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Ninth Circuit Orders NMFS To Reassess Dam Decisions
by outdoorwire - 10/17/19 03:17 PM
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Legal Issues Jump to new posts
FWS Ordered to Explain Rio Grande Cutthroat Trout Decision outdoorwire 10/17/19 03:49 PM
On September 26, 2019, the U.S. District Court for the District of Colorado vacated and remanded in part the U.S. Fish and Wildlife Service’s (Service) 2014 determination that listing the Rio Grande cutthroat trout (Oncorhynchus clarki virginalis) under the Endangered Species Act (ESA) was not warranted.

The Rio Grande cutthroat trout is native to high-altitude streams in southern Colorado and New Mexico. In 2008, the Service determined that the Rio Grande cutthroat trout warranted listing as an endangered or threatened species, although listing was precluded by other higher priority listing actions. In evaluating the viability of trout populations, the Service found that only eight populations were “secure,” based on (1) stream length, (2) absence of non-native fish, and (3) population size of at least 2,500 Rio Grande cutthroat trout.

In 2014, the Service determined that listing the Rio Grande cutthroat trout was no longer warranted. Plaintiff Center for Biological Diversity challenged that decision. In contrast with the 2008 determination, the Service estimated that there were 55 populations in “best” or “good” condition, including some populations with fewer than 2,500 fish and as low as 501 fish. The court opined that the administrative record for the Service’s decision did not explain why the Service had apparently lowered its standards for identifying healthy trout populations from its 2008 standards. The court remanded the 2014 determination back to the Service for an explanation of the criteria used to calculate healthy trout populations, following F.C.C. v. Fox Television Stations Inc., 556 U.S. 502, 515 (2009), which held that an agency must provide a detailed justification for a new policy when it “rests upon factual findings that contradict those which underlay its prior policy.”

The Service’s 2014 determination was affirmed in all other respects. The court held that the Service was not required to analyze each of the five statutory factors that govern whether listing of a species under the ESA is appropriate expressly and in seriatim, where the Service addressed the factors holistically as part of its broader analysis, and correlated the risk factors it was considering to the statutory factors. (Section 4 of the ESA provides that a species may be listed based on (1) present or threatened destruction or curtailment of habitat; (2) over utilization for commercial and recreational purposes; (3) disease or predation; (4) the adequacy of existing regulatory mechanisms, and (5) other natural and man-made factors affecting the species. 16 U.S.C. § 1533(a)(1)(A)–(E).)

Source: Lexology
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Access Roundtable Jump to new posts
Separation of Powers Restoration Act would make it easier for courts to strike down federal regulations as unconstitutional outdoorwire 10/17/19 03:42 PM
Have federal agencies been given too much power and leniency by federal courts to write policy?
Context

In a 1984 case dealing with air quality standards set by the Environmental Protection Agency, the Supreme Court ruled that any federal agency rule or regulation should be upheld as constitutional if it was deemed “reasonable” and if Congress hadn’t legislated on the precise issue at question.

The practice which emerged in the subsequent decades has been nicknamed “the Chevron deference,” in which courts usually defer to an inherent presumption of constitutionality regarding federal regulations. This made it far harder, though not impossible, for courts to strike down rules or regulations set by federal agencies as unconstitutional.

Thousands of federal regulations have been issued by agencies ever since, most prominently from the EPA, Education Department, and Department of Health and Human Services. Although it usually makes news when a federal regulation is struck down as unconstitutional, most such regulations have actually been upheld — in no small part because of the Chevron defense.

Although the decision became much more controversial in the subsequent decades, the case Chevron Inc. v. Natural Resources Defense Council was actually a unanimous 6–0 decision at the time. (Three justices did not participate.) Although several of the current conservative justices have criticized the 1984 decision, “There do not appear to be five votes to jettison Chevron just yet,” Daniel Hemel wrote for SCOTUSblog.
What the legislation does

The Separation of Powers Restoration Act would essentially overturn the main ruling in the 1984 Chevron decision, amending federal law to end the practice of courts presuming a federal regulation’s constitutionality.

The bill’s exact text reads: “The court shall not interpret [a] gap or ambiguity as an implicit delegation to the agency of legislative rule making authority, and shall not rely on such gap or ambiguity as a justification either for interpreting agency authority expansively or for deferring to the agency’s interpretation on the question of law.”

The House version was introduced on March 27 as bill number H.R. 1927, by Rep. John Ratcliffe (R-TX4). The Senate version was introduced the same day as bill number S. 909, by Sen. Ben Sasse (R-NE).
What supporters say

Supporters argue the legislation swings the pendulum back towards the system ostensibly laid out by the Constitution, in which Congress writes the laws rather than an unelected bureaucracy.

“This bill is about Schoolhouse Rock basics,” Sen. Sasse said in a press release. “Congress writes the laws, the Executive Branch enforces them, and the courts resolve cases and controversies. That basic system has been turned upside-down: Unelected bureaucrats that nobody can fire write an avalanche of regulations, and the courts just trust them to interpret the limits of the law and even their own regulations. This bill tries to restore some accountability by making sure that judges don’t automatically defer to Washington’s alphabet soup of bureaucracies.”

“The regulatory state in our country has spiraled out of control,” Rep. Ratcliffe said in the same press release.“By usurping the constitutional powers granted to the Judicial Branch, unelected bureaucrats have effectively formulated their own ‘Fourth Branch’ of government, implementing countless rules and regulations — that hold the force of law — without accountability to the American people. This problem has gotten worse over the past few decades thanks to the current precedent that courts should, in many cases, defer to agencies’ interpretation of federal laws and even the regulations that they author, if deemed ‘ambiguous.’”
What opponents say

To see what opponents would counter, it’s worth examining the 1984 original judicial rationale for establishing the Chevron deference in the first place. The Supreme Court majority opinion argued that executive branch agencies, even though staffed by unelected employees, were nonetheless more accountable to the people — by being led by the elected president — than courts are. Thus, courts should refrain from striking down agency regulations as unconstitutional unless absolutely unavoidable.

“Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences,” Justice John Paul Stevens wrote for the Court. “In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments.”

“While agencies are not directly accountable to the people, the Chief Executive is,” Stevens continued. “And it is entirely appropriate for this political branch of the Government to make such policy choices — resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.”

“In such a case, federal judges — who have no constituency — have a duty to respect legitimate policy choices made by those who do.”
Odds of passage

In 2017, the Republican-led House passed the Regulatory Accountability Act of 2017 by a 238–183 vote. Title II of that legislation specified essentially the same policy goal of overturning the Chevron case. The Senate never took the bill up, despite being led by Republicans as well.

All voting House Republicans were in favor, 233–0. Democrats overwhelmingly opposed, 5–183. The five House Democrats in favor were Reps. Jim Costa (D-CA16), Henry Cuellar (D-TX28), Stephanie Murphy (D-FL7), Collin Peterson (D-MN7), and Kurt Schrader (D-OR5).

The current House version has 20 cosponsors, all Republicans. It awaits a potential vote in the House Judiciary Committee, with passage unlikely because of the chamber’s Democratic control.

The Senate version has 12 cosponsors, all Republicans. It awaits a potential vote in the Senate Judiciary Committee, which is more likely.

This article was written by GovTrack Insider staff writer Jesse Rifkin.

Source: GovTrack Insider
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Access Roundtable Jump to new posts
Trump Administration Finalizes New Endangered Species Act Regulations outdoorwire 10/17/19 03:24 PM
The Trump administration recently issued three final rules revising several key aspects of the Endangered Species Act (“ESA”), including: (1) listing species and designating critical habitat under § 4 of the ESA;[1] (2) prohibitions to threatened wildlife and plants under § 4(d);[2] and (3) the § 7 interagency consulting process.[3] The final rules largely mirror the proposed rules from July 2018 and became effective on September 26, 2019.

