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ESA revised regulations: what to expect
by outdoorwire - 09/14/19 12:37 AM
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ESA revised regulations: what to expect outdoorwire 09/14/19 12:37 AM
There has been much coverage and misinformation in the public discourse regarding Interior’s recently-announced revisions of regulations to implement the Endangered Species Act (ESA). Doug Wheeler and Hilary Tompkins bring their extensive knowledge as former Interior officials and natural resources practitioners to describe the likely real-world effect of these regulations.

The revised regulations affect three important provisions of the ESA: (1) the statutory distinction between species which are listed as “endangered” or “threatened”; (2) Section 4 procedures for listing and de-listing species, and designation of critical habitat; and (3) Section 7 consultation between the Fish and Wildlife Service (Service or FWS) and federal agencies whose actions might affect listed species and their habitat. Not surprisingly, environmental advocates have already sued the U.S. Department of the Interior and Commerce Department, which share responsibility for administration of the ESA, alleging that the regulatory changes violate the ESA and the National Environmental Policy Act. Below is a summary of these changes and potential implications for the regulated community.

Threatened or Endangered?

Although the statute distinguishes between species which are in danger of extinction (“endangered”) and those which are likely to become endangered (“threatened”), the FWS (but not the National Marine Fisheries Service (NMFS)) has long conflated these definitions, applying the same stringent protections to both, such as blanket “take” restrictions under Section 9 of the ESA. In roughly 50 percent of cases, however, the FWS has modified the level of protection for threatened species by providing specific exemptions from these blanket prohibitions under authority of Section 4(d), usually in recognition of prescribed conservation measures. In light of criticism that, by default, the FWS had extended Section 9 prohibitions to all species, whether endangered or threatened, the Agency will now be required – in the first instance – to write tailored protection and recovery plans for threatened species. This change brings FWS’ approach in line with the NMFS’ existing practice, and arguably reduces its leverage in negotiating the content of future 4(d) rules. It does not affect existing 4(d) rules, or impair FWS’ authority to write rigorous 4(d) rules, if circumstances warrant, on a case-by-case basis. The FWS will also now be required to issue any 4(d) rule at the time of listing to ensure timely species protection. One potential positive effect is that contemporaneous prescription of 4(d) rules may expedite the Section 7 consultation process. Consulting parties will have a clear, early understanding of species-specific Section 9 prohibitions and exemptions. Moreover, FWS estimates that only approximately four species will be listed as threatened annually, so the changes will be applicable in only these few instances.

Listing Decisions

A) Consideration of economic or other impacts from listing decisions

While affirming the statutory mandate that listing decisions can be made only in reliance on the “best scientific and commercial data available,” the revised regulations no longer require that listing decisions be made “without reference to possible economic or other impacts of such determination.” Apparently, the FWS anticipates the occasional preparation of economic impacts analyses, if only because “the Act does not prohibit the Services from compiling economic information or presenting that information to the public.” It remains to be seen whether the Services will routinely undertake the costly and time-consuming preparation of such studies, and whether the results of such studies will, in fact, influence the listing process. Since the ESA does not permit reliance on economic impacts in listing decisions, complainants must somehow demonstrate that a given listing decision was influenced by the publication of economic data.

B) Foreseeable Future

The ESA provides that a threatened species is “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Since 2009, Interior has abided by a Solicitor’s Opinion which interprets “foreseeable future” to mean that period in which it can be reasonably determined that threats and responses to threats are “likely” to occur. The revised regulations do not depart from this general formulation, except where change is needed to achieve uniformity of language between the Services. The amended definition thus reaffirms Interior’s approach of considering a limited time horizon when analyzing the likelihood of foreseeable threats. The key words are “threats,” implicating explicit evidence of a threat (as opposed to an unspecified condition), and “likely,” which is meant to mean “more likely than not.” Critics will argue that the regulation disfavors the Solicitor’s Opinion by imposing a requirement of near-certainty (“likely”) in predicting future events, as opposed to dependence on merely reliable evidence. In assessing the future effects of climate change, therefore, it will be necessary to demonstrate the likelihood of impact, and a debilitating response by species to such threats. The Services will continue to make these determinations on a case-by-case basis, guided by the five factors of the ESA. In the event of a legal challenge, the fact the revised regulation largely comports with a prior, long standing Solicitor’s Opinion will weigh in Interior’s favor.

