Natural resource restoration: the interface between the Endangered Species Act and CERCLA's natural resource damage provisions.

• Author: Shutler, Sharon K.
• Position: Endangered Species Act at Twenty-One: Issues of Reauthorization

1. INTRODUCTION

   Protection of endangered species and the clean up of hazardous waste sites represent two of the past decade's most significant environmental issues. Both are hotly debated largely because associated costs can be high, whether from the direct cost of cleaning up sites or the indirect costs of lost jobs and lifestyles. The primary example of these high costs is the infamous northern spotted owl controversy. Debate on both issues and associated laws -- the Endangered Species Act of 1973 (ESA)(1) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)(2) -- is likely to continue. Although much has been written about the ESA and CERCLA, there has been little discussion regarding integration of the two statutes. Increasingly, however, hazardous wastes from CERCLA sites are injuring either species protected under the ESA or habitat critical to those protected species. Accordingly, the time is ripe to examine the interface between the ESA and CERCLA.

   This article examines the effect that injuries to ESA-listed species may have on the selection of the CERCLA natural resource remedy. Part II examines the principal provisions of the ESA, including the very limited role of economics. Part III provides a cursory examination of the relevant CERCLA natural resource damage authorities, the statutory preference for restoration, and the argument that preference for restoration is nullified where the costs of that restoration are "grossly disproportionate" to the value of the natural resource injured, Finally, Part IV examines the interface of the requirements of the two statutes and argues that the protection mandates of the ESA effectively skew selection of a CERCLA natural resources remedy in favor of a comprehensive restoration strategy ("on-site, in-kind") where the natural resources injured include, or are, species protected under the ESA. Part V concludes.

2. PRINCIPAL PROVISIONS OF THE ESA AND THE ROLE OF ECONOMICS

   1. Background and Policy

      The ESA is a landmark in the evolution of environmental protection and wildlife law. Prior to this century, most natural resource law in the U.S. derived from state statutes, the public trust doctrine, and common law theories such as nuisance, trespass, or tort. Partly in response to the demise of the passenger pigeon, Congress passed the Lacey Act(3) in 1900 and a variety of federal conservation laws followed.(4) During the 1960s and 70s, Congress enacted additional environmental legislation, including the first statutes designed to preserve and conserve endangered species.(5) In 1973, Congress enacted the current Endangered Species Act, revising and strengthening the earlier statutes.

      The ESA embodies the paramount concern expressed by Congress that various species of fish, wildlife, and plants increasingly were becoming depleted and extinct as a consequence of economic growth and development.(6) Accordingly, the entire statutory scheme creates a presumption in favor of preserving species, often without regard to cost. The notion that the existence of a species has intrinsic value, which is difficult to measure in traditional economic terms, is fundamental to this statutory presumption. Fundamental also is the recognition that extinction is forever, and therefore "extinction is quite literally a fate worse than death."(7) Unlike other environmental problems, the result cannot be reversed or remediated.

      The Supreme Court, in TVA v. Hill,(8) encapsulated and upheld the ESA's primary policy: "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally every section of the statute."(9) Citing the legislative history of the statute, the Court upheld the Congressional edict that species protected under the ESA are priceless:

      As we homogenize the habitats in which these plants and animals

      evolved, and as we increase the pressure for products that they are

      in a position to supply (usually unwillingly) we threaten their -- and

      our own -- genetic heritage.

      The value of this genetic heritage is, quite literally, incalculable.

      Who knows, or can say, what potential cures for cancer or

      other scourges, present or future, may lie locked up in the structures

      of plants which may yet be undiscovered much less analyzed?

      ... Sheer self-interest impels us to be cautious.

      The institutionalization of that caution lies at the heart of

      H.R. 37.(10)

      Indeed, the Supreme Court ratified that institutionalized caution by enjoining the operation of a nearly-completed $100 million federal dam project authorized prior to enactment of the 1973 statute.(11) The Supreme Court found that operation of the Tellico Dam would eliminate the remaining habitat of the endangered snail-darter, and therefore, that the ESA required the Court to enjoin operation of the dam.(12) Even a $100 million expenditure(13) failed to persuade the Court that economic considerations should prevail.