Democratic lawmakers, state attorneys general, and environmental groups are challenging the new rules. On September 25, 2019, seventeen states, along with Washington, D.C. and New York City, filed suit in the U.S. District Court for the Northern District of California,[4] and environmental groups filed suit on August 21, 2019.[5] Senator Tom Udall (D-NM) has threatened to invoke the Congressional Review Act (“CRA”)[6] to kill the rules, although President Trump would have veto power over such a CRA resolution.[7]

K&L Gates will continue to monitor and provide updates on the implementation and legal challenges of the new ESA rules.

I. Section 4 Revisions

The U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) have made numerous changes to the regulations implementing § 4 of the ESA, specifically pertaining to the listing, delisting, or reclassifying of species and the designation of critical habitat.

a. Factors for Listing, Delisting, or Reclassifying Species

The Services made three changes to the factors for listing, delisting, or reclassifying species under § 4. First, the new rule removes the phrase “without reference to possible economic or other impacts of such determination” from the factors to consider for listing, delisting, or reclassifying species.[8] The Services acknowledged that the ESA prohibits listing agencies from considering economic factors in their listing decisions but asserts that the ESA “does not prohibit the Services from compiling economic information or presenting that information to the public, so long as such information does not influence the listing determination.”[9] Thus, the Services found that it was “in the public interest and consistent with the statutory framework to delete the unnecessary language from our regulation while still affirming that we will not consider information on economic or other impacts in the course of listing determination.”[10]

Second, the Services added a new paragraph to 50 C.F.R. § 424.11 defining how FWS will consider the “foreseeable future.” The ESA defines a “threatened species” as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range[,]”[11] but the term “foreseeable future” is not defined in the ESA or previous implementing regulations. Prior to the new rule, agencies relied on a 2009 opinion from the Department of the Interior, Office of the Solicitor.[12] The new rule is consistent with the 2009 opinion. 50 C.F.R. § 424.11(d) now defines “foreseeable future” accordingly:

In determining whether a species is a threatened species, the Services must analyze whether the species is likely to become an endangered species within the foreseeable future. The term foreseeable future extends only so far into the future as the Services can reasonably determine that both the future threats and the species’ responses to those threats are likely. The Services will describe the foreseeable future on a case-by-case basis, using the best available data and taking into account considerations such as the species’ life-history characteristics, threat-projection timeframes, and environmental variability. The Services need not identify the foreseeable future in terms of a specific period of time.[13]

Third, the Services revised the regulation governing the factors to be considered when delisting a species. The new rule clarifies that when considering whether to delist a species or not, the Services will consider the same standards for listing a species under 50 C.F.R. § 424.11(c).[14] While opponents to the final rule were concerned over the Services removal of the terms “recovery” and “error” from the regulatory text, the Services reasoned that they will “continue to explain in proposed and final delisting rules why the species is being removed from the lists — whether due to recovery, extinction, error, or other reasons. These revisions do not alter, in any way, the Services’ continued goal of recovery for all listed species.”[15]

b. Critical Habitat

The Services made two changes to the critical habitat rule. First, the Services expanded the situations in which a designation of critical habitat may not be “prudent.” The prior regulation set forth two situations in which designation of critical habitat would not be prudent,[16] but the new regulation specifies five circumstances in which a critical habitat designation would not be prudent:

(i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species;

(ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act;

(iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States;

(iv) No areas meet the definition of critical habitat; or

(v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available.[17]

Second, the new rule requires the “areas where threatened or endangered species are present at the time of listing to be evaluated first before unoccupied areas are considered” and imposes a “heightened standard for unoccupied areas to be designated as critical habitat.”[18] The new rule responds to the U.S. Supreme Court’s recent holding in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service[19] that “an area must be habitat before that area could meet the narrower category of ‘critical habitat,’ regardless of whether that area is occupied or unoccupied.”[20]