Designation of Critical Habitat

A) Not Be Prudent to Designate

Under the ESA, the Services may decline to designate critical habitat when designation would not be in the interest of species protection (i.e., directing the Secretary to designate critical habitat for listed species concurrent with listing “to the maximum extent prudent and determinable”). This “not prudent” standard has been typically viewed as applying when the designation would not be beneficial to the species or is otherwise counterproductive. While generally preserving these exceptions, the revised regulation is permissive rather than mandatory, and expands the circumstances under which designation could be excused. These circumstances now include the designation of areas within U.S. jurisdiction that would provide only negligible conservation value to a species that occurs primarily outside the jurisdiction of the United States or where threats to the species stem solely from causes that cannot be addressed by management actions identified through Section 7 consultations.

The FWS notes that it still requires consideration of the applicable science in making a “not prudent” determination and does not broaden FWS’ authority to consider factors other than those contemplated by the statute. It also notes that “not prudent” determinations would likely be rare and are distinct from the “exclusion” analysis under Section 4(b)(2), where the FWS can exclude an area from critical habitat when the benefits of exclusion outweigh the benefits of inclusion.

B) Unoccupied Critical Habitat

The FWS also adopted new regulatory language which reflects the Supreme Court’s Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018) ruling which limits the designation of unoccupied habitat as critical habitat. Grappling with the essential meaning of “habitat,” the FWS now requires that an unoccupied area must be “essential for the conservation of the species,” meaning that “there is a 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.”

Moreover, the FWS will only designate unoccupied habitat as critical if it determines that occupied critical habitat is inadequate for the conservation of the species and that the addition of unoccupied habitat is necessary for the species’ wellbeing. Unoccupied habitat must also be found to possess “one or more of those physical or biological features” which are essential to conservation of the species.

Section 7 Consultation

A) Effects of the action

Under Section 7 of the ESA, an agency must consult with the FWS to determine if its proposed action is likely to either jeopardize the survival and recovery of a listed species or destroy or adversely modify a species’ designated critical habitat. In the first instance, this analysis must include an assessment of the proposed action’s effects on the listed species or designated habitat. The revisions change the definition of “effects of the action” to include the causal reference to “consequence” and a “but for” connection between the consequence and the proposed action. This revision is intended to clarify the meaning of “effects” and to preclude separate analyses of multiple but unrelated effects and activities (e.g., direct or indirect effect, or interdependent or interrelated activity).

The FWS states that the change is intended to further clarify that “effects of the action” will now include all consequences of a proposed action, including consequences of any ancillary disruption which may be caused by the proposed action. In the FWS’ view, a consequence results from the proposed action if (1) it would not occur but for the proposed action and (2) it is reasonably certain to occur (referred to as the “two part” test). The FWS further notes that the effects of the action may occur later in time and may include consequences occurring outside the immediate area of the action. The FWS notes that it has long used these “but for” and “reasonably certain to occur” standards and wants now to provide greater clarity of this practice in its regulations.

The practical result of these revisions may be that fewer projects trigger Section 7 consultation if “effects of the action” appear to be too remote or do not evince a causal connection. An affected agency could more readily conclude that its actions are “not likely to adversely affect” endangered species or their habitat, thus avoiding the necessity of Section 7 consultation. This change also permits the acting agency to exclude from its consideration of effects those impacts which are attributable to non-federal activities, even when associated with a federal project.

B) Commitment to Mitigation

Another amendment by the FWS is viewed as weakening the former requirement that an agency’s proposal to minimize the adverse effects of its actions must be certain to occur. While requiring that consideration be given by FWS to such “beneficial actions,” the revised regulations do not require “any additional demonstration of binding plans.”

C) Ongoing actions part of the baseline

The revisions also conclude that ongoing, mandatory agency actions are part of the “environmental baseline,” thereby excluding such projects from the effects analysis for new federal agency actions which are subject to Section 7 consultations. This proposal received criticism that it will excuse from analysis potentially harmful, ongoing actions or slightly modified actions, contrary to the ESA’s overarching goals and the requirement of Section 7 consultation on potentially harmful federal “actions.” The FWS responds that this amendment comports with case law (e.g., an existing dam’s operations are mandatory and are therefore appropriately considered to be part of the baseline condition).

