LISTING AND PROTECTING THREATENED SPECIES UNDER THE ENDANGERED SPECIES ACT: IS THE U.S. FISH AND WILDLIFE SERVICE'S DESIRE FOR FLEXIBILITY UNDERMINING THE ESA'S CONSERVATION MANDATE?

• Jurisdiction: United States

Endangered Species Act
(Nov 2015)
CHAPTER 7B
LISTING AND PROTECTING THREATENED SPECIES UNDER THE ENDANGERED SPECIES ACT: IS THE U.S. FISH AND WILDLIFE SERVICE'S DESIRE FOR FLEXIBILITY UNDERMINING THE ESA'S CONSERVATION MANDATE?
Jason C. Rylander ¹
Senior Staff Attorney
Defenders of Wildlife
Washington, DC

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JASON RYLANDER is a senior staff attorney for Defenders of Wildlife, where for the past 10 years he has litigated environmental cases in federal court and represented Defenders in coalitions, advisory committees, and on Capitol Hill. He began his legal career as an associate in the Political Law Group of Perkins Coie, LLP, representing political candidates and party committees. He then served as Litigation & Policy Counsel for Community Rights Counsel (now the Constitutional Accountability Center), where he filed amicus briefs in appellate and Supreme Court cases at the intersection of environmental and constitutional law and advocated on judicial nominations and legal ethics issues. Prior to law school, he was managing editor of the Land Letter, a national trade publication covering federal natural resource policy. Jason earned a B.A. in Government, cum laude, from Cornell University and a J.D. from the William & Mary School of Law, where he served as associate editor of the William & Mary Law Review and symposium editor of the Environmental Law & Policy Review. Jason has published numerous articles and op-eds on environmental law and policy issues.

This article will explore the U.S. Fish and Wildlife Service's use of Section 4(d) rules for species listed as threatened under the Endangered Species Act in recent high-profile cases. It will examine the ESA's standards for the development of Section 4(d) rules and discuss whether recent examples actually provide for the conservation of the threatened species or represent a political compromise at the expense of the species' protection. It will comment on the increased use of state and private conservation plans to justify listing a species as threatened instead of endangered (or to avoid listing species in the first place) and whether such decisions are grounded in the best available science, as the law requires. It concludes that listing decisions are likely to become more controversial as the Service seeks to provide additional regulatory flexibility while still fulfilling its statutory mandate to protect and recover the nation's imperiled species. Ultimately, the courts will be asked to resolve critical questions about the Service's reliance on voluntary conservation plans and the extent of the Service's responsibility to protect threatened species.

I. Introduction and Scope

Under the Endangered Species Act ("ESA"),² an imperiled species can be listed as either "endangered" or "threatened." As a scientific matter, the difference between an "endangered" species and a "threatened" species is one of degree. As a statutory matter, an "endangered" species is "in danger of extinction throughout all or a significant portion of its range."³ A species is "threatened" if it "is likely to become an endangered species within the foreseeable future."⁴ As a regulatory matter, the distinction can be very significant.

Endangered fish and wildlife species enjoy the full protections of the ESA, including Section 9's prohibitions against killing or harming a listed species.⁵ By contrast, threatened

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species are only protected against "take" if the relevant administering agency--the U.S. Fish and Wildlife Service ("the Service") or the National Marine Fisheries Service ("NMFS")-- says so in a special rule pursuant to Section 4(d) of the Act. For threatened species, Section 4(d) of the ESA provides that the Secretary "shall" issue special rules extending Section 9's take prohibitions to threatened species as "necessary and advisable to provide for the conservation" of the species.⁶

For most of the Act's history, this statutory distinction between endangered and threatened species has been of little practical import. That is because shortly after the ESA was enacted, the Fish and Wildlife Service issued a blanket regulation automatically extending all of Section 9's protections for endangered species to the threatened species under its jurisdiction, unless the Service issues a separate species-specific rule prescribing a different level of take.⁷ In other words, a Service-listed threatened species generally enjoys the same protections as endangered species, except when the Service specifies a different regulatory approach.⁸

