Beyond delegated authority: the counterpart Endangered Species Act consultation regulations

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The endangered Santa Cruz long-toed salamander. Creative Commons

Originally Published As:
Title: Beyond Delegated Authority: The Counterpart Endangered Species Act Consultation Regulations
Author: Drew, Cynthia
Source: Environmental Law Review, June 1, 2007
Year published: 2007

Editor summary

Wildlife agencies entrusted by Congress to administer [ESA] have in two counterpart regulations revised interagency cooperation procedures in ways that appear to fall short of statutory requirements. Two federal district courts have now ruled in a contradictory manner on the validity of these regulations. Meanwhile the regulations held valid continue to be used to allow [agencies] to aggrandize their role in determining whether their projects will be “not likely to adversely affect” protected species—thus receiving no further scrutiny. In this Article, Cynthia A. Drew questions the ultimate legality of the wildlife agencies effecting such intraagency delegations of statutorily required interagency cooperation. Drew,s analysis is equally applicable to conditions within regulatory agencies at the current time through 2012. Via an analysis of both the challenged regulations and the results of judicial review after citizen plaintiffs sued to invalidate them, she argues that such intraagency delegation practices pass neither statutory nor constitutional muster.

“Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is for the Executive to administer the laws and for the courts to enforce them when enforcement is sought.” —Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)

Introduction (Beyond delegated authority: the counterpart Endangered Species Act consultation regulations)

Current State of Play: Conflicting Court Decisions Hold Analogous Endangered Species Regulatory Revisions (1) Invalid and (2) Valid

Environmental law is notorious for having some of the most complex legislation and regulations on the books. This complexity arises in part from the need to weave scientific concepts into careful drafting—a task that the U.S. Congress often has little appetite for completing (let alone the expertise to get the job done right). In environmental/natural resources law, Congress has often passed broad legislation, thus choosing to delegate the task of figuring out the details to an agency presumed to have the expertise to fill in the blanks correctly. It is well-settled that an agency promulgating regulations to fill in the gaps of complex areas of law in this framework has received the congressional imprimatur to get the task done—and that courts will defer to the professional judgment of agencies properly acting under the aegis of unambiguously delegated authority from Congress.[1]

This constitutional framework gives rise to the following interesting structural possibility: What happens when Congress is explicit as to the roles Agency Number One and Agency Number Two are to play vis-à-vis each other, but the agencies cooperate to promulgate regulations that interpret away such distinctions? In the name of such “interagency cooperation,” will courts allow Agency Number One—to which Congress specifically delegated a particularized task within its statutorily designated area of expertise—actively to off-load performance of such mandatory duty to inexpert Agency Number Two? And even if Agency Number One desires to allow Agency Number Two to take over Agency Number One’s area of expertise—and so does Agency Number Two, the better arguably to facilitate fulfilling Agency Number Two’s very different congressional taskings—will those facts make any difference at all to courts undertaking judicial review of such intraagency aggrandizement and encroachment?

Case law developments suggest different possible answers to this question. The hypothetical of Agency Number One’s intraagency delegation to Agency Number Two is no mere “what if” scenario. We find this precise phenomenon operating pursuant to recently promulgated counterpart regulations now being challenged in federal district courts.[2] The goal of this Article is to provide a roadmap and analysis to navigate the structural problems created by this sort of intraagency delegation in the specific context of the (1) 2003 Endangered Species Act (ESA)[3]/National Fire Plan (NFP) joint counterpart consultation regulations,[4] and (2) ESA/Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)[5] joint counterpart consultation regulations.[6]

The primary agencies promulgating these regulations were the two entrusted by Congress to administer [ESA]: (1) the U.S. Fish andWildlife Service (FWS); and (2) the National Marine Fisheries Service (NMFS).[7] The wildlife agencies purportedly promulgated [ESA]/FIFRA counterpart regulations, for example, to “enhance the efficiency and effectiveness”[8] of [ESA]’s interagency cooperation process.[9]

This Article questions the ultimate legality of the agencies themselves acting to affect intraagency delegations of ESAstatutorily required interagency cooperation processes for FIFRAand NFPregulatory actions. Through an analysis of first, the challenged regulations, and second, the contradictory results of judicial review after citizen plaintiffs sued to invalidate them, I argue that such intraagency delegation practices pass neither statutory nor constitutional muster.

Statutory Background and Context of Challenged Regulatory Revisions

The first federal district court (in Washington Toxics Coalition v. U.S. Fish & Wildlife Service)[10] to consider whether challenged provisions of ESA counterpart regulations (in that case, of 2004 ESA/FIFRA regulations) were consistent with the protective mandates of [ESA] concluded that some were not. That ruling is on appeal to the U.S. Court of Appeals for the Ninth Circuit.[11] A second federal district court (in Defenders of Wildlife v. Kempthorne)[12] confronting regulatory challenges to ESA counterpart regulations subsequently upheld challenged provisions of [ESA]/NFPregulations—even though these regulations raised the same §7 statutory construction issues as the Washington Toxics court had already decided when holding invalid analogous challenged portions of [ESA]/FIFRAcounterpart regulations.

Further, to complicate the legal landscape regarding issues of ESA statutory construction and regulatory validity, in January 2007, the U.S. Supreme Court took review of consolidated challenges to a Ninth Circuit decision, Defenders of Wildlife v. U.S. Environmental Protection Agency.[13] TheWashington Toxics court had relied upon Defenders as binding circuit court precedent when construing ESA§7 to require that portions of [ESA]/FIFRA counterpart consultation regulations be set aside because they exceeded the agency’s authority granted by the statute.[14] The Supreme Court took review of different legal issues. Nevertheless, besides the issues initially presented by the petitions,[15] the Court specifically requested that the parties also brief and argue an “additional question.”[16] In answering its own question, the Court might ultimately construe [ESA] in a manner affecting counterpart regulations challenges—especially the Washington Toxics decision now on appeal to the Ninth Circuit.

How, if at all, may these varying precedents be reconciled? Are the first and/or second ESA counterpart regulations ultra vires? How will the two district courts’ differing choices of the applicable standards for judicial review of agency action per Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.[17] affect the answer to that question and the authority of these precedents for future cases and/or for the wildlife agencies’ ESA program management? The Washington Toxics court resolved [ESA] §7 statutory construction issues before it partly at the Chevron [One] level. The Kempthorne court resolved the same ESA statutory construction issue at the Chevron [Two] level.

The Supreme Court’s specific request that the parties now before it also brief whether the agency action at issue in the Ninth Circuit’s Defenders case was arbitrary and capricious may ultimately presage the Court’s undertaking its own Chevron analysis of ESA §7.[18] Is the Supreme Court’s disposition of the Ninth Circuit Defenders case likely to affect the disposition of ESA counterpart regulations cases? Or might the Court more likely instead decide the Defenders issues presented—as the Court’s own additional question suggests it might—in a manner offering new instruction to lower courts regarding the appropriate limits of their Administrative Procedure Act (APA) remedial remand authority?[19]

Part I of this Article briefly discusses the existing ESA and FIFRA statutory structures regarding implementationof which—in promulgating the second ESA counterpart regulations—the wildlife agencies sought an “enhance[d] efficiency and effectiveness” in the regulations now invalidated by the Washington Toxics court.[20] Part II analyzes the scope and consequences of the recent changes wrought to long-standing ESA§7 interagency consultation processes[21] by both [ESA]/NFP and [ESA]/FIFRA counterpart regulations. Part III analyzes the disparate results of the first two federal district court challenges to the validity of these first two ESA counterpart regulations promulgated to “fine-tune”[22] or “streamline”[23] the only prior ESA §7 interagency consultation processes. Part IV analyzes the bedrock delegation and statutory construction issues that are the key to construing properly the mandates Congress gave both the wildlife agencies and the [agencies] in ESA §7.

Part V concludes—despite agency arguments and the Kempthorne district court’s statutory construction to the contrary—that portions of both sets of challenged ESA counterpart regulations impermissibly weaken required statutory protections. Moreover, the statutory authority on which the regulations are claimed to be based cannot support their promulgation without affecting an unauthorized intraagency delegation of mandates Congress explicitly gave only to the wildlife agencies. The regulations are therefore ultra vires. The portions held invalid by the Washington Toxics court should be formally rescinded. In promulgating them, executive agencies unconstitutionally exceeded “the bounds established by Congress.”[24]

Relevant Statutory Mandates

The wildlife agencies promulgated [ESA]/FIFRA counterpart regulations invalidated by the Washington Toxics court to reconcile intrinsically different statutory mandates. In FIFRA, Congress delegated U.S. Environmental Protection Agency (EPA) authority to implement its pesticide registration program responsibilities in a manner affording a range of agency discretion to balance both economic and environmental factors.[25] In [ESA], Congress authorized little such[26] agency discretion.[27] Ever since the Supreme Court’s watershed decision in Tennessee Valley Authority v. Hill (TVA),28 courts have construed challenged ESAprovisions strictly[28]—and protectively.[29] Because it affords such strong environmental protection,[30] [ESA] has aptly been characterized as the “pit bull” of environmental statutes. [31] Enhancing efficiency and effectiveness may in the abstract be a laudable program goal for federal agencies striving to implement statutory mandates. Nevertheless, the delegated flexibility that EPAmay have to achieve such a goal by balancing aspects of its FIFRA program responsibilities is likely to be significantly greater than any the Services have to do so by balancing aspects of their ESA program responsibilities.

