Ping-pong government and the ESA

Recent proposed revisions for the ESA just reset the clock to 2020.

The Trump Administration in November proposed revisions to the regulations implementing the Endangered Species Act (ESA).  Normally, I would try to do a thoughtful review of the changes and what I think their implications are.  But that is really not necessary this time, since what the Administration is proposing is to undo Biden Administration changes and return to the 2019 revisions the first Trump Administration did.  So in the interests of brevity, here are the links to my comments on the regulations back in 2019.

https://legal-planet.org/2019/11/21/analyzing-the-revised-esa-regulations-part-i/

https://legal-planet.org/2019/11/22/analyzing-the-revised-esa-regulations-part-ii/

https://legal-planet.org/2019/11/23/analyzing-the-revised-esa-regulations-part-iii/

https://legal-planet.org/2019/11/24/analyzing-the-revised-esa-regulations-part-iv/

https://legal-planet.org/2019/11/25/analyzing-the-revisions-to-the-esa-regulations-part-v/

There are a few twists here.  For the Section 7 consultation regulations, the 2019 version elaborated a “reasonably certain to occur” standard for whether a result of a federal action might constitute the effects of the action when it is undergoing Section 7 consultation, and thus whether that result should be considered in consultation.  The “reasonably certain” standard itself was not new, but the revisions expanded on it in some detail.  The Administration is now proposing to add two additional factors to consider in determining whether an effect is “reasonably certain to occur”: First, whether “the agency has no ability to prevent the consequence due to its limited statutory authority” – a proposition for which the proposal cites the Seven County case.  No matter that Seven County was a NEPA case – the agencies assert that this is a “transsubstantive” principle not limited to NEPA.  I’m not so sure – proximate cause concepts in public law (as in private law) likely depend on the specific statutory language and goals, and the ESA is quite different from NEPA.  Second, the agencies will consider if “the consequence would occur regardless of whether the proposed action goes forward” – this is a more defensible factor to consider, since it does go to but for causation.  In any case, as I noted with the 2019 revisions, these changes will make it harder to consider the impacts of a federal project on climate change during consultation.

The revisions to the listing regulations contains the controversial 2019 provision that eliminated exclusion of economic costs in considering whether to list a species – this time, the agencies claim this is more consistent with the statutory text.  That is in tension with the relevant caselaw – and also in tension with the fact that the agency is only supposed to consider the “best available scientific and commercial data” when making listing decisions.

Finally, the agencies this time around at times heavily rely on Loper Bright, asserting that their interpretation of the ESA is the “best available” interpretation and therefore is mandated.  I’ve noted the problem with this line of reasoning before (for an earlier proposed revision to the ESA regulations) – it is the courts, not agencies, that determine what is “best available” under Loper Bright, and to the extent there is past caselaw upholding an interpretation under Chevron (true for at least one important provision of these regulations), that interpretation remains good law under Loper Bright.

However, I do think Loper Bright could be significant in the (inevitable) litigation over these changes.  There is a possibility that a court might agree with the Administration that these regulations reflect the “best available” interpretation of the ESA, and thus are mandated.  That would lock these provisions in, such that they could not be revoked by a future Administration, and that is a major change from before Loper Bright.  How that will play out will depend in significant part on which courts decide these challenges, and whether appeals go up to the Supreme Court.  There is a reasonable possibility we might get a circuit split, with the ESA regulations upheld in one or more circuits, and struck down in others – leaving the agencies with a difficult task of managing a national program under different legal standards.  (That was an issue that came up in Loper Bright, but was dismissed by the majority.)

Cover photo:  Eric Biber is a specialist in conservation biology, land-use planning and public lands law