D) Miscellaneous changes

Other significant revisions include a requirement that destruction or adverse modification of critical habitat be determined by looking at the entirety of affected habitat, i.e., “as a whole,” and not segments thereof; that re-initiation of Section 7 consultation need not be required for recent land management plans (created under FLPMA for energy development projects) upon a new listing of species or designation of critical habitat, and that the ESA cannot be read to require an assessment of the “tipping point” beyond which the species cannot recover from any additional adverse effect as part of its Section 7 consultation (i.e., rejecting the notion of “baseline jeopardy.”)

CONCLUSION

These revisions are an outgrowth of the current administration’s efforts to streamline and deregulate but also contain changes that have been long under consideration at Interior and which are supported by past practice and court decisions. The real test of their validity will occur through the exercise of discretion by administrators in their application and when challenged in the courts. Ultimately, of course, they will be measured against the Act itself, whose language, purpose and effect can be modified only by Congress.

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FWS Rejects Petitions to List Yellowstone Bison, But Other Listing and Critical Habitat Designations May be Warranted outdoorwire 09/14/19 12:34 AM
On August 6, 2019, the U.S. Fish and Wildlife Service (FWS) published a 90-day finding that listing the Yellowstone Park bison (Bison bison bison) under the Endangered Species Act is not warranted. FWS also found that listing the Mojave poppy bee (Perdita meconis) and revising the critical habitat designation for the endangered Mount Graham red squirrel (Tamiasciurus hudsonicus grahamensis) may be warranted.

According to FWS, the Yellowstone bison, a subset of Plains bison in and around Yellowstone National Park, are the oldest and largest wild population of Plains bison remaining. They comprise the last bison herd in the United States descending from a continuously wild herd.

The 90-day finding on the Yellowstone bison follows multiple petitions to protect Yellowstone bison as an endangered or threatened distinct population segment. In January 2016, FWS published a 90-day finding that listing was not warranted. In response, environmental groups Buffalo Field Campaign, Friends of Animals, and Western Watershed Project filed a lawsuit alleging that the 90-day finding violated the federal Endangered Species Act and Administrative Procedure Act. In January 2018, the District Court for the District of Columbia ordered FWS to issue a new 90-day finding, concluding that FWS had improperly applied a heightened evidentiary standard by ignoring scientific evidence in support of the petition without explaining why reliance on that evidence would be unreasonable. The Court explained that the correct standard for a 90-day finding is whether a reasonable person could choose to agree with the scientific studies in support of the petition. Buffalo Field Campaign v. Zinke, 289 F. Supp. 3d 103, 109-112 (D.D.C. 2018). The same environmental petitioners brought a second case in May 2019, challenging FWS’ delay in making a “proper” 90-day finding on the petition.

In its most recent 90-day finding on the Yellowstone bison, FWS acknowledged that the petitions identified several “threats” related to curtailment of the species’ range, such as commercial overutilization and disease. In particular, Yellowstone bison that migrate beyond the borders of Yellowstone National Park are culled, hunted, quarantined, or hazed pursuant to the Interagency Bison Management Plan (IBMP), which was adopted in 2000 by federal and state agencies and Native American tribes to prevent the transmission of brucellosis from bison to livestock. However, FWS concluded that these conditions do not negatively affect the species because the Yellowstone bison population has increased above historical levels (from an estimated 1,000 to 5,500 individuals) and is reaching the carrying capacity of Yellowstone National Park. FWS also concluded that the petitions failed to provide substantial evidence that climate change will negatively affect Yellowstone bison within the next 75 years, noting that historical range of Plains bison, from southwestern Canada to northern Mexico, evidences their ability to survive in diverse climates.

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Endangered Species Act Rulemakings Face Immediate Challenge outdoorwire 09/14/19 12:29 AM
On August 27, 2019, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the “Services”) published final rules amending three important parts of the federal regulations that implement the Endangered Species Act (16 U.S.C. §§ 1531 et seq.). The amended rules, which will take effect on September 26:

Eliminate the automatic extension of protections to threatened (as opposed to endangered) species;
Revise the provisions for designating critical habitat and listing and de-listing species under ESA Section 4; and
Revise the procedures for interagency consultation under ESA Section 7.

