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

• Date: 01 November 2016
• Author: Melinda Taylor, Romany Webb, and Vanessa Puig-Williams

46 ELR 10924 ENVIRONMENTAL LAW REPORTER 11-2016

C O M M E N T

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 http://www.biologicaldiversity.org/

campaigns/esa_attacks/pdfs/Politics_of_Extinction.pdf.

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.