      Concededly, this view of the Act will produce results requiring the

      sacrifice of the anticipated benefits of the project and of many millions

      of dollars in public funds. But examination of the language,

      history, and structure of the legislation under review here indicates

      beyond doubt that Congress intended endangered species to be

      afforded the highest of priorities.(14)

      Since TVA v. Hill, courts have underscored the subservience of economic considerations to the federal policy of species preservation, particularly where preliminary injunctive relief is sought. The numerous cases arising from the designation of the northern spotted owl as endangered illustrate this point.(15) In Portland Audubon Society v. Lujan,(16) the court preliminarily enjoined Bureau of Land Management (BLM) timber sales proposed in northern spotted owl habitat because they could harm the protected spotted owl.(17)

      BLM and defendant intervenors argued that the balance of equities weighed against issuance of an injunction because timber sales in the northern spotted owl habitat were necessary for the economic survival of the timber industry and that the "loss of habitat would have minimal, if any, impact on the survival of the northern spotted owl as a species."(18) Judge Frye of the District Court of Oregon rejected defendants' arguments, concluding that:

      Unreasonable as it may seem to the timber industry and the many

      men and women dependent on timber supply for their very livelihood,

      and unreasonable as it may seem to the counties which receive

      funds from timber harvests ... the law will allow no less in

      this case [than issuance of an injunction].(19)

      Congressional policy gives species preservation priority over economic considerations. This policy has been ratified by the courts, and as the Supreme Court explained, this policy is reflected "in literally every section of the statute."(20)

   2. ESA Statutory Provisions and the Minimal Role of Economics

      In addition to Congress's policy precluding economic considerations, almost all of the specific implementing provisions of the statute expressly foreclose economic consideration. Economics is excluded from the listing process, jeopardy determinations, and taking prohibitions. It may be considered, however, in the designation of critical habitat.

      1. Listing

         Responsibility for listing species under the ESA resides with the Secretaries of Interior and Commerce.(21) The Secretary of Interior delegated this authority to the U.S. Fish and Wildlife Service (FWS), and the Secretary of Commerce delegated its authority to the National Marine Fisheries Service (NMFS). These two agencies promulgated joint regulations implementing the statutory listing process provisions.(22)

         Pursuant to the ESA, species may be listed as endangered or threatened based on any of five statutory factors:

         (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 mechanisms; or

         (E) other natural or manmade factors affecting its continued

         existence.(23)

         In determining whether a species will be listed, the Secretary must rely "solely on the basis of the best scientific and commercial data available . . . ."(24) Even after TVA v. Hill, Congress did not amend the statute to incorporate economics in the listing decision. Moreover, in 1982, Congress explicitly rejected this option, noting that "economic considerations have no relevance to determinations regarding the status of a species . . . ."(25) Instead, Congress amended the ESA by adding the term "solely" to make clear that listing determinations were to be grounded upon an evaluation of the biological risks faced by a species and not upon other non-biological factors.(26) The FWS and NMFS, therefore, are prohibited specifically from considering economics in the listing process. "Consequently, the listing process is exempt from various laws and executive orders that otherwise require an economic analysis."(27)

      2. Jeopardy Determination

         Once listed, a species receives a variety of protections. One of the ESA's most significant protections is the "no-jeopardy" mandate of section 7(a)(2).(28) Specifically, each federal agency is obligated to "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 . . . ."(29) Federal agencies must make the jeopardy determination using "the best scientific and commercial data available."(30)

         In interpreting the section 7 mandate to avoid jeopardy, the Supreme Court held in TVA that economic consequences are irrelevant.(31) After reviewing the legislative history, the Court found that Congress rejected language proffered by the Senate which would have required...