Obama overhaul draws GOP support, raises legal questions

By Phil Taylor, Corbin Hiar | 05/19/2015 01:21 PM EDT

In a move that drew rare cheers from Republicans, industry groups and states, the Obama administration yesterday announced a suite of changes that it claims would make Endangered Species Act decisions more efficient, collaborative and transparent to the public.

In a move that drew rare cheers from Republicans, industry groups and states, the Obama administration yesterday announced a suite of changes that it claims would make Endangered Species Act decisions more efficient, collaborative and transparent to the public.

The joint rulemaking by the Fish and Wildlife Service and National Marine Fisheries Service appears aimed at mollifying conservatives in Congress who have pledged to overhaul the ESA.

While the 4-decade-old law has prevented more than 99 percent of listed species from going extinct, its critics in Congress say the law has failed to recover all but roughly 2 percent of them while hamstringing homebuilders, loggers, ranchers and other land users.


The new rule proposed yesterday would set a higher bar for petitions filed under the law to list new species as threatened or endangered, to change a species’ status, to delist a species or to change the boundaries of critical habitat. It seeks to improve the quality of petitions so the agencies can better focus their efforts on ones that may warrant action.

But environmentalists and some ESA experts criticized the proposal as possibly increasing the agencies’ workload and questioned whether some of its provisions are legal.

Under ESA, once either agency receives a listing petition from the public, it has 90 days to decide whether the petition contains sufficient information to suggest that the requested action — listing or delisting — may be warranted. If the answer is "yes," the agencies have an additional 12 months to decide whether to propose a listing rule.

But the sheer volume of petitions by environmental groups in recent years has exceeded FWS’s capacity to respond to them, often landing the agency in court. In the four years leading to 2011 — when the agency signed a sweeping legal settlement with two green groups — the agency had been petitioned to list more than 1,230 species, nearly as many as had been listed during the previous 30 years.

In a notable shift, the new rule would limit listing petitions to just one species at a time, a move aimed at banning "mega-petitions" such as one submitted in April 2010 by the Center for Biological Diversity and other environmental groups to list 404 species of aquatic, wetland and riparian species in the Southeast.

Such petitions in the past have been vaguely written and difficult to follow, the agencies said. The proposed rule sets no limits on the number of species for which a group may petition for protections, but it requires the information to be organized on a species-by-species basis.

And in a significant overture to states, the new rule would also require petitioners to provide a copy of their petitions to state fish and game agencies at least 30 days before they are submitted to FWS. If a state wishes to submit comments on the accuracy or completeness of the petition, those comments must be submitted to Fish and Wildlife with the petition, the rule says.

Larry Voyles, president of the Association of Fish and Wildlife Agencies, said the consultation provision is "due recognition" of the expertise of states and the intent of ESA to base decisions on the best available science.

The state consultation requirement would be limited to species under the jurisdiction of FWS, given the potential difficulties of coordinating with states on protections for marine species and migrating fish that are overseen by NMFS, the rule said. But the agency asked the public whether petitions to NMFS should also be included in this requirement.

Stringent data requirements

The rule also clarifies that petitions must contain clearer documentation of the threats to wildlife.

It would require petitions to contain "all relevant information … that is reasonably available, such as that available on websites maintained by the affected states" about a species’ status, including information that may not support a listing.

It would also require petitions to contain:

  • Literature citations that are specific enough for the agencies to find the information, including by page and chapter.
  • Electronic or hard copies of any supporting materials such as publications, maps, reports and letters cited in the petition, or valid links to public websites where the information can be found.
  • Information demonstrating that the petitioned wildlife meets ESA’s definition of a "species."
  • Information on current population status and trends and estimates of current population sizes and distributions, both in captivity and the wild, if available.

The rule would allow FWS to return a petition if it fails to contain any of the required elements.

Another section of the rule would clarify what constitutes "substantial scientific or commercial information" indicating that the petitioned action may be warranted. That’s a key phrase in the 1973 species law that dictates whether Fish and Wildlife invests more time evaluating a recommended listing or downlisting.

According to the rule, a petition that meets this threshold must contain "credible scientific or commercial information in support of the petition’s claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted."

"For example, a petition that states only that a species is rare and thus should be listed, without other credible information regarding its status, does not provide substantial information," it says.

Moreover, the rule also clarifies that if a group wants to resubmit a petition for a species for which FWS has already denied a petition, the revised petition must contain substantially new information to back up its claims.

"These changes would improve the quality of petitions through expanded content requirements and guidelines; and, in doing so; better focus the Services’ energies on petitions that merit further analysis," the rule states.

Proposal underscores industry and GOP concerns

The petition process change was welcomed by the National Endangered Species Act Reform Coalition, an alliance of land users that includes agriculture and energy trade groups.

"While we are still reviewing the substance of the proposed rule, NESARC is pleased to see the Services recognize and take action to deter abusive petitioning practices," said Ryan Yates, the group’s chairman and the director of congressional relations at the American Farm Bureau Federation. "Requiring more detailed information as part of the submission of petitions and consultation with states will ensure that a more robust record is placed before the services."

The rule came one day before a House Natural Resources Committee hearing to tout states’ expertise in managing and recovering the greater sage grouse, a wide-ranging Western species whose population has taken a major tumble over the past several years as a result of fragmentation and destruction of its sagebrush steppe habitat.

Committee Chairman Rob Bishop (R-Utah) has pledged to advance a package of ESA reform bills that were recommended by a GOP working group last session. In the Senate, Environment and Public Works Chairman James Inhofe (R-Okla.) has suggested that any broader ESA overhaul legislation that his staff puts together would likely address the law’s "lack of transparency."

The Obama administration seems intent on heading off these bills.