Pursuant to the new rule,[21] unoccupied critical habitat will be designated only “upon a determination that such areas are essential for the conservation of the species” if the “geographical areas occupied would be inadequate to ensure the conservation of the species.” Additionally, for an unoccupied area to be considered essential, there must be “reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species.”[22]

II. FWS Rescinds § 4(d) Blanket Rule for Threatened Species

Next, the FWS rescinded its § 4(d) “blanket rule” to better align FWS’s regulatory approach for threatened species with NMFS’s approach. Section 9 of the ESA prohibits the “take” (e.g., action that would harass, harm, capture, or kill) of any endangered species, but the ESA does not explicitly prohibit the take of threatened species. Instead, § 4(d) of the ESA instructs agencies to issue regulations as deemed “necessary and advisable to provide for the conservation of [threatened] species.”[23] Commonly referred to as the “blanket rule,” FWS regulations[24] extend most of the prohibitions for endangered species to threatened species.

NMFS does not have a § 4(d) blanket rule like the FWS. Instead, NMFS promulgates species-specific § 4(d) protections on a case-by-case basis, if warranted, at the time of listing. Under the new rule, FWS adopts NMFS’ approach, and will promulgate a species-specific § 4(d) protections on a case-by-case basis, if warranted, at the time of listing.

III. Section 7 Interagency Consultation Revisions

The Services made several changes to the regulations governing the interagency consulting process required by the ESA. Section 7 requires federal agencies to consult with the Services to insure that any federal action “is not likely to jeopardize the continued existence” of any endangered or threatened species or result in the destruction or adverse modification of critical habitat.[25]

a. Revised § 7 Definitions

The new § 7 Rule revises definitions of several key terms, which has ramifications for the § 7 process. For example, the new rule revises the definition of “destruction or adverse modification” of critical habitat in the jeopardy context by adding the phrase, “as a whole.” The intent of this revision is to clarify that the “final destruction or adverse modification determination is made at the scale of the entire critical habitat designation.”[26] The Services explained, “[s]maller scales can be very important analysis tools in determining how the impacts may translate to the entire designated critical habitat, but the final determination is not made at the action area, critical habitat unit, or other less extensive scale.”[27]

The new rule also revised the definition of “effects of the action”[28] “by collapsing the terms ‘direct,’ ‘indirect,’ ‘interrelated,’ and ‘interdependent’ and by applying a two-part test of ‘but for’ and ‘reasonably certain to occur.’”[29] The new definition reads: '

Effects of the action are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action.

The Services do not intend this new definition to alter how they analyze the effects of a proposed action and assert that they will continue to review all effects (direct, indirect, and the effects from interrelated and interdependent activities) under the revised definition.[30]

Additionally, the new rule created a new, stand-alone definition of “environmental baseline” to make it clear that “‘environmental baseline’ is a separate consideration from the effects of the action.”[31] The definition features a sentence “to clarify that the consequences of ongoing agency activities or existing agency facilities that are not within the agency’s discretion to modify are included in the environmental baseline.”[32] The Services believe this sentence was necessary to clarify what impacts should be incorporated into the environmental baseline and assert that the change is supported by the Supreme Court’s conclusion in National Association of Home Builders v. Defenders of Wildlife.[33]

Lastly, the new rule adds a definition of “programmatic consultation” to codify a consultation technique that has been successfully used for several years to improve efficiency and conservation in consultations.[34]

b. Changes to the § 7 Consultation Processes

The Services made several amendments regarding the formal consultation process. First, the Services clarified what is necessary to initiate the formal consultation process by explicitly describing the type of information the agency needs to provide to the Services with its “initiation package.” Moreover, an agency may now submit National Environmental Policy Act (“NEPA”) analyses or other reports as a substitute for the “initiation package.”[35] Second, the new rule allows the Services to adopt all or part of an agency’s initiation package — which can now include NEPA analyses — in its biological opinions. Third, the Services also added a new provision allowing “expedited consultations” for actions that have “minimal adverse effects or predictable effects based on previous consultation experience.”[36]