Relevant General Requirements of [ESA]

The Supreme Court opined that [ESA] is “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”[32] It imposes duties upon both governmental and private parties, [33]including “substantial and continuing obligations on federal agencies.”[34] There are “no exemptions in ESA for federal agencies. . . .”[35]

In relevant part, in order to promote the recovery of species in danger of or threatened with extinction, Congress required all federal agencies, “in consultation and with the assistance of the Secretary Of the appropriate Service,”[36] to perform two duties:

  1. to “utilize their authorities in furtherance of the purposes of ESA by carrying out programs for the conservation of endangered species and threatened species”[37]; and
  2. to “[e]nsure that any action authorized, funded, or carried out by [each] agency . . . is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary. . . to be critical. . . .”[38]

Congress further mandated that after initiating required §7(a)(2) consultation, the action agency and the permit or license applicant “shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measure which would not violate subsection (a)(2). . . .”[39]

The statutorily required act of interagency consultation is thus the means established by Congress that all federal agencies must use[40] when acting to fulfill their “primary missions,”[41] to ensure that they also fulfill both of their substantive ESA §7 obligations[42]: (1) their §7(a)(1) mandatory duty to utilize their authorities for “conservation”[43] of protected species; and (2) their §7(a)(2) mandatory duty to avoid jeopardy[44] to the “continued existence” of protected species.[45] Although a federal agency may also be acting to fulfill concomitant responsibilities under another statute, courts have concluded that the agency must still comply with [ESA].[46] Courts have upheld agencies’ utilizing their authorities to further ESA purposes against even constitutional
claims.[47]

Relevant General Requirements of FIFRA

EPAadministers FIFRA’s comprehensive program regulating registration[48] and use of pesticides[49] throughout the country, even those used wholly intrastate.[50] EPAmust register a pesticide if, when considered with appropriate restrictions (and other conditions not relevant here), “it will perform its intended function without unreasonable adverse effects on the environment,” and, “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse effects on the environment.” [51] FIFRA defines “environment” to include “water, air, land, and all plants and Human race and other animals living therein, and the interrelationships that
exist among these.”[52]

In FIFRA, Congress defined “unreasonable adverse effects on the environment”—an EPAfinding of which could prevent registration[53]—as “any unreasonable risk to Human race or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.”[54]Congress explicitly defined both “protect health and the environment” and “protection of health and the environment” to mean “protection against any unreasonable adverse effects on the environment.” [55] Congress established the FIFRA program subject to continuing EPA regulatory oversight of registered pesticides.[56]

In FIFRA, Congress granted EPA[57] considerable discretionary authority over registered pesticides.[58] For example, although FIFRA generally prohibits commerce in unregistered pesticides, Congress delegated the EPAAdministrator discretion to permit continued sale and use of existing stocks of pesticides for which EPA has cancelled registrations provided “[s/]he determines that such sale or use is not inconsistent with” FIFRA’s purposes and “will not have unreasonable adverse effects on the environment.”[59] Congress granted the EPAAdministrator broad discretion to “exempt any Federal or State agency from any provision” of FIFRA if the Administrator determined “that emergency conditions exist which require such exemption.”[60] Congress also gave the Administrator the power to cancel a pesticide’s registration[61] if the pesticide is found generally to cause “unreasonable adverse effects on the environment.”[62]

Congress granted the Administrator the concomitant power to suspend a registration immediately if s/he determines that it is “necessary to prevent an imminent hazard” pending completion of the cancellation process.[63] Congress specifically established “unreasonable” hazards “to the survival” of protected species as a triggering criteria under FIFRA, explicitly defining “imminent hazard” as existing when either

  1. “the continued use of a pesticide during the time required for cancellation proceeding would be likely to result in unreasonable adverse effects on the environment,” or
  2. “will involve unreasonable hazard to the survival of [species] declared endangered or threatened by the Secretary pursuant to the Endangered Species Act of 1973.”[64]

Congress therefore specified that such environmental harm/species protection concerns may prove dispositive as to whether a pesticide may be registered for general or restricted use under FIFRA.66 Accordingly, the only pesticides that per FIFRA Congress allowed to be registered for general use are those that do not “generally cause unreasonable adverse effects on the environment.”[65] In FIFRA, Congress additionally required EPAto classify a pesticide for restricted use when “it may generally cause, without additional regulatory restrictions, unreasonable adverse effects to the environment.”[66]

Even the plain meaning of FIFRA’s statutory language establishing the mechanisms for balancing the risks and benefits of pesticide registration (the determination of which Congress has delegated to the EPAAdministrator) incorporates a significant measure of and weighting toward environmental factors. Certainly FIFRA does not exempt EPA from complying with all relevant ESA requirements when registering or reregistering pesticides.[67] To the contrary, in FIFRA Congress explicitly instructed EPA—in fulfilling particularized mandated responsibilities both to register and to cancel registration of pesticides—also to consider in its analysis underlying all such agency actions any “unreasonable hazard to the survival of [species] declared endangered or threatened” under [ESA].[68]

Comparative Process Analysis: Existing and Revised ESA §7 Consultation Procedures

Congress never used the term “counterpart regulations” in either [ESA]or FIFRA. The first ESAregulations promulgated in 1978, 50 C.F.R. §402.04, provided the initial regulatory reference to this term—as well as the initial notice that the Services might in future promulgate alternative consultation procedures.[69] The wildlife agencies have to date established counterpart regulations offering NFP and FIFRA [agencies] alternative ways of satisfying two statutorily required duties: (1) their ESA §7 procedural duty to consult with wildlife agencies that is also (2) the statutorily required means enabling [agencies] to fulfill their ESA §7 substantive duty to ensure no jeopardy to protected species.

The 2003 ESA/NFP[70] and the 2004 ESA/FIFRA[71] regulatory revisions were the first joint counterpart ESA §7 consultation regulations ever promulgated. According to the Preamble to the 1986 regulations (implementing ESA§7), counterpart regulations “must retain the overall degree of protection afforded listed species required” by [ESA] and the regulations.[72]

Charts A-D given in the Appendix graphically depict flow charts of ESA§7 existing and revised counterpart consultation procedures.[73] The revisions made by [ESA]/NFP and [ESA]/FIFRA counterpart regulations to the existing consultation procedures are analyzed immediately below. The contradictory results of recent judicial review resolving challenges to the counterpart revisions are analyzed in Part IV below.[74]

Statutorily Required Consultation Procedures

The ESA itself explicitly establishes extensive processes as a means to require sufficient action agency consultation with the expert wildlife agencies to ensure that the former satisfy their mandatory §7(a)(2) duty to avoid jeopardy to protected species. These statutorily required procedures must be met by every agency—and cannot constitutionally be revised by the wildlife agencies by promulgating new regulations.[75]

To “facilitate” compliance with ESA §7, Congress required “each Federal agency” to “request of the Secretary information whether any species which is listed or proposed to be listed may be present in the area of proposed construction action.”[76] If, “based on the best scientific and commercial data available,” the Secretary “advises” the action agency that such species “may be” present, the agency must conduct a biological assessment for the “purpose of identifying any endangered species or threatened species which is likely to be affected by the action.”[77]

If an action agency determines that a proposed action may adversely affect a listed species,[78] Congress required the agency to initiate formal consultation with the Secretary. [79] After such consultation, the wildlife agency must prepare and issue to the action agency a biological opinion (BO) explaining how the proposed action will affect the species or its habitat.[80] If the wildlife agency concludes that the agency’s proposed action will cause jeopardy to the species or destroy or adversely modify critical habitat, the wildlife agency must also establish any reasonable and prudent alternatives (RPAs) that it believes will avoid such consequences.[81]

If the wildlife agency concludes in the BO that the proposed agency action will not cause jeopardy to species or adversely modify critical habitat, or if the wildlife agency offers RPAs to avoid those consequences, the wildlife agency must give the action agency an incidental take statement (ITS) setting forth the “impact of such incidental taking on the species,” any RPAs the wildlife agency “considers necessary or appropriate to minimize such impact,” and any “terms and conditions” with which the agency must comply to implement the RPAs.[82]

In Bennett v. Spear,[83] the Supreme Court analyzed the legal significance of the BO generated by wildlife agencies during formal consultation, emphasizing that while the BO “theoretically serves an ‘advisory function,’ in reality it has a powerful coercive effect on the action agency”:

The statutory scheme . . . presupposes that the biological opinion will play a central role in the action agency’s decisionmaking process, and that it will typically be based on an administrative record that is fully adequate for the action agency’s decision insofar asESAissues are concerned. . . . [A] federal agency that chooses to deviate from the recommendations contained in a biological opinion bears the burden of “articulat[ing] in its administrative record its reasons for disagreeing with the conclusions of a biological opinion.” In the government’s experience, [agencies] very rarely choose to engage in conduct that the Service has concluded is likely to jeopardize the continued existence of a listed species.[84]

In reaching its conclusion that a BO had “direct and appreciable legal consequences,”[85] the Court reiterated that the action agency “must not only articulate its reasons for disagreement (which ordinarily requires species and habitat investigations that are not within the action agency’s expertise), but that it runs a substantial risk if its (inexpert) reasons turn out to be wrong.”[86] Thus, the action agency is “technically free to disregard the Biological Opinion and proceed with its proposed action,” but it does so “at its peril (and that of its employees), for ‘any person’who knowingly ‘takes’an endangered or threatened species is subject to substantial civil and criminal penalties, including imprisonment.”[87]

Wildlife Agencies’ Consultation Procedures for Making “Not Likely to Adversely Affect” Determination

1. General “Not Likely to Adversely Affect” Consultation Regulatory Procedures

Before the wildlife agencies adopted counterpart regulations, 50 C.F.R. §402.13-14 governed the obligations of an action agency making a not likely to adversely affect (NLAA) determination. Those sections prescribe the requirements of the general regulations for, respectively, informal and formal consultation (as depicted in Appendix on Charts A and B, and analyzed further below). Pursuant to 50 C.F.R. §402.13-14, an action agency’s initial determination that a proposed action was a major construction project triggered that agency’s obligation to consult with the expert wildlife agency. From that point, enough consultation must occur to enable the action agency to make either an NLAAor a likely to adversely affect (LAA) determination. If the latter, formal consultation is generally required.[88]

Whether proceeding initially in informal or in formal consultation processes, if in the course of its consultation with the wildlife agency the action agency determined, “with the written concurrence of the Service,” that its proposed action was “not likely to adversely affect” protected species, “the consultation process is terminated, and no further action is necessary.”[89] Therefore, the effect of making an NLAA determination is to foreclose further consideration that any protective measures would be required to avoid jeopardy to protected species. Pursuant to the general regulations, the final agency action for making NLAAecological determinations that insured the proposed agency action would avoid such jeopardy belongs to the expert wildlife agencies—not to the [agencies].

2. Revised Counterpart NLAA Consultation Regulatory Procedures

As depicted in Appendix, Chart C, [ESA]/FIFRA and [ESA]/NFP counterpart regulations alter significantly the general regulations’ requirements for both [agencies] and wildlife agencies involved in makingNLAAdeterminations. Because these counterpart regulatory revisions are similar for both ESA/FIFRAand ESA/NFPactions, for ease of reference, in this article I will hereafter discuss primarily [ESA]/FIFRA counterpart regulations.

