Overhauling ESA private land provisions in light of the renewable energy boom on federal public lands.

• Author: Warner, Blair M.
• Position: Endangered Species Act of 1973

"I am the Lorax, and I'll yell and I'll shout for the fine things on earth that are on their way out!" (1)

INTRODUCTION

Many of us are familiar with the recent rise in renewable energy development in the United States. What we are not as familiar with, however, is the story of the Mojave desert tortoise and how it succeeded in shutting down for three months what remains the largest solar energy project in the world. (2) Taking a step back, the Endangered Species Act (ESA), (3) now forty years old, has plodded along at a slow and steady pace, with Congress slowly chipping away at the ESA until it was transformed from "prohibitive to permissive." (4) While the ESA has had the benefit of a significant head start, renewable energy development in the United States has burst onto the scene in a strong and swift fashion in the last ten years, (5) a newcomer that has developed at an accelerating pace. What may be described as a "green clash" has been cre ated as ESA and the renewable energy development "land rush" (6) policies diverge on limited federal public lands. This conflict is easily demonstrated by the example of the desert tortoise. The solar energy project slated for construction collided with the ESA when more desert tortoises were found at the site than the project's ESA permit allowed, resulting in the stoppage of the entire project as remedies for the tortoise were sorted out. (7) In a study this year, the U.S. Geological Survey has found further evidence of this clash, as demonstrated by the fact that seventeen percent of biodiversity "hot spots" (8) are found on land designated for renewable energy development. (9) This clash between federal green initiatives has magnified the infirmities of the ESA, and the renewable energy land rush has catalyzed the need for imminent change in how the ESA regulates (currently, how the ESA fails to effectively regulate) the habitat of threatened and endangered species on private lands in the United States.

First, Part I of this Note provides a background of the relevant ESA and renewable energy laws and policies in play today with regard to the renewable energy land rush in the United States, chronicling the recent explosion in renewable energy development on federal public lands in particular. Second, in Part II this Note details the lack of effectiveness of the ESA with regard to federal public lands and the conflict created for the Bureau of Land Management (BLM) with the diverging "green" mandates from the ESA and renewable energy policy. This Part then addresses the failure of the ESA with regard to private lands regulation and posits that the expansion of renewable energy development on public lands is rapidly accelerating the need to change how the ESA regulates and incentivizes private landowners. Finally, in Part III this Note concludes by addressing two methods--subsidies and market-based approaches--by which the ESA can be modified to successfully provide a positive habitat protection structure. By focusing on the ESA's private lands infirmities, the United States can provide suitable private land habitat for endangered species amidst an accelerating need to devote federal public lands to renewable energy projects and away from endangered species' critical habitats.

1. THE ESA AND RENEWABLE ENERGY POLICY IN THE UNITED STATES

   This Part first provides a background regarding the evolution of federal laws leading up to the enactment of the Endangered Species Act of 1973 and the purposes given for its enactment. This is followed by an overview of some of the ESA's key provisions. Next, a summary of the development of renewable energy policy and laws in the United States is given along with an account of the rapid growth of renewable energy development and a few of the reasons for this swift expansion.

   1. The Endangered Species Act

      1. Development and Evolution

         Congress began its species protection legislation in 1966 with the Endangered Species Preservation Act. (10) The Endangered Species Preservation Act was limited in only requiring federal agencies to follow it "insofar as is practicable and consistent with [their] primary purposes." (11) The law was amended a few years later to add a few enforcement provisions regarding the sale of endangered species in the United States. (12) President Richard Nixon indicated to Congress that he was not satisfied with these existing species preservation efforts, (13) and the following year Congress passed the Endangered Species Act (14) with broad bipartisan support. (15) Upon its passage, President Nixon memorably stated:

         Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed. It is a many faceted treasure, of value to scholars, scientists, and nature lovers alike, and it forms a vital part of the heritage we all share as Americans. (16) The ESA was enacted with the purpose of "provid[ing] 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 species and threatened species." (17) The ESA's structure is "short and compact" compared to other environmental laws. (18) The U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) collectively referred to as the "Service") are responsible for administering the majority of the ESA, (19) with the Secretary of the Interior and the Secretary of Commerce (collectively referred to as the "Secretary") being the ultimate decisionmakers regarding the listing of a species. (20)

      2. Specific Provisions

         Beyond the development and policy behind the ESA, there are four specific sections within the Act that provide its main framework. A brief look at each of these sections provides a glimpse into how the ESA designates threatened and endangered species and enforces protection of those species.

         1. Section 4: Species Listing and Critical Habitat Designation

            Section 4 (21) is widely regarded as the "keystone" of the ESA. (22) The section acts as a "gateway to the ESA," (23) providing protection only once a species is classified as threatened or endangered. (24) The Secretary has broad discretion in listing a species and may not look at economic factors--only scientific factors may be considered. (25) Within section 4 the Secretary is also required to designate "critical habitat" (26) and create "recovery plans" (27) for species. Notably, the critical habitat designation process is the only instance in which the Secretary is charged with specifically considering economic factors in the ESA. (28)

         2. Section 7: Species Protection

            Section 7(a)(2) requires that federal agencies consult (29) with the FWS or NMFS in order to ensure that a federal action does not "jeopardize" (30) a species. Section 7(a)(1) also indicates that the Secretary must review her department's programs in ensuring that they further the purposes of the ESA. This is distinct from the section 7(a)(2) consultation and jeopardy requirements. (31) It would appear that section 7(a)(1) thus creates an independent obligation on each federal agency, but because of its poor definition no rules have been enacted addressing this provision. (32)

         3. Section 9: Prohibition on Takes

            Section 933 is a critical provision of the ESA--it operates to enforce prohibitions on actions that harm threatened or endangered species. (34) The "take" prohibition is contained in section (9) as well, which prohibits any action "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." (35) This definition authorizes the ESA to regulate and limit the actions of private landowners, (36) and it has been broadly defined by the courts. (37) Both the federal government and private citizens may bring enforcement actions against someone who has caused an illegal "take," (38) whether accidental (39) or purposeful, as well as obtain permanent injunctions. (40) Penalties for those who knowingly violate section 9 include civil fines of up to $ (25,000) per violation, (41) criminal penalties of up to $50,000, one year of imprisonment, or both. (42)

         4. Section 10: Incidental Take Permits

            In 1982, Congress amended section 9 to remove some of the harshness from its application to private landowners, allowing landowners to take a listed species if they obtain an incidental take permit. (43) In order to do this, the landowner must submit and receive approval of a habitat conservation plan (HCP)--this involves meeting specified criteria in the provision. (44) A key issue with section 10 as applied to individual landowners is its lengthiness and complexity--it is possible that an application for an incidental take permit will trigger both the National Environmental Policy Act (NEPA) (45) and a section 7 FWS consultation. (46)

   2. Renewable Energy Policy and Laws

      1. The Development and Evolution of Energy Policy in the United States

         The development of renewable energy law and policy has taken a less linear course than endangered species protection. There are five major types of renewable energy: solar, wind, hydro, biomass, and geothermal. (47) Importantly, the growth of renewable energy has largely been state-led, (48) in contrast to the federal push and oversight behind the ESA. This has mainly occurred in the form of Renewable Portfolio Standards (RPS) or Renewable Energy Standards (RES) implemented state by state. (49) As of May 20, 2013, twenty-nine states had RPSs in place. (50) K.K. DuVivier has defined an RPS as follows:

         A resource portfolio requirement requires certain electricity sellers and/or buyers to maintain a predetermined percentage of designated clean resources in their wholesale supply mix.... ... The key to making portfolio requirements work is to establish trading schemes for "portfolio obligations." Portfolio standards are flexible.... The standard allows market...