Protecting Species or Hindering Energy Development? How the Endangered Species Act Impacts Energy Projects on Western Public Lands

Date01 November 2016
AuthorMelinda Taylor, Romany Webb, and Vanessa Puig-Williams
Protecting Species or Hindering
Energy Development? How
the Endangered Species Act
Impacts Energy Projects on
Western Public Lands
by Melinda Taylor, Romany Webb, and Vanessa Puig-Williams
Melinda Taylor is a Senior Lecturer and Executive Director of the Kay Bailey Hutchison Center for Energy, Law, and Business
at the University of Texas at Austin (KBH Energy Center). Romany Webb is a Climate Law Fellow at the Sabin Center for
Climate Change Law at Columbia Law School. Vanessa Puig-Williams is an Aliated Fellow in the KBH Energy Center.
Since it was enacted in 1973, the Endangered Spe-
cies Act (ESA) has been one of the most celebrated
environmental laws, but also one of the most reviled.
ough passed by the U.S. Congress with strong biparti-
san support (it passed the U.S. House of Representatives by
a 379-vote margin and the U.S. Senate unanimously1), the
ESA has faced growing opposition by industry a nd devel-
opers frustrated by its ability to slow projects down, and
by environmentalist s discouraged by its failure to re verse
the decline of many of the nation’s most imperiled plants
and animals.
Much of the criticism ha s been directed toward §7 of
the E SA, which requires federal agencies to consult with
the U.S. Fish and Wildlife Service (FWS) or the National
Marine Fisheries Service (NMFS) to ensure that actions
they undertake or authorize do not jeopardize threat-
ened or endangered species.2 Industry groups arg ue that
the consultation process f requently delays and sometimes
halts much needed energy, transportation, water supply,
and other projects and often dramatically increases project
costs. Environmentalists d isagree with this view, contend-
ing that the process actually rarely stops anything and that
the FWS lacks the backbone to impose meaningful conser-
vation requirements that would be costly or inconvenient
for the project developer.
In recent years, industry complaints about the ESA have
found a sympathetic ear in Congress and some members
have sought to amend the Act to weaken its protections.
1. 119 C. R. 25694 and 30167-68 (1973).
2. 16 U.S.C. §1536(a)(2). Federal agencies must consult with FWS on any
proposed action that may aect listed terrestrial and freshwater species and
with NMFS on any proposed action that may aect listed marine species.
e consultations discussed in this Comment were carried out by FWS.
From 2011 to 2015, lawmakers introduced a whopping 164
bills and riders aimed at reducing the scope and applicabil-
ity of the ESA, including by preventing listing of or man-
dating the delisting of species, and otherwise limiting the
implementation of the Act.3
In 2015, we decided to delve deeply into ESA §7 to
analyze how it actually works in practice and to a ssess the
validity of various parties’ cla ims about the consultation
process. We focused on the impact of §7 consultation on
energy development on public land. is Comment is a n
overview of our study and key ndings. In a nutshell, we
learned that only a smal l fraction of energy projects devel-
oped on public land are reviewed at all under §7. When it
applies, the consultation process appears to go quickly and
smoothly for t he vast majority of oil and gas projects, for
a variety of reasons. On the other hand, consultation on
solar energy a nd wind energy projects tends to be lengthy
and complicated.
FWS has taken steps in recent years to improve the con-
sultation process for energy projects, including by issuing
programmatic biological opinions (BiOps) to cover mul-
tiple similar actions. By and large, the industry represen-
tatives whom we interviewed spoke favorably about their
experiences with the programmatic BiOps, but expressed
lingering concerns about various aspects of the consulta-
tion process.
Our study focuses on energy projects involving oil, ga s,
solar, and wind energy development (together “energy proj-
3. Jamie Pang & Noah Greenwald, Center for Biological Diversity, Politics
of Extinction: e Unprecedented Attack on Endangered Species and the En-
dangered Species Act (2015), available at
Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT