more closely, and afforded the Service a great deal of deference.⁵ Agency enforcement followed suit, as permitting actions began to take into account political and economic considerations expressly and implicitly incorporated into the fabric of the ESA.⁶ Before long, the once unyielding pit bull of environmental laws⁷ was effectively leashed by these concerns, reduced from a staunch prohibition on killing, harming, or even harassing endangered species (acts collectively known as "taking" species) to "a precautionary, but rebuttable, presumption" that take should be prohibited.⁸

Recently, however, the trend of the ESA's diminishing clout has been arrested in surprising ways and in a rather unlikely context. Renewable energy development projects, in

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particular utility-scale solar generation facilities, have become the testing grounds for permitting experiments aimed at (1) streamlining the permitting process in the face of limited agency resources and (2) responding to pressure from environmental stakeholders to explore the reach of the ESA in light of the unprecedented size of utility-scale solar projects and uncertainty regarding their impacts. In particular, these matters have come to a head in intra-governmental consultations with USFWS under Section 7 of the ESA, which has been involved in many solar project permitting decisions as a consequence of government grants available under the American Recovery and Reinvestment Act of 2009⁹ and incentives under the Energy Policy Act of 2005¹⁰ to site projects on public lands administered by the Bureau of Land Management ("BLM"). As explained in more detail below, USFWS has responded to the increased demand for its input by using programmatic consultations, batched biological opinions, and "not likely to adversely affect" determinations to stem the tide of permitting requests. In addition, the Service has used re-initiation of consultation and adaptive management to address instances where rapidly evolving technology and development patterns have outpaced the best scientific data on which Section 7 consultations rely. These examples of how Section 7 consultations have played out in the context of permitting solar projects demonstrate that the USFWS may still have a few useful tricks up its sleeve to play when administering the ESA.

I. Basic Legal Framework for Jeopardy Opinions under the ESA.

Section 9 of the ESA makes it unlawful for any person to, inter alia, "take" any endangered species of fish or wildlife.¹¹ The term "take" means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."¹² "Harm" is, by regulation, more specifically defined to cover acts "which actually kill[] or injure[] wildlife," including "significant habitat modification, or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering."¹³ If absolute, these prohibitions could severely restrict development and other activities nationwide. To avoid this result, Congress incorporated escape clauses into the ESA, including Section 7, which establishes a process whereby federal agencies ("action agencies") contemplating major federal action that might take a threatened or endangered species incidental to an otherwise lawful activity can secure an incidental take statement ("ITS") to exempt the take from Section 9's penalty provisions.¹⁴

Pursuant to Section 7, federal agencies must "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of

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[designated critical] habitat...."¹⁵ To assist federal agencies in complying with this obligation, the ESA further requires that agencies consult with either USFWS or the National Oceanic and Atmospheric Administration ("NOAA") Fisheries (together with USFWS, the "Services") "whenever a federal action may affect an ESA-listed species."¹⁶ Before arriving at this point, however, the federal agency will determine for itself whether its actions "may affect an ESA-listed species." For "major construction activities," like the development of a utility-scale solar facility, this will involve the preparation of a Biological Assessment ("BA"). The primary role of the BA "is to document an agency's conclusions and the rationale to support those conclusions regarding the effects of their proposed actions on protected resources."¹⁷ Following a description of the project, explanation of its environmental context, and an analysis of its impacts, the BA should make one of the following findings for each protected species potentially impacted by the project:

• "No effect," meaning "there will be no impacts, positive or negative, to listed or proposed resources" (i.e., "no listed resources will be exposed to action and its environmental consequences" ¹⁸ ).

• "May affect, but [is] not likely to adversely affect," meaning that "all effects are beneficial, insignificant, or discountable. Beneficial effects have contemporaneous positive effects without any adverse effects to the species or habitat. Insignificant effects relate to the size of the impact and include those effects that are undetectable, not measurable, or cannot be evaluated. Discountable effects are those extremely unlikely to occur." ¹⁹

• "May affect, and is likely to adversely affect," meaning "that listed resources are likely to be exposed to the action or its environmental consequences and will respond in a negative manner to the exposure" ²⁰

If the action agency concludes that its proposed activity will not impact threatened and endangered ("T&E") species, then its inquiry is at an end and no consultation is necessary. A determination in a BA that an action "may affect, but [is] not likely to adversely affect" species should be submitted to the Service for informal consultation and concurrence in the conclusions reached in the BA. A determination in a BA that an action "may affect, and is likely to adversely affect" must be submitted to the Service for formal consultation.²¹

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If the action agency requests formal consultation in writing, the consulting agency will next "evaluate[] the effects of the proposed action on the survival of species and any potential destruction or adverse modification of critical habitat in a biological opinion ['BiOp'], ... based on 'the best scientific and commercial data available.'"²² More specifically, the consulting agency will evaluate "`the current status of the listed species or critical...