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

Date01 March 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®,, 1-800-433-5120.

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