As of November 2014, the ESA protected 173 threatened wildlife species and 154 threatened plant species.⁹ Of these 328 species, the Service developed species-specific Section 4(d) rules for 49 wildlife species, while the National Marine Fisheries Service issued 41 such rules.¹⁰ An additional 84 threatened wildlife species under the Service's jurisdiction receive the full protection of the ESA pursuant to 50 C.F.R. § 17.31(a).¹¹ All threatened plant species are covered by a basic 4(d) rule that allows state agencies to take plants from federal lands for approved conservation programs.

Section 4(d) rules allow the regulating agency the "opportunity to tailor threatened species protection to the conservation, political and landscape context that is specific to each species or ecosystem."¹² More flexible regulatory approaches could, as Habitat Conservation Plans (HCPs) already do for some listed species,¹³ provide for an optimum mix of species conservation and development. On the other hand, such flexibility can come at a price. The agencies may exempt activities from regulation that will deleteriously affect the listed species

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and undermine its recovery. As one report has found, "in almost all cases, 4(d) rules have been used to decrease rather than increase species protection, compared to endangered species."¹⁴

Recently, the Service has faced considerable political pressure not to list certain species at all, or to list them as threatened with a Section 4(d) rule that contains significant exemptions for activities known to harm the species. For the polar bear, the lesser prairie-chicken, the northern long-eared bat, and the Georgetown salamander, among others, the Service responded to petitions seeking ESA protections by listing the species as threatened, rather than endangered, and simultaneously issuing Section 4(d) rules that reduced the protections that would otherwise be afforded to the threatened species under the blanket rule, 50 C.F.R. § 17.31(a). In the case of the polar bear, the Service explicitly found that greenhouse gas emissions were the leading threat to the polar bear's Arctic sea ice habitat, but the agency then issued a Section 4(d) rule that exempted all greenhouse gas emissions and other activities outside the current range of the bear from take prohibitions.¹⁵ Similarly, with the northern long-eared bat, the Service exempted many industries and activities from regulation even though a disease called white-nose syndrome is spreading rapidly through the majority of the species' range, decimating its population.¹⁶ For the lesser prairie-chicken and the Georgetown salamander, the Service exempted from take activities that are deemed consistent with regional conservation plans administered by the states and localities.¹⁷

While the regulated community has supported such approaches, many environmental groups and scientists are concerned that these rules do not comply with the ESA and will do little to protect declining species. Under the Act, a Section 4(d) rule must provide for the conservation--i.e. survival and recovery--of the species. Courts are now being asked to determine if a rule that exempts activities known to contribute to the species' decline meets that standard.

II. The Endangered Species Act's Regulatory Framework

a. The Listing Process

Congress enacted the ESA in 1973 out of a growing concern that "various species offish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation."¹⁸ Its purpose is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered and threatened species."¹⁹ As the Supreme Court has recognized, the "plain intent of Congress in enacting this statute was to halt and reverse the trend toward extinction

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whatever the cost."²⁰

The ESA empowers the Secretary of the Interior, through the U.S. Fish and Wildlife Service, to determine whether a species is "endangered" or "threatened." Only species formally listed as endangered or threatened receive the protections of the Act.²¹ Section 4 of the ESA requires the Secretary of the Interior (for terrestrial and aquatic species) or Commerce (for marine species) to consider five factors in making and listing determinations or modifications: (A) the present or threatened destruction, modification, or curtailment of its habitat or range: (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanism; or (E) other natural or manmade factors affecting its continued existence.²² If any one or more of these factors imperils a species, the Secretary must add it to the list.²³

The Secretary must base all listing determinations "solely on the best available scientific and commercial data available."²⁴ The Secretary must "conduct[] a review of the status of the species" and make a decision

after taking into account those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species, whether by predator control, protection of habitat and food supply, or other conservation

...