The wildlife agencies’ stated rationale for “implement[ing]” [ESA]/NFP counterpart regulations was “to proactively reduce . . . anticipated delays and to increase the Service’s capability to focus on Federal actions requiring formal consultation by eliminating the [regulatory] requirement The Services to provide written concurrence for [NLAA] actions within the scope of these counterpart regulations.” [90] These revisions thus shift the bulk of—and responsibility for—the ecological analysis needed to determine that a proposed agency action would “not likely affect” protected species from the wildlife agencies to the [agencies]. Pursuant to these revisions, the [agencies] now take the final agency action in making NLAAecological determinations.

Before using the revised NLAA counterpart procedures, [agencies] must execute an alternative consultation agreement with wildlife agencies:

The alternative consultation process . . . will allow the Service to provide training, oversight, and monitoring to an Action Agency through an alternative consultation agreement (ACA) that enables the Action Agency to make an NLAA determination for a project implementing the NFP without informal consultation or written concurrence from the Service.[91]

In promulgating both ESA joint counterpart consultation regulations, the wildlife agencies eliminated their written concurrence on [agencies]’ NLAA determinations—that is still required for other NLAAdeterminations by the wildlife agencies’ own general consultation regulations. Instead the wildlife agencies have established ESA counterpart procedures for FIFRA and NFP matters that substitute overall programmatic training, oversight, and monitoring of action agency employees for the wildlife agencies’ fulfilling their own prior role as final arbiter of each individual NLAA decision.

3. Comparative Analysis of General and Revised Counterpart NLAA Consultation Regulatory Procedures

The primary deficiency of the revised NLAA procedures promulgated by both ESA counterpart regulations is their elimination of any consultative role for the expert wildlife agencies. Yet Congress explicitly commanded that the Secretary of the wildlife agencies must engage in “consulta-tion” with [agencies] to “[e]nsure” that both fulfill their ESA §7(a)(2) mandatory duties to avoid jeopardy to protected species.94Without any such consultation, efficient results in other federal programs may well be achieved, but at the cost of compliance with congressional ESA mandates. Such result could scarcely be squared with Congress’unambiguously expressed intent, as construed in TVA, “reveal[ing] an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species.”[92]

The wildlife agencies’ stated rationales in promulgating both sets of counterpart regulations do not demonstrate a wholehearted adherence to this congressional purpose and policy. But they do demonstrate how the wildlife agencies’ apparent desire for “faster reviews”[93] have helped drive [ESA]train pell-mell past the point at which the Services may be able to ensure that the result of such reviews also complies with ESA §7.

For example, in the preamble to [ESA]/NFP counterpart regulations, the wildlife agencies noted that “the concurrence process could cause delays.”[94] The wildlife agencies’answer to this problem in the counterpart regulations is to “permit a project to proceed following an Action Agency’s NLAA determination without an overlapping review by the Service, where the Service has provided specific training and oversight to achieve comparability between the Action Agency’s NLAA determination and the likely outcome of an overlapping review by the Service.”[95] But it is at best speculative to opine in advance what the likely outcome of an individual review that one does not undertake would show when all that one does do is oversee a program in which another takes all final agency actions on all individual reviews.[96]

A second notable deficiency concerning the revised NLAA procedures promulgated by both ESA counterpart regulations is signaled by the wildlife agencies’ notice, in the Preamble to [ESA]/FIFRA counterpart regulations, that the Alternative Consultation Agreement (ACA) establishing precisely how action agency EPAis to undertake on its own the NLAA determinations that are now the final agency actions is itself “not part” of the rule establishing the counterpart regulations.[97] Moreover, the ACA “will not constitute a rule subject to the notice and comment provisions of the Administrative Procedure Act, 5 U.S.C. 553.”[98] But what kind of shadow rulemaking is this? Why are the wildlife agencies properly promulgating a “rule” pursuant to the APA, but then sidelining the guts of it in a side agreement lacking the transparency and regularity of established APA procedural requirements?

Even a quick perusal of the terms of the ACA for [ESA]/FIFRA counterpart program only heightens such concerns.102 For example, §X.(A) of the ACAregarding termination specifies as criteria for terminating the agreement a reasonable belief that implementing the ACAwill not “satisfy relevant requirements” of either [ESA] or FIFRA or their implementing regulations.[99] Nevertheless, §X.(B) then specifies that—apparently even in such cases where the statutes the agencies are entrusted by Congress to administer may be violated—no termination “shall be effective unless and until 21-day advance written notice has been provided to the Secretary(s) and the Administrator,” and such notice “shall not be submitted until at least 21 days after the issue has been submitted to the Assistant Secretary(s) and Assistant Administrator for resolution.”[100]

This is indeed a triumph of bureaucracy—and a far cry from the TVA Supreme Court’s quoting Congress’ rationale for espousing a policy of “institutionalized caution” in ESA, i.e., to preserve the “value” of humanity’s “genetic heritage [which] is, quite literally, incalculable.”[101] Unlike a “real” rule properly promulgated pursuant to 5 U.S.C. §553, the ACA contains no beginning “Authority” section. What could be the source of authority that the Secretary(s) and Administrator claim authorizes their negating their duty to check even statutory violations until a contractual 42-day dispute resolution period expires?

Other terms of theACAdemonstrate in other ways the extent of action agency EPA’s encroachment on what would otherwise be encompassed within the wildlife agencies’ §7-mandated consultative function. For example, §V.(E) of the ACA—entitled “Procedures EPAwill use to inform the Services of its NLAAdeterminations”—provided that EPA will only make available to the wildlife agencies notice of “all NLAAdeterminations it has made with respect to pesticides” at the same time at and in the same manner in which it notifies the public of them, i.e., by posting notices of NLAA actions on its website.[102] Further, in the ACA the wildlife agencies also agree that even if the ACA is terminated, all prior action agencyNLAAdecisions still stand.[103] What will the wildlife and [agencies] do pursuant to this provision when, as has now occurred, a court rules their promulgation
of the counterpartNLAAregulatory revisions invalid
and sets the regulations aside as contrary to law?108

Wildlife Agencies’ Consultation Procedures for Formal Consultation After Making “May Affect” or LAA Determinations

1. General Formal Consultation Regulatory Procedures

As outlined above in Part III.A., the extensive statutory/regulatory process of formal consultation (depicted in Appendix, Chart B) is triggered by the action agency’s making a finding that its proposed project either “may affect” or is “likely to adversely affect” a protected species. In [ESA]/FIFRA regulations, the wildlife agencies promulgated optional counterpart revisions for formal consultation analyzed below (and depicted on Chart D). The wildlife agencies made no such changes in [ESA]/NFP regulations.

At a minimum, an action agency’s may-affect determination triggers its obligation to prepare a biological assessment. [104] If that document shows that the action agency’s proposed project is “likely to adversely affect” a protected species, the action agency must undertake the statutorily required process described above in Part III.A.[105] This process ultimately ends with the wildlife agency’s issuing a BO—the strongly operative force of which the Supreme Court emphasized in Bennett[106]—and, as required, also reasonable and prudent alternatives and an incidental take statement. Formal consultation is a highly labor-intensive activity for the wildlife agency whose final agency actions at the end of a complex and lengthy process are the last word in all disputed matters—as, for example, in delineating the extent of mitigating factors that will be required of the action agency.[107]

2. Revised Counterpart Formal Consultation Regulatory Procedures
As depicted in Appendix, Chart D, [ESA]/FIFRAcounterpart regulations alter significantly the general regulations’ approach to formal consultation. These revisions potentially shift the majority, if not almost all, of the ecological analysis from the wildlife agencies to the [agencies].[108] Unlike the revised NLAAcounterpart procedures analyzed above in Part III.B., however, they ultimately do maintain the final agency action as the wildlife agency’s.[109]

In promulgating the revised counterpart procedures for formal consultation, the wildlife agencies explicitly relied on action agency EPA’s “expertise in assessing the ecological effects of pesticide products.”[110] The revised procedures therefore permit action agency EPA to submit its own NLAAeffects determinations to the wildlife agency for approval—along with draft conclusions as to whether a proposed FIFRA pesticide registration is “likely to jeopardize” a protected species, and descriptions of the anticipated effects of any incidental takings, as well as of any reasonable and prudent measures EPA could adopt to mitigate the effects of its proposed actions on protected species.[111]

Pursuant to the revised counterpart procedures for formal consultation, the wildlife agencies also for the first time granted EPAthe authority to use its own partial BO in making a finding under ESA §7(d) as to whether the proposed FIFRA action “constitutes an irreversible and irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives. . . .”[112] Under the general consultation regulations, only the expert wildlife agencies prepare a BO.[113]

3. Comparative Analysis of General and Revised

Counterpart Formal Consultation Regulatory Procedures Because [ESA]/FIFRA regulatory revisions to the existing formal consultation are optional, environmental plaintiffs mounting a facial challenge to them would likely not succeed. In such procedural posture, i.e., before the revised regulatory “option” were exercised, plaintiffs would appear to be asking the court for an advisory opinion: thus running afoul of the constitutional justiciability “cases and controversies” mandate.[114]

But if plaintiffs sued wildlife agencies alleging illegal effects of the action agency’s pesticide registrations on protected species after EPA had actually used the counterpart formal consultation procedures purportedly to fulfill its ESA §7(a)(2) mandatory duty to avoid jeopardy, a district court would likely require that challenge to be litigated on the administrative record of the particular agency action in which the revised procedures were used.

First, applying Chevron, a district court would likely rule that it was permissible for the wildlife agencies to have allowed EPA a more active role in completing the ecological analysis underpinning the ultimate recommendations contained in the BO because the final agency action to accept or reject these action agency recommendations remains with the wildlife agency. Thus, contrary to the revised counterpart regulatory framework for NLAA actions (analyzed in Part III.B. above), the wildlife agencies did not attempt in the revised counterpart formal consultation procedures wholly to absent themselves from the consultative process in making final ecological determinations on the effects of individual proposed agency actions.

