The Outer Limits of Endangered Species Act Liability-The ESA's Indirect Effect Regulation and Its Application to Climate Change

Date01 March 2011
Author
41 ELR 10204 ENVIRONMENTAL LAW REPORTER 3-2011
The Outer Limits of Endangered
Species Act Liability—The ESAs
Indirect Effect Regulation and Its
Application to Climate Change
by Hanspeter Walter
Hanspeter Walter is a Senior Associate with the law rm of Kronick Moskovitz Tiedemann and Girard.
Good scientists have active minds and creative imag-
inations. ese traits allow scientists to develop
hypotheses and design experiments to test them
with the hope of moving scientic inquiry and the state of
knowledge ever further. While most laws do not implicate
or emphasize science, the federal Endangered Species Act
(ESA)1 is among the few that does. Specically, ESA §7
demands that during consultation on the potential eects
of federal actions on ESA-listed species, “each [federal]
agency shall use the best scientic and commercial data
available.”2 Unlike in pure scientic investigation, however,
the ESA limits the scope of inquiry with regard to assess-
ing the indirect eects of an action. us, where a scien-
tist might conceive of a potential indirect eect from use
of a pesticide, implementation of a resource management
regime, or carbon emissions from a local power plant, the
ESA demands more before such possibilities are labeled
indirect eects of the action.
In particular, for an indirect eect to be cognizable
under the ESA, more proof of that eect is necessary than
the ordinary standard of foreseeability applied in other
environmental analyses, such as under the National Envi-
ronmental Policy Act (NEPA).3 is higher standard is
found in an ESA regulation that requires indirect eects
be “reasonably certain to occur.” If properly applied, this
regulation should limit imposition of ESA liability on fed-
eral action agencies and nonfederal applicants for alleged
indirect eects for which little empirical evidence, but
much scientic speculation, exists.
I. The ESA’s Indirect Effect Regulation
In 1986, the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (collectively, Services)
1. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.
2. 16 U.S.C. §1536(a)(2).
3. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
adopted regulations addressing ESA §7 consultations.4
ose regulations dene indirect eects as “those [eects]
that are caused by the proposed action and are later in time,
but still are reasonably certain to occur.”5 e Services also
included the “reasonably certain to occur” language in their
denition of cumulative eects.6 Any lawyer recognizes the
phrase “reasonably certain to occur” as embodying some
form of evidentiary or proximate standard, but how should
it be applied in the context of ESA consultations?
e Services provided insight into this question in
the preamble to their 1986 Final Rule adopting the ESA
consultation regulations.7 ere, the Services addressed
comments to the proposed regulations. One comment
expressed dissatisfaction with the “reasonably certain to
occur” standard, and instead suggested equating the scope
of ESA cumulative eects with those under NEPA, which
employs a “foreseeability” standard for cumulative and
indirect eects.8 e Services explained they had expressly
chosen to impose a higher standard under the ESA than
the mere “foreseeability” standard under NEPA:
If the jeopardy sta ndard is e xceeded, the proposed Fed-
eral action ca nnot proceed without a n exemption. is
is a subst antive proh ibition that applies to t he Federa l
action involved in consultat ion. In contra st, N EPA is
procedur al in nature, rat her than substa ntive, which
would warrant a m ore expa nded rev iew of cumulati ve
eects . Othe rwise, in a pa rticular situation, the jeop-
ardy prohibition could oper ate to block “nonjeopa rdy”
5. 50 C.F.R. §402.02 (emphasis added).
6. Id.
7. 51 Fed. Reg. 19926 (June 3, 1986) [hereinafter Preamble].
8. See 40 C.F.R. §1508.8 (dening indirect eects as “those that are caused by
the action and are later in time or farther in distance, but are still reasonably
foreseeable . ..”); 40 C.F.R. §1508.7 (dening cumulative impact as “the
impact on the environment which results from the incremental impact of
the action when added to other past, present, and reasonably foreseeable
future actions ...”).
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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