The Services also modified the formal consultation process by inserting a new provision, 50 C.F.R. § 402.14(g)(8), which will allow the Services to rely on an agency’s assertion that it will mitigate incidental take without requiring “specific” or binding plans from that agency.[37] Section 7(a)(2) of the ESA requires federal agencies to “insure” that any action does not jeopardize endangered or threatened species or cause the destruction or adverse modification of critical habitat. To satisfy this charge, the Services’ regulation (specifically 50 C.F.R. �� 402.14(g)(8)) details whether and how the Services should consider measures in a proposed action intended to avoid, minimize, or offset adverse effects to listed species or critical habitat. Courts have held “that even an expressed sincere commitment by a Federal agency or applicant to implement future improvements to benefit a species must be rejected absent ‘specific and binding plans’ with ‘a clear, definite, commitment of resources for future improvements.’”[38] In the new rule, however, the Services make it clear that “[m]easures included in the proposed action or a reasonable and prudent alternative that are intended to avoid, minimize, or offset the effects of an action are considered like other portions of the action and do not require any additional demonstration of binding plans.”[39] The Services disagree that the statute requires a “heightened standard of documentation … before the Services can consider the effects of measures included in a proposed action to avoid, minimize, or offset adverse effects.”[40] The Services explain:

Section 7 of the Act places obligations on Federal agencies to insure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat. A Federal agency fulfils this substantive obligation “in consultation with” and “with the assistance of” the Services. In situations where an adverse effect to listed species or critical habitat is likely, the consultation with the Services results in a biological opinion that sets forth the Services’ opinion detailing how the agency action affects the species or its critical habitat. Ultimately, after the Services render an opinion, the Federal agency must still determine how to proceed with its action in a manner that is consistent with avoiding jeopardy and destruction or adverse modification. Thus, the Act leaves the final responsibility for compliance with section 7(a)(2)’s substantive requirements with the Federal action agencies, not the Services.[41]

The Services also revised the rules related to the reinitiation of consultations to clarify that reinitiation applies to all consultations[42] not just formal consultations. The new rule also exempted existing programmatic land plans prepared under the Federal Land Policy and Management Act or the National Forest Management Act from the duty to reinitiate when a new species is listed or when new critical habitat is designated.[43]

For informal consultation, the Services instituted a 60-day deadline, subject to extension by mutual consent of up to 120 days.[44] In one departure from the proposed rule, the Services declined to revise 50 C.F.R. § 402.03 for circumstances in which consultation was not required.

Source: Lexology
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Access Roundtable Jump to new posts
President Issues Executive Orders on Guidance Documents and Transparency outdoorwire 10/17/19 03:20 PM
Seyfarth Synopsis: The regulated community had a pleasant surprise from President Trump this week. The President issued two executive orders that have the stated intent to make closeted or last minute agency guidance and interpretations of federal rules a thing of the past. The orders require notice and publication of the guidance and interpretations along with the creation of comprehensive online databases where they may be easily searched out and found.

President Trump, in another business friendly action, issued two executive orders this week. They were the Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents (Executive Order on Guidance Documents), and the Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication (Executive Order on Transparency). In the President’s Remarks, he noted that “today, we take bold, new action to protect Americans from out-of-control bureaucracy and stop regulators from imposing secret rules and hidden penalties on the American people.”

Many agencies, including the U.S. Environmental Protection Agency, the Occupational Safety and Health Administration, and the Department of Labor utilize guidance documents to provide the public, as well as agency enforcement and litigation personnel, with the agency’s interpretation of a policy, procedure or regulation.