A district court would likely decide pending challenges to any such action agency use of the revised counterpart optional procedures for formal consultation at the Chevron StepTwolevel. That is, as occurs now in actions challenging the Service’s issuance of BOs under the general formal consultation regulations, the court would invalidate the wildlife agency’s use of these procedures if the agency’s action in a particular instance were arbitrary and capricious.[115]

On this score, the counterpart formal consultation procedures do provide an additional possible challenge available for environmental plaintiffs bringing a future suit disputing wildlife agencies’ use of them. For, in establishing these revised procedures, the wildlife agencies explicitly relied on EPA’s “expertise in assessing the ecological effects of pesticide products.”[116] Yet it is likely a dubious assumption that such particularized action agency expertise regarding pesticide effects is necessarily equal to the wildlife agencies’ own expertise in assessing potentially overall destructive effects of [agencies]’ proposed actions on endangered and threatened species.

Future plaintiffs may thus be able to establish a disconnect between how the wildlife agencies’ and action agency EPA’s ecological expertise was different in kind and so on specific final agency actions did in fact lead to decisions less likely to avoid jeopardy to protected species. If so, a district court reviewing particular challenged actions would likely invalidate any in which the wildlife agencies had allowed use of the revised counterpart formal consultation procedures in a decision that produced results less compliant with [ESA] than use of the existing formal consultation procedures would have.

Wildlife Agencies’ Emergency Regulatory Procedures

1. General Emergency Consultation Regulatory Procedures

In [ESA]/FIFRA regulations, the wildlife agencies promulgated optional revisions for consultation during emergencies.[117] The wildlife agencies made no such changes in [ESA]/NFP regulations.

Pursuant to 50 C.F.R. §402.05, emergencies are defined as “acts of God, disasters, casualties, national defense or security emergencies, etc.”[118] Where such circumstances “mandate the need to consult in an expedited manner,” a Service director may conduct informal consultation that s/he determines “consistent with the requirements” of ESA §7(a)-(d).[119] Nevertheless, formal consultation “shall be initiated as soon as practicable after the emergency is brought under control.”[120] Moreover, even in time of such emergency, the general regulations maintain the careful “non-emergency” delineation of the very disparate roles that Congress prescribed for the action agency and the expert wildlife agency, i.e.,

[t]he Federal Agency shall submit information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered and threatened species and their habitats. The Service will evaluate such information and issue a biological opinion and recommendations given during the emergency consultation.[121]

2. Revised Counterpart Emergency Consultation Regulatory Procedures

The ESA/FIFRA counterpart regulations alter significantly the general regulations’ approach to emergencies through one principal change. They permit EPAto “choose” to apply [ESA] emergency consultation procedures also to FIFRA §18 actions.[122]

FIFRAemergency conditions are defined in FIFRA’s implementing regulations for §18 as including a much broader range of activities potentially qualifying as emergency conditions than the scope of [ESA]’s regulatory definition of emergencies. For FIFRA pesticide registration purposes, emergency conditions means “an urgent, non-routine situation that requires the use of a pesticide(s) and shall be deemed to exist when” a combination of several itemized factors is present.[123] These factors could include either that the pesticide use will “present significant risks to threatened or endangered species, beneficial organisms, or the environment” [124]—or that the pesticide use will “cause significant economic loss due to: (A) An outbreak or an expected outbreak of a pest. . . .”[125]

3. Comparative Analysis of General and Revised Counterpart Emergency Consultation Regulatory Procedures

The “etc.” that concludes [ESA] definition of emergency would likely be construed as imparting some flexibility to the otherwise specified terms “acts of God, disasters, casualties, national defense or security emergencies, etc.”[126] Yet clearly the potential exists for a significant disconnect between the more narrow definition of ESA’s emergency and the broader one of FIFRA’s emergency conditions. Nevertheless, as similarly discussed above regarding the revised counterpart procedures for formal consultation, because [ESA]/FIFRA regulatory revisions to emergency consultation are optional, environmental plaintiffs mounting a facial challenge to them would likely not succeed.[127] In such procedural posture, i.e., before the revised regulatory option were exercised, plaintiffs would also appear to be asking the court for an advisory opinion: thus running afoul of the constitutional justiciability “cases and controversies” mandate.[128]

But if plaintiffs sued wildlife agencies alleging illegal effects of the action agency’s pesticide registrations on protected species after EPA had actually used the counterpart emergency consultation procedures purportedly to fulfill its ESA §7(a)(2) mandatory duty to avoid jeopardy, a district court would also likely require that challenge to be litigated on the administrative record of the particular agency action in which the revised procedures were used. A district court would also then likely decide pending challenges to any such action agency use of the revised counterpart “optional” procedures at the Chevron [Two] level.

In promulgating the revised optional emergency procedures, the wildlife agencies “believe[d] that EPA’s statutory and regulatory standard for an ‘emergency’ under FIFRA section 18 is generally comparable to the intended scope of emergency in 40 C.F.R. §402.05 and that, therefore, the overwhelming majority of FIFRAemergency exemptions could properly be considered emergencies for the purposes of §402.05.”[129] To the extent that this presumed “comparability” does not prove accurate regarding the facts at issue on a particular administrative record, the wildlife agencies may expect a district court to set aside their actions as arbitrary and capricious. For, if the wildlife agencies improperly equated two different statutorily defined emergencies to allow FIFRA actions that would not have qualified for [ESA] emergency exemption to defer formal consultation as if they had, a district judge is likely to rule the wildlife agencies not in compliance with both ESA and their own ESA-implementing regulations.

For example, a FIFRA herbicide or pesticide registration proceeding under ESA’s emergency regulatory provisions might ultimately survive a challenge to the action agency’s authority in emergency conditions to defer formal consultation on proposed pesticides registration if the counterpart provisions were applied because the situation presented “significant risks to threatened or endangered species, beneficial organisms, or the environment.”[130] But a decision to use the new counterpart authority to defer formal consultation for FIFRA emergency conditions under ESA’s emergency regulation is likely to be held invalid, i.e., beyond the scope of the action agency’s authority, if EPA had in fact registered the challenged pesticide to prevent “significant economic loss due to . . . an outbreak or an expected outbreak of a pest. . . .”[131]

Judicial Review of Challenges to Joint Counterpart

ESA §7 Consultation Regulations The Washington Toxics court recently issued a decision—now on appeal to the Ninth Circuit[132]—in the first judicial challenge to [ESA]/FIFRAcounterpart regulations. Construing the challenged regulatory provisions vis-à-vis relevant portions of ESA §7, the court held invalid the revised NLAAand emergency consultation provisions as “arbitrary and capricious, and contrary to law.”[133] Accordingly, the court ordered these provisions of [ESA]/FIFRA counterpart regulations set aside and enjoined the wildlife agen

Notes (Beyond delegated authority: the counterpart Endangered Species Act consultation regulations) Glossary

[134][135][136][137][138]