Environmental advocacy groups have decried the new regulations as undermining protections for imperiled species, and a coalition that includes Center for Biological Diversity, Sierra Club, Defenders of Wildlife and the NRDC, among others, have already filed suit in federal court in the Northern District of California to block the rules. The attorneys general for California and Massachusetts have indicated they also plan to challenge the rulemakings.

While the amendments are undeniably controversial and, in some cases, significant, their real impact will depend in large measure on how current and future administrations implement the new rules.

Rescission of the Blanket 4(d) Rule

The USFWS revised its prior “blanket” rule, issued under ESA Section 4(d), which extended the “take” prohibition to all threatened wildlife species by default and most other protections that apply to endangered species under ESA Section 9. In the future, those protections will apply to species that USFWS lists as threatened only to the extent the USFWS makes them applicable through a species-specific rulemaking. The change applies to species listed after the rulemaking takes effect and does not affect protections for species already listed as threatened. The NMFS already follows a similar approach for the species it regulates.

Amendments to Listing and Critical Habitat Rules

The Services jointly revised the regulations under which they decide to list or de-list species and designate critical habitat for listed species under ESA Section 4. Among other changes of note, the amended rules include a new definition of “foreseeable future” that could limit the designation of species as threatened based on long-term predictions of climate change impacts. Under the ESA, a threatened species is “any species which is likely to become an endangered species within the foreseeable future.” Under the new definition, the 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 change follows criticism of the Services’ recent listing of several species based on projections that their habitat – especially sea ice – would be greatly reduced by global warming over periods of 50 years or more.

The changes to the critical habitat rules include a new requirement that areas currently unoccupied by listed species be considered for designation as critical habitat only after occupied areas have been considered and deemed inadequate to ensure the species’ conservation, and only if there is “reasonable certainty” that the area will contribute to the species’ conservation. The Services cited the Supreme Court’s recent opinion in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), as the impetus for this change.

The amendments also remove language from the rules that required the Services to make listing decisions “without reference to possible economic or other impacts of such determination.” The purpose of the change is unclear, since the Services have acknowledged that the ESA itself prohibits consideration of economic factors in listing decisions.

Changes to Section 7 Consultation Regulations

Revisions to the Section 7 consultation regulations include “clarifying” changes to the definition of “effects of the action,” technical revisions to the procedures for formal and informal consultation, and a new “expedited consultation” process for actions with minimal or predictable adverse effects on listed species.

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Is the U.S. Endangered Species Act Itself Now Threatened or Endangered? outdoorwire 09/14/19 12:16 AM
On August 12, 2019, the U.S. Department of the Interior (DOI) unveiled three final rulemakings that will have a significant impact on the future implementation of certain portions of the Endangered Species Act (ESA). According to DOI, the new regulations are “designed to increase transparency and effectiveness and bring the administration of the [ESA] into the 21st century.” On the other hand, numerous environmental advocacy groups voiced swift and strong opposition to what they commonly see as “dramatic rollbacks” that will “weaken the critical and popular environmental law.” And, it appears that the final rules still face an uphill climb as Democrats in Congress, such as U.S. Senator Tom Udall (D-N.M.), vowed to “block this dangerous rollback” and “consider stopping these regulations by any means.”

The three new regulations primarily affect Section 4 and Section 7 of the ESA. In general, Section 4 addresses adding and delisting threatened and endangered species and designating critical habitat, and Section 7 addresses interagency consultation. All three regulations will become effective thirty (30) days after publication in the Federal Register, which is expected imminently.

One of the new regulations modifies the authority of the U.S. Fish and Wildlife Service (FWS) to provide the same protections for threatened species as for endangered species. Known as the “blanket rule” under Section 4(d) of the ESA, FWS could, by default, extend to threatened species most of the prohibitions for activities involving and affecting endangered species. For species already listed as threatened, Section 4(d) remains in place. Under the new regulation, however, FWS will now have to determine what protections are appropriate for species added to or reclassified on the threatened species list without the option of simply defaulting to those protections specific to endangered species. According to FWS, this regulation “align[s] its practice with NOAA Fisheries so the two agencies are consistent in their application” of Section 4(d).