The President indicated that the Orders were intended to improve public access to internal agency guidance documents and to protect the public from previously-undisclosed interpretations of regulations. While Courts have been clear that agency guidance documents do not carry the force of law, the U.S. Supreme Court recently upheld judicial use of so-called Auer and Seminole Rock deference – a topic which we have blogged about extensively. While a guidance document itself cannot be legally binding, it could potentially provide an agency an avenue to argue that its interpretation should be accorded judicial deference. This potential argument is addressed in the Executive Order on Transparency, which prevents an agency for arguing that an unpublished guidance document should be accorded deference.

Major changes that the regulated community may look forward to include, from the Executive Order on Guidance Documents, Section 3, Ensuring Transparent Use of Guidance Documents:

(a) Within 120 days of the date on which the Office of Management and Budget (OMB) issues an implementing memorandum under section 6 of this order, each agency or agency component, as appropriate, shall establish or maintain on its website a single, searchable, indexed database that contains or links to all guidance documents in effect from such agency or component. The website shall note that guidance documents lack the force and effect of law, except as authorized by law or as incorporated into a contract.

In Section 5 of the Executive Order on Transparency:

Any decision in an agency adjudication, administrative order, or agency document on which an agency relies to assert a new or expanded claim of jurisdiction — such as a claim to regulate a new subject matter or an explanation of a new basis for liability — must be published, either in full or by citation if publicly available, in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect) before the conduct over which jurisdiction is sought occurs. If an agency intends to rely on a document arising out of litigation (other than a published opinion of an adjudicator), such as a brief, a consent decree, or a settlement agreement, to establish jurisdiction in future administrative enforcement actions or adjudications involving persons who were not parties to the litigation, it must publish that document, either in full or by citation if publicly available, in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect) and provide an explanation of its jurisdictional implications. An agency may not seek judicial deference to its interpretation of a document arising out of litigation (other than a published opinion of an adjudicator) in order to establish a new or expanded claim or jurisdiction unless it has published the document or a notice of availability in the Federal Register (or on the portion of the agency’s website that contains a single, searchable, indexed database of all guidance documents in effect).

Source: Lexology
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Wildlife Jump to new posts
Ninth Circuit Orders NMFS To Reassess Dam Decisions outdoorwire 10/17/19 03:17 PM
In a recent opinion, the United States Court of Appeals for the Ninth Circuit reversed in part the United States District Court for the Eastern District of California’s grant of summary judgment to the National Marine Fisheries Service (“NMFS”) in Friends of the River v. NMFS, No. 18-15623 (9th Cir. Oct. 3, 2019).

Plaintiff Friends of the River (“FOR”) challenged (1) NMFS’ decision to characterize the existence of federally-managed dams on the Yuba River as part of the environmental baseline in a 2014 BiOp and Letter of Concurrence (“LOC”) issued to the Corps for the dams; (2) the Corps’ issuance of licenses to operate existing water diversions and hydroelectric facilities, which it claimed violated the Endangered Species Act by authorizing activities that would take listed fish without an incidental take statement; and (3) NMFS and the Corps’ failure to reinitiate consultation because of allegedly changed circumstances. As we previously reported, the District Court rejected all of FOR’s claims.

The Ninth Circuit found that NMFS’s treatment of the dams as part of the “environmental baseline” was arbitrary and capricious. Prior to 2014, NMFS had treated the dams as part of the “agency action.” Thus, NMFS was required to provide a “reasoned explanation” for considering the dams to be part of the “environmental baseline” in the 2014 BiOp and LOC. The Ninth Circuit found that NMFS failed to adequately explain why it changed its approach, and remanded the BiOp and LOC to NMFS to “reassess.”

The Ninth Circuit also remanded to the district court the question of whether the Corps was taking threatened fish by licensing and granting easements to third parties to operate water diversions and hydroelectric facilities, because the district court had not fully analyzed this claim. However, the Ninth Circuit affirmed the district court’s holding that NMFS and the Corps were not required to reinitiate consultation based on new information, because FOR failed to identify how new information revealed effects that had not been previously considered in the 2014 BiOp and LOC, and because FOR failed to comply with the requirement to provide NMFS with 60 days’ notice of this claim.

Source: Lexology
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