Citation

Drew, C. (2012). Beyond delegated authority: the counterpart Endangered Species Act consultation regulations. Retrieved from http://editors.eol.org/eoearth/wiki/Beyond_delegated_authority:_the_counterpart_Endangered_Species_Act_consultation_regulations
  1. ↑ See Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984) (instructing the lower courts to give no deference to an agency interpretation of a statute it administers that did not follow unambiguously expressed congressional intent ([One]), but to give considerable deference when reviewing an agency’s construction of such a statute if Congress apparently delegated broad discretion to the agency to fill gaps in the statutory scheme ([Two])).
  2. ↑ Counterpart regulations purport to offer alternative or better means of fulfilling statutorily required duties.
  3. ↑ 16 U.S.C. §§1531-1544, ELR Stat. ESA §§2-18 (imposing various requirements on both federal agencies and private parties to protect endangered and threatened species).
  4. ↑ Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, 68 Fed. Reg. 68254 (Dec. 8, 2003) ESA/NFP Counterpart Regulations or Counterpart Consultation Regulations (codified at 50 C.F.R. §§402.30 to 402.34 (2006)). Approved in 2000, the NFP was an interagency strategy “to reduce risks of catastrophic wildland fires and restore fire-adapted ecosystems.” 68 Fed. Reg. at 68254.
  5. ↑ 7 U.S.C. §§136-136y, ELR Stat. FIFRA §§2-34 (requiring, inter alia, manufacturers of new agricultural chemicals or pesticides to register them with the U.S. Environmental Protection Agency (EPA) before being allowed to produce or sell them publicly).
  6. ↑ Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, 69 Fed. Reg. 47732 (Aug. 5, 2004) ESA/FIFRA Counterpart Regulations or Counterpart Consultation Regulations (codified at 50 C.F.R. §§402.42(b), 402.43, and 402.44).
  7. ↑ See 16 U.S.C. §1532(15) (definition of “Secretary”). The FWS and NOAA Fisheries are hereinafter referred to collectively as “the Services” or the “wildlife agencies” and individually as “Service” or “wildlife agency.” The 2004 Federal Register notice promulgating the final ESA/FIFRA joint counterpart regulations listed only the Services as the responsible agencies. ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47732. Per the 2003 Federal Register notice promulgating [ESA]/NFP counterpart regulations, the U.S. Department of Agriculture’s Forest Service, the U.S. Department of the Interior’s Bureau of Indian Affairs and National Park Service, and the Bureau of Land Management cooperated with the Services in developing the regulations. ESA/NFP Counterpart Regulations, 68 Fed. Reg. at 68254.
  8. ↑ The ESA/FIFRA counterpart regulations were designed to achieve this goal “by increasing interagency cooperation and providing two optional alternatives for completing section 7 consultation for FIFRA regulatory actions.” ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47732. Similarly, [ESA]/NFP counterpart regulations were promulgated in 2003 “to enhance the efficiency and effectiveness of the consultation process under section 7 of [ESA] for Fire Plan Projects.” ESA/NFP Counterpart Regulations, 68 Fed. Reg. at 68254, 68264.
  9. ↑ See, e.g., 16 U.S.C. §1536(a)(2) ESA §7(a)(2) mandatory duty to avoid jeopardy (“Federal agencies shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued existence of any endangered or threatened species . . . .”) (emphasis added).
  10. ↑ Washington Toxics Coalition v. U.S. Fish & Wildlife Serv., 457 F. Supp. 2d 1158, 36 ELR 20190 (W.D. Wash. 2006), appeal docketed, No. 06-35873 (9th Cir. Oct. 17, 2006) (construing and applying [ESA] §7(a)(2) mandatory duty to avoid jeopardy in reaching that result).
  11. ↑ The Ninth Circuit has set a briefing schedule running from April 23 through July 16, 2007. Washington Toxics Coalition v. U.S. Fish & Wildlife Serv., No. 06-35873 (9th Cir. filed Oct. 17, 2006).
  12. ↑ Defenders of Wildlife v. Kempthorne (Kempthorne), No. 04-1230(GK), 2006WL2844232 (D.D.C. Sept. 29, 2006). The parties in this case are currently briefing attorneys’ fees issues.
  13. ↑ 420 F.3d 946, 35 ELR 20172 (9th Cir. 2005), cert. granted, National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 852 (Jan. 5, 2007) (No. 06-340), and cert. granted, EPA v. Defenders of Wildlife, 127 S. Ct. 853 (Jan. 5, 2007) (No. 06-549) (concluding that EPA erred in deciding that Agency must disregard the impact on endangered and threatened species of its decision to transfer administration of Clean Water Act permitting program to Arizona; vacating transfer decision as arbitrary and capricious, transferring lawsuit to district court, remanding petition for review to Agency).
  14. ↑ Washington Toxics, 457 F. Supp. 2d at 1178 (“7(a)(2) makes no legal distinction between the trigger for its requirement that agencies consult with FWS and the trigger for its requirement that agencies shape their actions so as not to jeopardize endangered species . . . .”) (citing Defenders, 420 F.3d at 961).
  15. ↑ The question presented by EPA’s petition, e.g., is: “Does [7(a)(2)] of Endangered Species Act, 16 U.S.C. §1536(a), which requires each federal agency to insure that its actions do not jeopardize continued existence of listed species or modify its critical habitat, override statutory mandates or constraints placed on agency’s discretion by other acts of Congress?” EPA v. Defenders of Wildlife, 127 S. Ct. 853 (Jan. 5, 2007) (No. 06-549). See infra note 203.
  16. ↑ That additional question began: “Whether the court of appeals correctly held that the Environmental Protection Agency’s decision to transfer pollution permitting authority to Arizona under the Clean Water Act . . . was arbitrary and capricious because it was based on inconsistent interpretations of [7(a)(2)] of the Endangered Species Act of 1973, 16 U.S.C. §1536(a)(2) . . . .” EPAv. Defenders of Wildlife, 127 S. Ct. 853 (Jan. 5, 2007) (No. 06-549). See infra note 19.
  17. ↑ 467 U.S. 837, 14 ELR 20507 (1984). Chevron established a two-step analysis to determine when judicial deference is due to an agency’s construction of a statute that it administers: “If the intent of Congress is clear, that is the end of the matter One. . . . If, however, . . .the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute Two.” Id. See also Cass R. Sunstein, Law and Administration After Chevron, 90 Colum. L. Rev. 2071, 2077 (Dec. 1990) (“Chevron applies only in cases of congressional delegation of law-making authority”); Thomas W. Merrill & Kristin E. Hickman, Chevron’s Domain, 89 Geo. L.J. 833, 836 (2001) (the conclusion that Chevron “rests on an implied delegation from Congress” means that Congress “has ultimate authority over the scope of the Chevron doctrine, and that the courts should attend carefully to the signals Congress sends about its interpretive value”).
  18. ↑ See 5 U.S.C. §706(2), available in ELR Stat. Admin. Proc. (“The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be—(A) arbitrary, capricious . . . .”).
  19. ↑ See various cites supra note 16. The second part of the Court’s additional question was, “and, if so if the Agency’s decision was arbitrary and capricious because it was based on inconsistent interpretations of ESA §7(a)(2), whether the court of appeals should have remanded to [EPA] for further proceedings without ruling on the interpretation of [7(a)(2)].” Cf. 5 U.S.C. §706(2) (“The reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be—(A) . . . otherwise not in accordance with law; . . . (C) in excess of statutory jurisdiction, authority, or limitations . . . ; (D) without observance of procedure required by law . . . .”). See infra note 203.
  20. ↑ ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47732.
  21. ↑ I.e., to the long-standing regulatory processes that all federal agencies had previously been required to use to fulfill their ESA §7(a)(2) mandatory duty to avoid jeopardy.
  22. ↑ ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47732, 47733.
  23. ↑ ESA/NFP Counterpart Regulations, 68 Fed. Reg. at 68254.
  24. ↑ Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 n.*, 13 ELR 20672 (1983) (Rehnquist, J., dissenting). In the final footnote of his dissent, Justice Rehnquist asserted: “Of course, a new administration may not refuse to enforce laws of which it does not approve, or to ignore statutory standards in carrying out its regulatory functions.” Id. at 59 n.*.
  25. ↑ See, e.g., 7 U.S.C. §136(bb) (“Definition of unreasonable adverse effects on the environment means any unreasonable risk to Human race or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide . . . .”).
  26. ↑ But see 16 U.S.C. §1533(b)(2) (“The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat . . . .”).
  27. ↑ See supra note 9 and accompanying text; see also 15 U.S.C. §1546(a)(1) ESA §7(a)(1) mandatory duty to utilize authorities for conservation (“Federal agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of [ESA]by carrying out programs for . . . conservation of endangered species and threatened species”).
  28. ↑ See also Forest Guardians v. Babbitt, 174 F.3d 1178, 29 ELR 20351 (10th Cir. 1999) (holding that Secretary of the Interior would be compelled to perform nondiscretionary duty mandated by ESA to designate critical habitat for endangered minnow, notwithstanding claimed resource limitations and impossibility of compliance due to previous moratorium on spending and insufficient monetary allocations since moratorium expired; also finding that such defenses could be raised only in contempt proceedings for alleged noncompliance with injunction).
  29. ↑ See, e.g., TVA, 437 U.S. at 194 (“Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’”).
  30. ↑ Although the post-TVA 1979 ESA Amendments “softened the obligation on an agency from requiring the agency to ‘insure’ the species would not be jeopardized to requiring the agency to ‘insure’ that jeopardy is not ‘likely,’” Congress’ “legislative intent” in those amendments was that ESA “continues to give the benefit of the doubt to the species.” Roosevelt Campobello Int’l Park Comm’n v. EPA, 684 F.2d 1041, 1048, 12 ELR 20911 (1st Cir. 1982) (citing Pub. L. No. 96-159, §4(1)(C), 93 Stat. 1225, 1226 (1979), H.R. Rep. No. 96-697 (Conf. Rep.), reprinted in 1979 U.S.C.C.A.N. 2557, 2572, 2576)).
  31. ↑ See, e.g., Nathan Baker, Water, Water, Everywhere, and at Last a Drop for Salmon?NRDCv. Houston Heralds New Prospects Under Section 7 of the Endangered Species Act, 29 Envt. L. 607, 613 (Fall 1999) (quoting Donald Barry, Assistant Secretary for Fish, Wildlife, and Parks, U.S. Department of the Interior (DOI)).
  32. ↑ Babbitt v. Sweet Home Chapter of Communities for a Greater Or., 515 U.S. 687, 703-04, 25 ELR 21194 (1995) (quoting TVA, 437 U.S. at 180). ESA defines “endangered species” as “any species which is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. §1532(6). ESA defines “threatened species” as “any species which is likely to become endangered within the foreseeable future throughout all or a significant portion of its range.” Id.§1532(20).
  33. ↑ See id. §1536(a) (establishing that all federal agencies must, in consultation with the Secretary, fulfill both their ESA §7(a)(1) mandatory duty to utilize authorities for conservation and their ESA §7(a)(2) mandatory duty to avoid jeopardy). ESA §4 requires the Secretary to determine whether any species is endangered or threatened and to designate critical habitat for such “listed” species. 16 U.S.C. §1533. ESA §9 broadly prohibits acts by any person that harm protected species. 16 U.S.C. §1538. ESA provides for both civil and criminal penalties, id. §1540(a)-(b), and for citizen suits, id. §1540(g). See infra Part III.A. and note 89.