A second regulation also changes how Section 4 will be implemented moving forward by revising procedures and criteria for listing or removing species from the endangered and threatened lists as well as designating critical habitat. For example, with respect to listing determinations, the new regulation removes the phrase “without reference to possible economic or other impacts of such determination,” so that listing determinations will now be made solely on the basis of the best scientific and commercial data available. The new regulation also provides that the same five factors that are considered for listing or reclassifying a species as threatened or endangered must also now be considered for delisting a species. In addition, the new regulation revises the definition of, and heightens the standard for, the “foreseeable future” evidentiary factor that FWS may rely on when deciding whether or not to list, delist or reclassify a species. The new definition provides, in part, that the term foreseeable future “extends only so far into the future as [FWS] can reasonably determine that both the future threats and the species’ responses to those threats are likely.” The proposed rule used the word “probable” instead of “likely”; and FWS has further clarified that, here, “likely” means “more likely than not.” This new regulation also imposes a heightened standard for unoccupied areas to be designated as critical habitat. Before the new regulation, an unoccupied area had to be essential to the conservation of a species to be designated critical habitat. Once the new regulation goes into effect, at the time of designation as critical habitat an unoccupied area must contain one or more “physical or biological features” essential to the conservation of the listed species. This rule change is in direct response to the ongoing dusky gopher frog litigation, where the U.S. Supreme Court recently held in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service that an area must be habitat before such area could be “critical habitat,” regardless of being occupied or unoccupied. In Weyerhaeuser, the Supreme Court ultimately remanded to the U.S. Court of Appeals for the Fifth Circuit to further interpret the term “habitat.”

The third new regulation revises requirements related to interagency consultation under Section 7. In particular, the new regulation codifies alternative consultation mechanisms that agencies may now utilize and establishes a 60-day deadline for informal consultations. According to the FWS in the new rule, “[t]he intent of the 60-day . . . deadline is to increase regulatory certainty and timeliness for Federal agencies and applicants.” Lastly, the new regulation revises the definitions for the following factors that agencies consider as part of the interagency consultation process: “destruction or adverse modification,” “effects of the action” and “environmental baseline.”

So, is the EAS now threatened or endangered? While many procedures will change under these new rules, the underlying and stated goals of the ESA have not been changed. That said, while some of the procedural changes will provide for more transparency and efficiency, others may arguably heighten standards for imposing the ESA in the first place. Taken together though, the new rules further clarify a number of definitions in the ESA and directly respond to numerous recent judicial decisions. One thing that is clear, however, is that these new rules are likely to be challenged in court, and soon.

Lexology
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FWS Decides Not to List Joshua Tree and Other Species Under the ESA outdoorwire 09/13/19 11:56 PM
On August 15, 2019, the U.S. Fish and Wildlife Service (FWS) published a series of notices in the Federal Register announcing the agency’s 12-month and 90-day findings on petitions to list a number of species under the Endangered Species Act (ESA). Most prominently, the FWS declined to list two species commonly known as the Joshua tree (Yucca brevifolia and Yucca jaegeriana). These decisions came on the heels of the agency’s publication of proposals to, among other things, change the way these types of species listing decisions are made. (Our earlier reporting on that topic is here.)

The FWS’ decision not to list the Joshua tree occurred under the current ESA regulations, not the newly proposed ones. An environmental non-profit organization, Wild Earth Guardians, petitioned the FWS in September 2015 to list the Joshua tree as threatened and, if applicable, designate critical habitat for the species. FWS conducted an initial 90-day review of the petition, determining that the petition presented substantial scientific or commercial information indicating that listing might be warranted. FWS then undertook a more detailed 12-month review of the status of the Joshua tree.

In its 12-month finding following its species status review, the FWS noted that the primary stressors to the two species of Joshua tree include wildfire, invasive plants, the effects of climate change, and habitat loss. The FWS concluded that while these stressors are affecting individual Joshua trees, there was no evidence the trees are experiencing the stressors at a population-level or species-level scale. The FWS concluded that the Joshua tree is not in danger of extinction or likely to become so within the foreseeable future, citing, among other things, (1) the long-lived nature of the species, (2) the large ranges and distributions of the species, and (3) the fact that Joshua trees mostly occur on Federal lands.