In addition to yesterday’s rule governing listing petitions, the administration said it will also in the future post online all information that can be publicly disclosed related to proposed listing and critical habitat designations. It also plans to strengthen procedures to ensure "consistent, transparent and objective peer-review of proposed decisions," it said.

The administration also said it will update guidance for voluntary, proactive conservation tools such as safe harbor and candidate conservation agreements and conservation banking while streamlining interagency consultation procedures and habitat conservation plan permitting.

The administration is also in the process of finalizing policies on prelisting conservation credits and on critical habitat exclusions.

Yesterday’s announcement drew tepid applause from the administration’s toughest critics, including Inhofe.

"The chairman is glad to see the FWS is acknowledging that changes need to be made to the Endangered Species Act," said Inhofe spokeswoman Kristina Baum. "He is reviewing those changes and will take them into consideration as the committee works towards reform of a law that has only recovered less than 2 percent of species listed."

Bishop was more circumspect.

"The Obama administration admitted today that the process by which Endangered Species Act listing determinations are made is insufficient, and then asked the American people to trust them to fix the problem," he said in a statement. "I don’t buy it."

Bishop said ESA designations have been "driven not by sound science and citizen input but litigation from national special interest environmental groups" and said that only time will tell if yesterday’s announcement will translate to reforms on the ground.

But Rep. Cynthia Lummis (R-Wyo.), an outspoken ESA critic, this morning said, "It is a refreshing day when the administration admits that the law needs more transparency, more state and local involvement and less unproductive litigation."

"We need to make sure that while the administration took a positive verbal step yesterday, that they follow through and fix the problems as they exist on the ground, not just here in Washington among bureaucrats," she said.

A spokesman for Rep. Raúl Grijalva (D-Ariz.), the committee’s ranking member, declined to comment on the proposed changes by publication time.

Brian Seasholes, who directs the endangered species project at the libertarian Reason Foundation based in Los Angeles, called the administration’s announcement "an extremely marginal step in the right direction."

"But the larger problem still remains that the Endangered Species Act harms conservation through its punitive approach," he said. He added that the rule leaves federal wildlife managers with too much discretion and does not address the hundreds of species for which FWS is already issuing listing determinations under a 2011 settlement with green groups.

The Independent Petroleum Association of America signaled optimism that the new rule would increase stakeholder engagement and transparency.

"Over the years, we have been pleased to see the growing number of voices — and finally even the Obama Administration’s own — joining in the chorus and signifying changes are needed to once again re-focus on the original purpose of the law: true species recovery," said an emailed statement by the association’s spokesman, Neal Kirby.

Questions of legality and efficacy

But environmentalists and ESA experts argued that the proposal was more focused on reducing the number of species petitions that FWS and NMFS receive and fending off Republican reform bills.

"Unfortunately, there are much more reasonable ways to address the services’ concerns — ways that are less onerous for petitioners and more legally defensible," said Ya-Wei Li, the director of endangered species conservation at Defenders of Wildlife, an environmental group that occasionally petitions the federal government to protect imperiled species.

Li pointed to a 2006 decision in which the U.S. District Court for the District of Columbia ordered FWS to redo a 90-day review of the Colorado River cutthroat trout after it went "beyond the four corners of the petition" and solicited information from certain state and federal agencies. "Interpreting ESA regulations to allow FWS to solicit information from outside agencies at the 90-day stage would render meaningless the detailed notice and comment provision for full-status species review," the court said.

Li’s concerns about the legality of the state consultation requirement were echoed by Don Baur, a partner at the Seattle-based law firm Perkins Coie.

"I think that would be an excellent recommendation in the form of agency guidance to any group that’s going to submit a petition — whether it’s to list, or delist or declare critical habitat," said Baur, who has represented a broad range of utilities, corporations and environmental groups in ESA disputes. "But to make it a mandatory requirement that has to be satisfied before a petition can be entertained I think goes beyond what the Endangered Species Act lays out as a pretty clear process for submitting petitions."

Both Li and Baur expect the petition process changes to be challenged in court if they are finalized.

Furthermore, other experts on the law question whether the proposal and its ban on multi-species petitions would help to reduce the services’ listing backlog.

"The prohibition on multi-species listing just means that FWS will get 50 or a 100 petitions instead of one. It might actually increase the workload on the agencies," said University of Vermont Law professor Patrick Parenteau, who was a special counsel to the Fish and Wildlife Service in the early 1990s, when it was considering ESA exemptions for the threatened northern spotted owl. "The statutory time limits will still demand answers within 12 months to each petition."

Li suggested that requiring FWS and NMFS to address each petition individually — even if they cover similar species in the same ecosystem — may prove to be an expensive mistake.

"Instead of issuing one federal register notice on a multispecies petition, the Services may need to issue a federal register notice on each petition," he wrote in an email. "At roughly $400/page for a federal register publication, the costs add up quickly."

At the same time, environmentalists and ESA experts are still hopeful that the forthcoming transparency and voluntary conservation efforts that the administration promised yesterday will help improve the law.

While there are still few details about these plans, "it’s clear that the administration feels that it is not necessary to amend the Endangered Species Act to improve how effective and efficient it is and that these proposals are intended to show why that’s the case," Baur said. "And the ideas that they’re advancing I think are all very good."

The last major administrative reforms to the ESA were done during the Clinton administration, when the law was under pressure from another Republican-controlled Congress. Those allowed for the creation of conservation banks and other advanced mitigation tools that the Obama administration said it plans to promote.

"That was a good thing, and there were no amendments that were passed," Baur said of the Clinton-era reforms. "It appears that the current administration is pursuing the same approach, and if the result is the same — that they make meaningful changes that improve the administration of the Endangered Species Act — then I think that’s a positive result."