  34. ↑ Defenders of Wildlife v. Administrator, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989) (holding that EPA’s regulatory registration of strychnine under FIFRA could violate ESA by “taking” protected species that fed on poisoned carcasses, even though other persons actually used the strychnine for animal control).
  35. ↑ TVA, 437 U.S. at 188 (“[ESA] §10, 16 U.S.C. §1539, create[d] a number of limited ‘hardship exemptions’ Full statury compliance, none of which To federal agencies . . . . [Thus,] “under the maxim expressio unius est exclusio alterius, we must presume that these were the only ‘hardship cases’ Congress intended to exempt.”).
  36. ↑ ESA §3(15) defines the term “Secretary” as “the Secretary of the Interior or the Secretary of Commerce as program responsibilities are vested pursuant to the provisions of Reorganization Plan Numbered 4of 1970 . . . .”16U.S.C. §1532(15). The only definitional exception Congress made to this designation of ESA program responsibility to the Secretaries of the Interior and Commerce was “with respect to the enforcement of the provisions of this chapter and the Convention which pertain to the importation or exportation of terrestrial plants.” Id. “Secretary” in only that respect “also means” the “Secretary of Agriculture.” Id.
  37. ↑ Id. §1536(a)(1); see also id. §1532(3) (“The terms ‘conserve,’ ‘conserving,’and ‘conservation’ mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [ESA] are no longer necessary.”).
  38. ↑ Id. §1536(a)(2). The most notable ESA §7(a)(2) “avoid jeopardy” case is of course TVA. See also 16 U.S.C. §1536(a)(4). Each Federal agency shall confer with the [appropriate] Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed Endangered or threatened or result in the destruction or adverse modification of critical habitat proposed to be designated for such species.
  39. ↑ Id. §1536(d); accord Natural Resources Defense Council v. Houston, 146 F.3d 1118, 1127, 28 ELR 21368 (9th Cir. 1998) (holding when Bureau of Reclamation may not execute water service contracts that constitute irreversible and irretrievable commitment of resources during formal consultation process under ESA, Bureau’s failures to follow ESA procedure (by engaging in Agency action under ESA before Service issued biological opinion (BO)) cannot be corrected with post-hoc assessments; affirming the district court’s decision to rescind water service contracts even where Service ultimately issued “no jeopardy” BO).
  40. ↑ Houston, 143 F.3d at 1127 (explaining that the Bureau had affirmative duty to ensure that its actions do not jeopardize endangered species, and agency had clear legal obligation to request formal consultation where the appropriate Service disagreed with agency’s determination of no adverse impact, even if Service took position that formal consultation was unnecessary).
  41. ↑ . Tennessee Valley Auth. v. Hill, 437 U.S. 153, 154, 8 ELR 20513 (1978).
  42. ↑ Since TVA, periodic substantive amendments have somewhat adjusted, but not substantially altered, the breadth and reach of ESA as described by the Court in TVA and Sweet Home Courts. See supra text accompanying note 31. For example, in 1978 Congress authorized a Cabinet-level committee (popularly called the “God squad”) to convene in exceptional circumstances to grant exemptions from §7’s ban on federal actions that jeopardize species. Act of Nov. 10, 1978, Pub. L. No. 95-632, 92 Stat. 3751 (1978) (codified as amended at 16 U.S.C. §1536(e)-(h) (2000)). Nevertheless, the God squad has rarely been convened, and, when convened, has issued no significant exemptions to the §7 ban. See, e.g., Michael Bean & Melanie Rowland, The Evolution of National WildlifeLaw264 (3d ed. 1997).
  43. ↑ See supra note 27; see also Carson-Truckee Water Conservancy Dist. v. Clark, 741 F.2d 257, 262, 14 ELR 20797 (9th Cir. 1984) (affirming district court’s holding that Secretary of the Interior properly fulfilled ESA §7(a)(1) duty to conserve species in deciding not to sell reclamation project’s water until listed species no longer needed protection).
  44. ↑ See supra note 9, 34 and accompanying text; see also Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 15 ELR 20333 (10th Cir. 1985) (stating that “[ESA] imposes on agencies a mandatory obligation to consider the environmental impacts of the projects they authorize or fund” and affirming district court’s decision dismissing plaintiffs’ complaint that the U.S. Army Corps of Engineers wrongfully required them to apply for individual permit (rather than more generic nationwide permit)). The court concluded that the record supported Agency’s finding that proposed discharge may adversely modify critical habitat of whooping cranes. Id.
  45. ↑ Agencies must also consult with the Secretary before taking any Agency action “at the request of, and in cooperation with,” a prospective permit or license applicant who “has reason to believe” that a protected species “may be present in the area affected by his project and that implementation of such action will likely affect such species.” 16 U.S.C. §1536(a)(3).
  46. ↑ See, e.g., Washington Toxics Coalition v. EPA, 413 F.3d 1024, 35 ELR 20138 (9th Cir. 2005), cert. denied, 126 S. Ct. 1024 (2006) (affirming suspension of pesticide regulation because FIFRA did not relieve EPA of its obligation to comply with ESA); Defenders of Wildlife v. Administrator, 882 F.2d 1294, 19 ELR 21440 (8th Cir. 1989) (continued registration of strychnine pesticide effected “taking” of endangered species); Center for Biological Diversity v. Leavitt, No. C-02-01580JSW, 2005 WL 2277030, 35 ELR 20190 (N.D. Cal. Sept. 19, 2005) (finding that EPA violated ESA §7 by not initiating consultation withFWSregarding potential effects of pesticides registered with EPA on red-legged frog); accord Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 31 ELR 20535 (9th Cir. 2001) (holding that compliance of herbicide with FIFRA did not obviate need for Clean Water Act (CWA) permit); Aluminum Co. of Am. v. Bonneville Power Admin., 175 F.3d 1156 (9th Cir. 1999) (finding agency’s action in adopting measures recommended by appropriate Service to avoid jeopardy to continued existence of salmon in Columbia River Basin was not improper balancing of ESAobligations with Northwest Power Act’s requirement that Pacific Northwest be assured of adequate, efficient, economical, and reliable power supply; that statute did not supplant Agency’s obligation to comply with ESA mandates); Conservation Law Found. of New England v. Andrus, 623 F.2d 712, 715, 10ELR20067 (1st Cir. 1979) (holdingESAapplied “of its own force” to actions of Secretary taken under Outer Continental Shelf Lands Act). But cf. supra notes 15, 16, 19 (quoting questions currently under Supreme Court review in the Ninth Circuit’s Defenders case).
  47. ↑ See, e.g., United States v. Kepler, 531 F.2d 796, 6 ELR 20340 (6th Cir. 1976) (finding EPA’s regulation of sale or transportation of protected wildlife is permissible, and does not effect taking of property in violation of U.S. Constitution, Amendment 5); United States v. Billie, 667 F. Supp. 1485, 18 ELR 20209 (S.D. Fla. 1987) (holding ESA’s ban against “taking” Florida panther did not impose unconstitutional burden on Seminole Indian’s free exercise rights, where use of panther parts was not essential to practice of religion).
  48. ↑ Originally enacted in 1947, FIFRA now defines “registration” also to include “re-registration.” 7 U.S.C. §136(z). The FIFRA Amendments of 1988, Pub. L. No. 100-532, 102 Stat. 2654 (1988) (codified as amended in scattered sections of 7 U.S.C.), added the requirement that EPA reregister pesticides containing active ingredients first registered before November 1, 1984, under present standards. See, e.g., 7 U.S.C. §136a-1. In the Federal Quality Protection Act (FQPA) of 1996, Pub. L. No. 104-170, 110 Stat. 1489 (1986), Congress set further deadlines for EPA to review all existing tolerances for pesticide chemical residues, against the new standard set forth therein. See 21 U.S.C. §346a(q). Even parties in cases challenging EPA’s actions under the FIFRA program, e.g., the Washington Toxics plaintiffs, did not dispute that “EPA is faced with a task of gargantuan proportions.” Washington Toxics Coalition v. U.S. Fish & Wildlife Serv., 457 F. Supp. 2d 1158, 1164 36 ELR 20190 (W.D. Wash. 2006).
  49. ↑ FIFRA defines “pesticides” broadly. See 7 U.S.C. §136(u). A registeredpesticide is comprised of one or more active ingredients. See id.§136(a) (further defining active ingredient).
  50. ↑ No person in any state may distribute or sell any pesticide not registered or exempted pursuant to FIFRA. Id. §136a(a). To the extent “necessary to prevent unreasonable adverse effects on the environment,” FIFRA also authorizes EPA by regulation to “limit the distribution, sale, or use in any State of any pesticide” that is not registered or exempted under FIFRA. Id. No person may “use any registered pesticide in a manner inconsistent with its labeling.” Id. §136j(a)(2)(G) (2000).
  51. ↑ . Id. §136a(c)(5)(C)-(D).
  52. ↑ Id. §136(j).
  53. ↑ See, e.g., Dithiocarbamate Task Force v. EPA, 98 F.3d 1394, 1401, 27 ELR 20224 (D.C. Cir. 1996) (“[H]azards from the proper use of such chemicals might justify a ban under FIFRA.”) (citing 7 U.S.C. §136a(c)(5)(D) as requiring as “predicate” to Agency’s authority to register pesticides an Agency determination that “when used in accordance with widespread and commonly recognized practice it will not generally cause unreasonable adverse affectson the environment”).
  54. ↑ 7 U.S.C. §136(bb)(1).
  55. ↑ Id. §136(x). This latter provision was added in the environmentally protective FIFRA amendments of 1972; see also Ruckelshaus v. Monsanto Co., 467 U.S. 986, 14 ELR 20539 (1984) (noting that Congress’ extensive 1972 revision of FIFRA transformed the Act from a labeling law to a “comprehensive regulatory statute”).
  56. ↑ See generally 7 U.S.C. §136d (establishing a statutory sunset provision requiring EPA to cancel a pesticide’s registration after the first five years in which it has been effective—and, if renewed, at subsequent five-year intervals—“unless the registrant, or other interested person with the concurrence of the registrant . . . requests . . . that the registration be continued in effect”).
  57. ↑ The 1972 Amendments transferred responsibility for administering FIFRA from the U.S. Department of Agriculture to EPA. S. Rep. No. 92-838, reprinted in 1972 U.S.C.C.A.N. 4032-33.
  58. ↑ See, e.g., Wellford v. Ruckelshaus, 439 F.2d 598, 601, 1 ELR 20065 (D.C. Cir. 1971) (stating that within broad limits, FIFRA grants EPA Administrator latitude not only to find facts in required proceeding, but also to set policy in the public interest; it is particularly appropriate for court to defer to Administrator’s exercise of such discretion when matter at issue is interim relief pending decision on registration cancellation).
  59. ↑ 7 U.S.C. §136d(a)(1); see also id. §136p (emphasis added) (specifying “emergency” conditions under which EPA Administrator could exempt a pesticide from FIFRA’s registration requirements; however in determining whether or not such emergency conditions exist, the Administrator “shall consult with the Secretary of Agriculture and the Governor of any state concerned if the request such a determination”).