Concurrently with its 12-month finding on the Joshua tree, FWS also made negative 12-month findings on petitions to list three species of mussels (Cyclonaias aurea, Cyclonaias houstonensis, and Alasmidonta varicosa), the tricolored blackbird (Agelaius tricolor), the yellow-banded bumble bee (Bombus terricola), the Arapahoe snowfly (Arsapnia arapahoe), and the seaside alder (Alnus maritima). In a separate notice, the FWS also made positive 90-day findings on petitions to list the lake sturgeon (Acipenser fulvescens) as endangered or threatened and to reclassify the Gila topminnow (Poeciliopsis occidentalis occidentalis) from endangered to threatened, along with a negative 90-day finding on a petition to list the Siskiyou Mountains salamander (Plethodon stormi). FWS will now conduct additional review on the lake sturgeon and the Gila topminnow, and has asked the public to provide any new scientific or commercial data or other information concerning the statuses of, or threats to, those species.

Source: Lexology
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Trump Administration Finalizes Broad Changes to Endangered Species Act Regulations outdoorwire 09/13/19 11:46 PM
On August 12, 2019 the U.S. Fish Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) released pre-publication versions of three final rules that are expected to significantly affect the applicability and implementation of the Endangered Species Act (“ESA”). These regulations relate to the process and standards for listing species and designating critical habitat, the scope of protections for threatened species, and the process for consultations with federal agencies under Section 7.

Overall, the final rules appear to be consistent with the proposals that the Services released last summer (summarized here). However, there are several key areas where the final rules differ:

Directly in response to the Supreme Court’s holding in Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018), requiring unoccupied critical habitat to have at least one or more physical or biological features that have been determined to be essential to the conservation of the species.
Revising the proposed definition of “foreseeable future,” to clarify that foreseeable future determinations for threatened species listings are limited to both actual (not potential) threats and a species’ response to those threats that are “more likely than not” to occur.
While, as proposed, adopting a definition for environmental baseline, providing additional clarity by adding a third sentence to highlight that the effects of ongoing actions over which the action agency does not have discretion should be considered part of the environmental baseline.
Adopting a 60-day timeline for informal consultations, with an additional 60 days available if an extension is needed.

The rules have been submitted to the Federal Register for publication and will become effective thirty days after being published.

In addition to implementing the Trump Administration’s general deregulatory goals and Executive Order 13777, several of these final changes appear directly responsive to negative court precedent that the Services indicate improperly have extended the ESA beyond its intended scope, while other changes are intended to rollback expansions that were implemented by the Obama Administration. Challenges to the final rules are imminent, with the States of California and Massachusetts and numerous environmental groups already indicating a plan to file once the rules are published in the Federal Register.

Source: Lexology
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California Adopts Emergency Regulation to Protect Outdoor Workers From Wildfire Smoke outdoorwire 09/13/19 11:35 PM
We Didn’t Start the Fire . . . . But Your Employees Might Breathe the Smoke

Last year was the most destructive fire season in California’s history. Over 7,600 wildfires burned nearly two million acres. As a result, on July 18, the California Department of Industrial Relations (DIR) Occupational Safety Health Standards Board adopted an emergency regulation to protect workers from hazards associated with wildfire smoke. The regulation is now in effect, following its approval on July 29, 2019, by the Office of Administrative Law.

The emergency regulation will be effective for one year, and applies where the current Air Quality Index (AQI) for airborne particulate matter (PM) 2.5 is 151 or greater (the AQI scale is from 0 to 500, and a 151 AQI is considered “unhealthy”), or where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

The regulation specifically exempts worksites that are indoors and where the air is filtered by mechanical ventilation. It also exempts outdoor worksites where the employer can show the AQI level does not exceed 151, or where the AQI level is 151 or greater for one hour or less during a shift. Firefighters are also exempt from this regulation.

California employers must determine employee exposure to PM 2.5 for worksites covered by this section before each shift and periodically thereafter by:

Checking state and government websites to determine the current AQI for PM;
Obtaining AQI forecasts and the current AQI for PM directly from the Environmental Protection Agency or state or local agencies; or
Measuring PM 2.5 levels at the worksite and converting the PM 2.5 levels to the corresponding AQI.

After determining employee exposure, employers are responsible for communicating to affected employees the current AQI level for PM 2.5 and the protective measures available to employees to reduce their wildfire smoke exposure. Employers must also provide training or relevant information about smoke exposure to affected employees. If an employer discovers the AQI is above 151, it must implement controls to reduce employee exposure. This includes, but is not limited to, providing respiratory protection or administrative controls, including relocating work to a location where the current AQI for PM 2.5 is lower than 151, changing work schedules, reducing work intensity, or providing additional rest breaks.

