Designation Without Conservation: The Conflict Between the Endangered Species Act and its Implementing Regulations
By E. Perry Hicks
INTRODUCTION
The United States Government is under a non-discretionary duty to designate critical habitat for species listed as endangered or threatened (“listed species”) under the Endangered Species Act (“ESA”). Presently, only nine percent of the 1179 listed species have critical habitat designations. Several recent court decisions indicate that the United States Government could be forced to designate critical habitat for the more than 1000 remaining listed species currently lacking critical habitat designations. The Fish and Wildlife Service (“FWS”) reports it has been “inundated with citizen lawsuits for [its] failure to [designate critical habitat].”
Litigation against the FWS for failure to designate critical habitat is premised on the importance of critical habitat to the protection of listed species. However, that premise may be flawed; critical habitat designations may not provide any protection to listed species. The theoretical protection of critical habitat is that destruction or adverse modification of such habitat in a federal action triggers consultation requirements with the FWS. Historically this protection has had enormous practical consequences, but subsequent to the Department of Interior's (“DOI”) 1986 amendments to regulations implementing section 7 of the ESA, it is doubtful that critical habitat has any practical value.
The amended DOI regulations possibly nullified critical habitat protections that Congress had left intact in the 1978 Endangered Species Act Amendments (“ESAA”). Under the 1986 DOI regulations, destruction or adverse modification of critical habitat triggers consultation only if the federal action also jeopardizes the survival of a listed species. This controversial “jeopardy” restriction on critical habitat limits the number of federal actions that trigger consultation requirements, by restricting consultation to situations that jeopardize listed species.
This note argues that the 1986 DOI critical habitat regulations violate the congressional intent of the ESA and are thus unlawful. This note also assesses whether the legislative history supports the conclusion that the DOI regulations are inconsistent with the ESA, and addresses the relevant legal doctrines and their application to challenges to the DOI regulations.
Section II frames the basic controversy between the ESAA and the 1986 DOI regulations. Section III discusses the protections provided for critical habitat under the ESA and agency regulations. Section IV inquires into congressional intent as expressed in the ESAA and compares it with the DOI's 1986 regulations. Section IV ultimately argues that the changes made in the 1986 regulations resulted in an interpretation of the regulations that is inconsistent with the 1978 Amendments. Section V reviews the status of the Chevron doctrine under which a challenge to the 1986 DOI regulations would be resolved. Section VI briefly addresses how the Chevron doctrine might be applied to the 1986 DOI regulations. Section VII presents two recent cases that advanced arguments regarding the invalidity of the 1986 regulations, but which were resolved on other grounds.
Ultimately, this note argues that critical habitat designation, one of the fundamental advancements and highest priorities of the ESA, is itself threatened and that, absent a direct challenge to the 1986 DOI regulations, the substantive protections of critical habitat will become extinct.
The United States Government is under a non-discretionary duty to designate critical habitat for species listed as endangered or threatened (“listed species”) under the Endangered Species Act (“ESA”). Presently, only nine percent of the 1179 listed species have critical habitat designations. Several recent court decisions indicate that the United States Government could be forced to designate critical habitat for the more than 1000 remaining listed species currently lacking critical habitat designations. The Fish and Wildlife Service (“FWS”) reports it has been “inundated with citizen lawsuits for [its] failure to [designate critical habitat].”
Litigation against the FWS for failure to designate critical habitat is premised on the importance of critical habitat to the protection of listed species. However, that premise may be flawed; critical habitat designations may not provide any protection to listed species. The theoretical protection of critical habitat is that destruction or adverse modification of such habitat in a federal action triggers consultation requirements with the FWS. Historically this protection has had enormous practical consequences, but subsequent to the Department of Interior's (“DOI”) 1986 amendments to regulations implementing section 7 of the ESA, it is doubtful that critical habitat has any practical value.
The amended DOI regulations possibly nullified critical habitat protections that Congress had left intact in the 1978 Endangered Species Act Amendments (“ESAA”). Under the 1986 DOI regulations, destruction or adverse modification of critical habitat triggers consultation only if the federal action also jeopardizes the survival of a listed species. This controversial “jeopardy” restriction on critical habitat limits the number of federal actions that trigger consultation requirements, by restricting consultation to situations that jeopardize listed species.
This note argues that the 1986 DOI critical habitat regulations violate the congressional intent of the ESA and are thus unlawful. This note also assesses whether the legislative history supports the conclusion that the DOI regulations are inconsistent with the ESA, and addresses the relevant legal doctrines and their application to challenges to the DOI regulations.
Section II frames the basic controversy between the ESAA and the 1986 DOI regulations. Section III discusses the protections provided for critical habitat under the ESA and agency regulations. Section IV inquires into congressional intent as expressed in the ESAA and compares it with the DOI's 1986 regulations. Section IV ultimately argues that the changes made in the 1986 regulations resulted in an interpretation of the regulations that is inconsistent with the 1978 Amendments. Section V reviews the status of the Chevron doctrine under which a challenge to the 1986 DOI regulations would be resolved. Section VI briefly addresses how the Chevron doctrine might be applied to the 1986 DOI regulations. Section VII presents two recent cases that advanced arguments regarding the invalidity of the 1986 regulations, but which were resolved on other grounds.
Ultimately, this note argues that critical habitat designation, one of the fundamental advancements and highest priorities of the ESA, is itself threatened and that, absent a direct challenge to the 1986 DOI regulations, the substantive protections of critical habitat will become extinct.