  60. ↑ 7 U.S.C. §136p (emphasis added). Pursuant to the regulations, the four main types of exemptions are specific, quarantine, public health, and crisis exemptions. 40 C.F.R. pt. 166.2 (2006).
  61. ↑ See also McGill v. EPA, 593 F.2d 631, 635, 9 ELR 20271 (1979) (construing 7 U.S.C. §136d(b) and noting that Congress’ 1972 FIFRA revisions were both “aimed at increasing the EPA’s ability to protect the environment” and “designed to assure that the economic interest of farmers and other consumers would be fully considered before any pesticide was withdrawn from the market”).
  62. ↑ 7 U.S.C. §136d(b) (emphasis added); see also Environmental Defense Fund v. EPA, 510 F.2d 1292, 1305, 5 ELR 20243 (1975) (affirming EPA’s suspension order because there was adequate evidentiary basis for EPA’s finding that aldrin/dieldrin presented an imminent hazard during the time required for cancellation and remanding issue of whether to exempt existing stocks of the pesticides). See supra notes 51, 54.
  63. ↑ 7 U.S.C. §136d(c).
  64. ↑ Id. §136(l).
  65. ↑ 7 U.S.C. §136a(d)(1)(B).
  66. ↑ Id. §136a(d)(1)(C); see also Ciba-Geigy Corp. v. EPA, 874 F.2d 277, 280, 16 ELR 21281 (5th Cir. 1989) (vacating order canceling registration of diazinon for use on golf courses and sod farms; remanding to Administrator to apply correct legal standard per court’s construction of “generally” as “requir[ing] the Administrator to determine that the use of a pesticide in a particular application creates unreasonable risks, though not necessarily actual adverse consequences, with considerable frequency, and thus requires the Administrator to consider whether he has defined the application he intends to prohibit sufficiently narrowly”).
  67. ↑ Defenders of Wildlife v. Administrator, 882 F.2d 1294, 1299, 19 ELR 21440 (8th Cir. 1989) (“[A] pesticide registration that runs against the clear mandates of [ESA] will most likely cause an unreasonable adverse effect on the environment under FIFRA.”). Pursuant to Defenders of Wildlife, EPA’s FIFRA regulations allow EPA to conduct a special review of pesticide use, and explicitly provide for such when either a pesticide may “pose a risk to the continued existence” of any endangered or threatened species under [ESA] or may “result in the destruction or other adverse modification of any habitat designated” under [ESA] as critical habitat. Id. (citing 40 C.F.R. §154.7(a)); see also supra notes 35, 47.
  68. ↑ 7 U.S.C. §136(l) (specifying circumstances of “imminent hazard” sufficient to justify Administrator’s discretionary cancellation of pesticide registration as “situation” likely to involve such “unreasonable hazard”) (emphasis added); see also Ciba-Geigy, 874 F.2d at 280 (construing FIFRA’s cancellation section as granting EPA Administrator discretionary authority to decide if recurring bird kills that do not significantly reduce bird population are nonetheless unreasonable environmental effect). See supra note 68.
  69. ↑ 50 C.F.R. §402.04 (“The consultation procedures set forth in this part may be superseded for a particular Federal agency by joint counterpart regulations among that Agency, the Fish and Wildlife Service, and the National Marine Fisheries Service . . . .”). The only other requirement for counterpart regulations established by §402.04 was that they be published in the Federal Register as proposed regulations and “shall be subject to public comment for at least 60 days before final rules are published.” Id.
  70. ↑ The first regulatory context in which the term “counterpart regulations” appears with reference to the National Fire Plan is in the Services’ proposed Joint Counterpart Endangered Species Act Section 7 Consultation Regulations, which notices “joint counterpart regulations . . . to streamline [ESA] consultation on proposed projects that support the National Fire Plan.” Joint Counterpart ESA §7 Consultation Regulations, 68 Fed. Reg. 33806 (June 5, 2003) (codified at 50 C.F.R. §§402.30-402.34).
  71. ↑ The first regulatory context in which the term “counterpart regulations” appears with reference to [ESA] and FIFRA is the following provision in EPA’s notice of proposed field implementation approach and request for comment for the Endangered Species Protection Program: “[T]hese regulations (50 C.F.R. part 402) allow Federal agencies to establish alternate procedures, applicable to specific Federal programs, for satisfying the provisions of ESA §7(a)(2). Those alternate procedures are known as counterpart regulations.” Endangered Species Protection Program Field Implementation, 67 Fed. Reg. 71549 (proposed Dec. 2, 2002).
  72. ↑ ESA/NFP Counterpart Regulations, 68 Fed. Reg. at 68254, 68262.
  73. ↑ The wildlife agencies issued these regulations pursuant to Congress’ broad grant of authority to the Secretary to “promulgate such regulations as may be appropriate to enforce this chapter . . . .” 16 U.S.C. §1540(f). The Court’s last significant post-Chevron case further construing applicable standards for judicial review of agency action was United States v. Mead Corp., 533 U.S. 218 (2001) (finding that tariff ruling was not entitled to Chevron deference, but may be entitled to lesser degree of Skidmore deference depending on degree of its persuasiveness). In Mead, the Court “assume[d] generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force, noting that “the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication.” Cf. Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 Admin. L. Rev. 807 (Spring 2002) (“Mead majority was on the right track in holding that the key to the scope of Chevron is whether Congress has delegated authority to an agency to make rules with the force of law, and the agency has exercised that authority”); Cass R. Sunstein, Chevron Step Zero, 92 Va. L. Rev. 187, 191-92 (Apr. 2006) (although arguing in post-Mead analysis for the need for additional “initial inquiry into whether the Chevron framework applies at all,” concluding that “courts should increase their willingness to use the Chevron framework whenever the agency has authoritatively answered a question about the meaning of a statute that it has been asked to administer”). Like EPA’s Clean Air Act regulations at issue in Chevron itself, the disputed ESA counterpart regulations are products of noticeand- comment rulemaking and purport to provide an authoritative answer about the meaning of such a statute. The proper delegation/ deference inquiry thus proceeds—as undertaken by both the Washington Toxics and the Kempthorne courts—pursuant to Chevron, not Mead.
  74. ↑ See supra notes 10-19 and accompanying text.
  75. ↑ See, e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 n.*, 13 ELR 20672 (1983) (Rehnquist, J., dissenting) (“[A] new administration may not . . . ignore statutory standards in carrying out its regulatory functions.”).
  76. ↑ 16 U.S.C. §1536(c).
  77. ↑ Id. In neither §1536(c), where theESArequires agencies to complete a “biological assessment,” nor §1532 (Definitions) did Congress specifically define that term beyond specifying in §1536(c) that “[s]uch assessment may be undertaken as part of a Federal agency’s compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. §4332).” Id. Cf. 50 C.F.R. §402.02 (“[B]iological assessment refers to the information prepared by or under the direction of the Federal agency concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation [of] potential effects of the action on such species and habitat.”) (emphasis added).
  78. ↑ See 50 C.F.R. §402.02 (“[J]eopardize the continued existence of species means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.”) (emphasis added).
  79. ↑ 16 U.S.C. §1536(a)(2); see also 50 C.F.R. §402.14. The FWS of the DOI and the NMFS of the U.S. Department of Commerce share responsibility for administering ESA. See supra note 37 and infra Part V.C. Essentially, the Secretary of the Interior (through FWS) is responsible for terrestrial species, freshwater species, and some marine species (marine birds and sea otter). 50 C.F.R. §222.101. The Secretary of Commerce (throughNMFSin the National Oceanic and Atmospheric Administration (NOAA)) is responsible for most marine species and most anadromous fish. Id.FWSandNMFSshare jurisdictionover certain species such as Atlantic salmon and sea turtles. See, e.g., Hawksbill Sea Turtle v. Federal Emergency Management Agency, 126 F.3d 461, 470, 28 ELR 20101 (3d Cir. 1997) (“When the turtles are swimming . . . Commerce bears regulatory responsibility, and when the turtles return to the beach, the regulatory baton passes to Interior.”). Hereinafter, references to “the Service” or “the wildlife agency” will signify whichever of these two agencies properly has responsibility forESAcompliance in a given regulatory context. The FWS and the NMFS will be distinguished only when necessary for a particular purpose.
  80. ↑ 16 U.S.C. §1536(b)(3)(A).
  81. ↑ 50 C.F.R. §402.02. RPAs are alternative actions within the agency’s legal authority “that can be implemented in a manner consistent with the intended purpose of the action.” Id. RPAs are designed to avoid the likelihood of jeopardizing the continuing existence of the species or of destroying or adversely modifying critical habitat, and must be economically and technologically feasible for the agency to implement. Id.
  82. ↑ 16 U.S.C. §1536(b)(4). In Gonzales v. Oregon, 126 S. Ct. 904, 921 (2006) (rejecting Attorney General’s interpretation of Controlled Substances Act to prevent doctors from prescribing drugs used to assist suicide), the Court analyzed and resolved a dispute regarding relative agency power in decision-making presenting a close analog of the divided authority in the relationships Congress delineated in ESA between the [agencies] and the Secretaries of the wildlife agencies—as may readily be seen by simply considering the Attorney General and the Secretary of Health and Human Services (HHS) under the Act at issue in Gonzales as the [agencies] and the Secretaries of the wildlife agencies under ESA, i.e.: The authority desired by the Government is inconsistent with the design of the statute in other fundamental respects. The Attorney General Agencies does [do] not have the sole delegated authority under the [Act]. He [they] must instead share it with, and in some [all] respects defer to, the Secretary, whose functions are likewise delineated and confined by the statute. The [Act] allocates decision-making powers among statutory actors so that medical [wildlife] judgments . . . are placed in the hands of the Secretary. In the scheduling [consultation] context, for example, the Secretary’s recommendations on scientific and medical [wildlife] matters bind the Attorney General [the [agencies]]. The Attorney General [the [agencies]] cannot control a substance their mandatory ESA section 7 duty to “avoid jeopardy” if the Secretary disagrees. Gonzales, 126 S. Ct. at 920.
  83. ↑ 520 U.S. 154, 27 ELR 20824 (1997) (holding that claim that Secretary failed to consider economic impact of designating critical habitat was reviewable under ESA’s citizen-suit provision; but claim that biological opinion did not comply with ESA’s requirement to use best available scientific and commercial data was reviewable under APA).
  84. ↑ Id. at 169 (quoting Brief of Respondent at 20-21, Bennett v. Spear, 520 U.S. 154, 27 ELR 20824 (1977) (No. 95-813)) (citations omitted).
  85. ↑ Bennett, 520 U.S. at 178.
  86. ↑ Id. at 169.
  87. ↑ Id. (quoting ESA §1540(a), (b) (authorizing civil fines of up to $25,000 per violation and criminal penalties of up to $50,000 per violation and imprisonment for up to one year)) (citing Babbitt v. Sweet Home Chapter of Communities for Great Or., 515 U.S. 687, 708, 25 ELR 21194 (1995) (upholding interpretation of term “take” to include significant habitat degradation)).
  88. ↑ See supra Section A. and infra Appendix, Chart B.
  89. ↑ 50 C.F.R. §402.13.
  90. ↑ Id. To the contrary, in summarizing substantive comments to the proposed ESA/FIFRA counterpart regulations, Holly Doremus reiterated many commenters’ suggestion that “eliminating the Service concurrence is like asking the fox to watch the henhouse”: Many commenters believe that the different missions between the Action Agencies and the Service will not allow the Action Agencies to make decisions that would be “equally as protective of listed species and critical habitat.” In fact many commenters noted that historically, the [agencies] have pursued environmentally damaging projects that were in direct conflict with their own policy. . . . One State noted that they [sic] believe the elimination of oversight and environmental review will allow the Action Agencies to abuse their discretion. Holly Doremus, Science Plays Defense: Natural Resource Management in the Bush Administration, 32 Ecology L.Q. 249, 284 n.176 (citing Joint Counterpart Regulations, 68 Fed. Reg. at 68259).
  91. ↑ ESA/NFP Counterpart Regulations, 68 Fed. Reg. at 68254. Similarly, in promulgating [ESA]/FIFRA counterpart regulations, the wildlife agencies believed that “[n]ew, streamlined procedures promise to be more efficient for both EPA and the Services, and potentially more protective of listed species, because they will allow EPA and the Services to focus more resources on those actions most likely to pose risk to listed species.” ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47732, 47736.
  92. ↑ Tennessee Valley Auth. v. Hill, 437 U.S. 153, 185, 8 ELR 20513 (1978).
  93. ↑ ESA/NFP Counterpart Regulations, 68 Fed. Reg. at 68254.
  94. ↑ Id.
  95. ↑ Id. at 68254, 68257 (emphasis added).
  96. ↑ In the Preamble to [ESA]/FIFRA counterpart regulations, the wildlife agencies emphasized how “the number of annual pesticide decisions made by EPA was also a factor potentially affecting how best to improve the §7 consultation process”: In a typical year, EPA will make hundreds of significant decisions regarding pesticide registration. . . . Numbers of actions . . . have risen each year since FY 2000. The number of requests by EPA to initiate consultation on pesticide actions is expected to increase substantially in future years. . . . This rule is intended to make the consultation process more efficient because some FIFRA actions could be conducted pursuant to the alternative consultation procedures outlined in this rule. Id. at 47736.
  97. ↑ Id. at 47737.
  98. ↑ Id. Although the Preamble to [ESA]/NFP counterpart regulationssimilarly provides for execution of an ACA to govern action agencyNFP actions, that preamble does not contain such a disclaimer.ESA/NFP Counterpart Regulations, 68 Fed. Reg. at 68254.
  99. ↑ Id. at 9.
  100. ↑ Id. at 9.
  101. ↑ 437 U.S. at 177, 194 (emphasis added) (quoting H.R. Rep. No. 93-412, at 4-5 (1973)).
  102. ↑ ACA, supra note 102, at 6.
  103. ↑ Id. at 10.
  104. ↑ If at any point in this process, the action agency determines—with the written concurrence of the wildlife agency—that its proposed project is “not likely to adversely affect” protected species, then no further consultation is necessary. See supra Section A.
  105. ↑ As supplemented by the extensive regulatory requirements elaborated in over three pages in 50 C.F.R. §402.14—from which, e.g., the Washington Toxics court in its decision set forth a block quotation running almost a page. Washington Toxics, 457 F. Supp. 2d at 1161 n.1.
  106. ↑ 520 U.S. at 154. See supra notes 85-89 and accompanying text.
  107. ↑ See Bennett, 520 U.S. at 169 (“A Biological Opinion of the sort rendered here alters the legal regime to which the action agency is subject.”).As then-Judge Stephen G. Breyer wrote some 20 years ago, “courts will defer more when the agency has special expertise that it can bring to bear on the legal question.” Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363, 370 (1986). Over the past 30 years, the Supreme Court has also in its jurisprudence proven the opposite proposition, i.e., that it will defer less—if at all—to agencies that do not have such special expertise to “bring to bear on the legal question” on which they undertake to act. The strength of such case law also stands against any likelihood that Congress in ESA could have intended to delegate to the Secretaries of the expert wildlife agencies the authority to subdelegate dispositive wildlife-protective decisions to the managers of a plethora of [agencies] expert in a wide range of disparate matters.For example, in Hampton v. Mow Sun Wong, 426 U.S. 88 (1976) (affirming appellate court’s reversal of district court’s denial of relief to aliens challenging Civil Service Commission regulations excluding most persons but American citizens from most federal service employment), the Supreme Court specifically stated as a rationale for its holding that the agency performs but “a limited and specific function” and “has no responsibility” first, “for” or, second, “even” to “be concerned with” a host of other specialized areas that the agency’s disputed action apparently reached, e.g., first, foreign affairs, treaty negotiations, establishing immigration quotas or conditions of entry, or naturalization policies, and, second, even “the economic consequences of permitting or prohibiting the participation by aliens in employment opportunities in different parts of the national market.” The Supreme Court therefore concluded that, since the “only” concern of the agency was “promotion of an efficient federal service,” only “administrative convenience”—not also this wealth of above-cited broader rationales—might provide a “rational basis” for the agency’s general rule.In Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990) (migrant workers were not barred under Migrant and Seasonal Agricultural Worker Protection Act from bringing private right of action alleging intentional violations of Act by exclusivity provisions of state workers’ compensation laws), the Supreme Court emphasized that a “precondition to deference under Chevron is a congressional delegation of administrative authority” (citing Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988)). See also Crandon v. United States, 494 U.S. 152, 177 (1990) (Scalia, J., concurring in the judgment) (rejecting Chevron deference where statute “is not administered by any agency but by the courts”).Moreover, in Gonzales v. Oregon, 126 S. Ct. 904 (2006), the Supreme Court emphasized that “the structure” of the statute “convey[ed] unwillingness to cede medical judgments to an Executive official who lacks medical expertise.” Revalidating its past practice in interpreting statutes that “divided authority,” the Supreme Court in Gonzales reiterated its prior holding in Martin v. Occupational Safety&Health Review Comm’n, 499 U.S. 144, 153 (1991) (holding that a court should defer to the Secretary of Labor where the Secretary and the Civil Service Commission both offer reasonable but conflicting interpretations of ambiguous regulation that the Secretary promulgated): Because historical familiarity and policymaking expertise account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency rather than to the reviewing court, we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.
  108. ↑ See, e.g., ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47737-39.
  109. ↑ See id. at 47738. Any such final opinion or statement will be signed by the Service Director, who may not delegate this authority beyond certain designated headquarters officials, and will constitute the opinion of the Secretary and the incidental take statement, reasonable and prudent measures, and terms and conditions under [ESA] §7(b) . . . .Id.
  110. ↑ Id. at 47737-38.
  111. ↑ Id. at 47738.
  112. ↑ Id. at 47739.
  113. ↑ See also supra notes 110-12 and accompanying text. See infra Appendix, Charts B and D.
  114. ↑ U.S. Const. art. §2, cl. 1. See also, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully . . . .”); Reno v. Flores, 507 U.S. 292, 301 (1993) (applying Salerno to challenges of regulations) (“[T]o prevail in such a facial challenge, Challenger must establish that no set of circumstances exists under which the regulation would be valid.”).
  115. ↑ See 5 U.S.C. §706.
  116. ↑ 69 Fed. Reg. at 47737-38.
  117. ↑ 50 C.F.R. §402.05(a).
  118. ↑ Id.
  119. ↑ Id.
  120. ↑ Id. §402.05(b).
  121. ↑ Id.
  122. ↑ See, e.g., ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47739-40.
  123. ↑ 40 C.F.R. §166.3(d) (2006). Moreover, for such FIFRA-defined “emergencies,” Congress granted the EPA Administrator discretion to “exempt any Federal or State agency from any provision” of FIFRA if the Administrator “determines that emergency conditions exist which require such exemption.” 7 U.S.C. §136p.
  124. ↑ 40 C.F.R. §166.3(d)(3)(iii) (2006).
  125. ↑ Id. §166.3(d)(3)(iv).
  126. ↑ Id. §402.05(a).
  127. ↑ See also, e.g., United States v. Salerno, 481 U.S. 739, 745 (1987) (“A facial challenge to a legislative act is, of course, the most difficult challenge to mount successfully . . . .”); Reno v. Flores, 507 U.S. 292, 301 (1993) (applying Salerno to challenges of regulations) (“[T]o prevail in such a facial challenge, Challenger must establish that no set of circumstances exists under which the regulation would be valid.”).
  128. ↑ U.S. Const. art. III, §2, cl. 1.
  129. ↑ ESA/FIFRA Counterpart Regulations, 69 Fed. Reg. at 47739.
  130. ↑ 40 C.F.R. §166.3(d)(3)(iii).
  131. ↑ Id. §166.3(d)(3)(iv).
  132. ↑ 457 F. Supp. 2d at 1158, appeal docketed, No. 06-3573 (9th Cir. Oct. 17, 2006); see also supra Part I.B. and accompanying notes.
  133. ↑ 5 U.S.C. §706(2). See infra Part IV.B. for further discussion of the Washington Toxics court’s NLAA and emergency provisions rulings.
  134. ↑ 437 U.S. 153, 8 ELR 20513 (1978) (holding that ESA prevented TVA from operating virtually completed dam because its operation would either destroy the endangered snail darter or its critical habitat—even though Congress had continued to appropriate millions of dollars to complete dam after congressional appropriations committees had learned that an endangered species was present).
  135. ↑ See id. §136a(d)(1)(B)-(C); see also Montana Pole&Treating Plant v. I.F. Laucks & Co., 775 F. Supp. 1339, 1343 (D. Montana 1991), aff’d, 993 F.2d 676, 23 ELR 20843 (9th Cir. 1993) (“Under FIFRA, the EPA is required to register a pesticide if it determines (1) the pesticide’s labeling and other materials comply with FIFRA’s requirements; and (2) the pesticide, when used properly will perform its intended purpose without unreasonable adverse effects on the environment.”).
  136. ↑ 16 U.S.C. §1536(a)(2).
  137. ↑ The ACA was signed on August 25-26, 2004, by the Acting Assistant Administrator, Office of Prevention, Pesticides, and Toxic Substances, EPA; Director, FWS; and Assistant Administrator for Fisheries, NOAA. See U.S. EPA et al., Alternative Consultation Agreement for Implementation of Optional Alternative Consultation Procedures (2005), available at EPA ACA.
  138. ↑ See Washington Toxics Coalition v. U.S. Fish&Wildlife Serv., 457F. Supp. 2d 1158, 36 ELR 20190 (W.D. Wash. 2006).
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