Though well intentioned, the regulation creates significant burdens on California employers. The regulation appears to require employers to anticipate when their employees may be exposed to wildfire smoke. But most employers do not have this expertise, and the unpredictability of wildfires and the smoke they produce makes compliance with this regulation challenging. As such, to best ensure compliance, employers who have employees working at worksites that are not exempt from this regulation should consider designating a member of management to visit www.airnow.gov (or another federal or state website that reports AQI levels daily) to ascertain the AQI level in the area around their outdoor worksites before employees perform work each day. Employers may wish to record that they visited the website and the corresponding AQI level. If the AQI level is above 151, the employer must then communicate it to employees and provide the necessary controls to limit or reduce employee exposure.

Source: Lexology
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Animal Activist Group Loses “Right to Wilderness” Lawsuit outdoorwire 09/13/19 11:27 PM
If you thought animal and environmental activists had already pushed the envelope far enough in the world of federal court litigation, think again.

This week, an Oregon federal judge ruled that a group of plaintiffs – made up of animal and environmental activist organizations and individuals – do not have a constitutional “right to wilderness” and dismissed with prejudice their lawsuit which sought to force the federal government to cease policies that contributed to climate change that, in turn, harmed plaintiffs’ enjoyment of nature and wildlife. ALDF et al. v. United States, (6:18-cv-01860-MC)(D. Oregon). Plaintiffs, comprised of frequent-flyer animal rights group, Animal Legal Defense Fund (ALDF), Seeding Sovereignty, an organization that works to “shift social and environmental paradigms by dismantling colonial institutions and replacing them with Indigenous practices created in synchronicity with the land,” and several individuals, including an 11-year old child (whose mother has worked for ALDF as well as the Nonhuman Rights Project and Farm Sanctuary), had sued the federal government in Oregon. Their sweeping complaint – which blamed climate change for closing hiking trails, forcing one to wear mosquito repellant with “severe chemicals,” cancelling swim team practice due to an increase in Blue-algal bloom, and making the waves in the ocean too big to go surfing, among other things. (Interestingly enough, Plaintiffs’ First Amended Complaint dropped the amorphous group “Future Generations” as a plaintiff – presumably after concluding that a category of plaintiffs that included all future people living on the planet did not pass the smell test).

Plaintiffs’ core allegation was that the United States government, through its officials, has enacted national policies that promote, subsidize and develop carbon-intensive industries – such as fossil fuel extraction, animal agriculture, and large-scale commercial logging – that contribute to climate change and expose Plaintiffs to dangerous conditions on federal lands. Plaintiffs sought an injunction compelling the government to, among other things, protect Plaintiffs’ “constitutional right to wilderness” by ordering the government to implement a “national remedial plan to mitigate climate change impacts.”

Plaintiffs’ First Amended Complaint gives poignant examples of their injuries – all attributed to climate change –and the government policies that exacerbate or fail to reverse it. One ALDF member, who left her job to “live among the wilderness of the Shoshone National Forest” in Cody, Wyoming, was alleged to have a “deep, emotional connection” with the wildlife surrounding that is impaired by her inability to return to hiking trails that have been closed due to “wildfire, drought, and tree death from beetle bark infestations.” Amend. Compl. ¶ 6. ALDF also claimed that its member was injured by climbing over trees downed from beetle kill and suffered mental distress from “watching her local forest die.” Id. ¶ 7.

The complaint continues:

“Leslie needs wild refuges where she can wander for days without seeing a person or even a trail; a place where the natural forces of the Earth are allowed to shape the land; where her eyes can come to rest in a limitless horizon; and where the ageless drama of life is played out by the animals that live there.” Id. ¶ 8. Climate change, as ALDF alleged, is destroying Leslie’s “opportunity for such necessary solitude” and is affecting her physical and mental health.” Id.

If Leslie’s plight wasn’t moving enough, the Complaint also detailed the injuries suffered by an 11-year old New Jersey resident, all attributable to climate change. The Complaint recounts the child’s surfing camp cancellation due to undertows and big waves that came from a passing hurricane and her need to wear harmful mosquito repellant to protect against a proliferation of insects from standing water brought on by storm surges. Plaintiffs characterize their injuries as “grave.”

Plaintiffs sweeping allegations demanded sweeping relief – including ordering the government to phase out fossil fuel extraction, animal agriculture, and commercial logging.

In ruling on the government’s Motion to Dismiss, the court – in a relatively brief decision – found that plaintiffs did not establish Article III standing and failed to state a claim for which relief could be granted. (7/31/2019 Opinion). In recognizing that the harm plaintiffs sought to address is a “diffuse, global phenomenon that affects every citizen of the world,” the court determined that plaintiffs’ general grievance about government was not individualized and they therefore lacked standing. “Even if this Court were to recognize a formal ‘right to wilderness,’ it would necessarily be a right held in common by all citizens, and the effects of climate change would be an abstract injury that all citizens share.” Id. at 6. The Court also determined that plaintiffs have failed to satisfy the “case or controversy” requirement of Article III and, as such, lacked jurisdiction over the matter. Id. at 7.

As to plaintiffs “right to wilderness” claim, the court echoed prior judicial decisions that have consistently found that there is no substantive due process right to “live free from government regulation.” Id. at 9. More importantly, the court rejected plaintiffs’ invitation for it to engage in “nothing short of revolutionary thinking” by recognizing “a right to wilderness” under the First, Fifth, Ninth and Fourteenth Amendments to the U.S. Constitution. In declining to recognize this new right, the court stated:

“Plaintiffs’ asserted fundamental ‘right to wilderness’ lacks foundation in this ‘Nation’s history, legal traditions, and practices’ and is unlike other fundamental rights the Supreme Court has enumerated.”

ALDF has indicated that they plan to appeal the decision to the Ninth Circuit.

Source: Lexology
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Access Roundtable Jump to new posts
Bipartisan Bill Could Increase Renewable Energy Development on Public Lands outdoorwire 09/13/19 11:09 PM
Renewable energy on public lands may receive a boost from legislation introduced by Reps. Paul Gosar (R-AZ) and Mike Levin (D-CA) on July 17.

The Public Land Renewable Energy Development Act (H.R. 3794), or PLREDA, seeks to balance renewable energy production with conservation and thereby promote increased development of wind, solar and geothermal energy on federal lands. The legislation’s key provisions include:

Revenue sharing: the legislation creates a revenue-sharing mechanism whereby affected stakeholders will benefit
States – 25% to the states where projects are located
Counties – 25% to the counties where projects are located
Sportsmen and Conservation – 25% into a fund for sportsmen and conservation purposes including increased access to outdoor recreation
Permitting – 15% to be used for finding permitting efficiencies and reducing current backlog
Deficit reduction – 10% for deficit reduction
Renewable energy goal: places a goal for the U.S. Department of the Interior (DOI) to permit 25 gigawatts by 2025
BLM personnel: requires the Bureau of Land Management to designate specific employees who will be responsible for monitoring, planning and permitting renewable energy projects
Renewable Energy Coordination Office: seeks to improve management of project permitting through the creation of a Renewable Energy Coordination Office
DOI fees discretion: allows DOI authority to reduce rental rates and capacity fees to encourage development

Congressional Support

The legislation has broad bipartisan support within the House of Representative including both the House Natural Resources Committee Chairman Raul Grijalva (AZ-3) and Ranking Member Rob Bishop (UT-1). At present, it has 15 Republican and 12 Democratic cosponsors.

Stakeholder Support

The legislation has broad support from a range of industry, environmental and conservation stakeholders including EDF Renewables, National Association of Counties, American Sportfishing Association, Theodore Roosevelt Conservation Partnership, Wilderness Society, the Natural Resources Defense Council and Solar Energy Industries Association.

Outlook

Currently, 40% of the total geothermal electric generating capacity and 5% of utility-scale wind and solar energy capacity comes from public lands. PLREDA seeks to change this dynamic and encourage local, state and federal governments as well as renewable energy companies to invest in renewable energy projects on federal lands. Unlike many energy issues in Washington, PLREDA enjoys bipartisan support and conveys a desire by both sides of the aisle to work toward a common goal of increasing renewable energy’s percentage in the country’s energy mix. This early, bipartisan support has caught the attention of the House Natural Resources Committee where the legislation is scheduled to have a hearing on Thursday, July 25 before the Energy and Minerals Resources Subcommittee. While the legislation will need to be marked up before it can proceed to a vote of the committee and sent to the full House of Representatives, the support of both Chairman Grijalva and Ranking Member Bishop bode well for the legislation’s potential passage.

Source: Lexology
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