Two months ago, a federal district court in Alaska set aside the Department of the Interior’s designation of critical habitat for the polar bear. This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska. That isn’t atypical; critical habitat designations often generate controversy. But one might wonder why.
The ESA’s only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition. Specifically, section 7 of the ESA prohibits federal agencies from taking any action “likely to… result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical.” In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the forgotten step-child of the ESA. Almost all the attention instead goes to section 7’s prohibition on federal actions likely to “jeopardize” listed species and to section 9’s take prohibition. On paper, the adverse modification prohibition looks powerful, but discussion of it is rare enough that one might ask why anyone cares about critical habitat at all.
Several years ago, I started a research project that tried to make sense of this conundrum. My goal was to figure out the extent to which the Fish and Wildlife Service and the National Marine Fisheries Service are actually using the adverse modification prohibition to protect species. I also wanted to understand how else habitat does, or doesn’t, receive regulatory protection under the ESA, and what actually happens in section 7 consultations. This Friday, at a conference on Capitol Hill co-sponsored by the Environmental Law Institute and the Vanderbilt Law Review, I’ll be talking about the results. Three experienced ESA attorneys—Deputy Interior Secretary David Hayes, Defenders of Wildlife Vice President for Conservation Law Michael Senatore, and Hunton and Williams Counsel Andrew Turner—will then comment on the paper.
In addition to my talk, the conference features two other papers. One, co-authored by Ian Duncan and fellow CPR scholar David Adelman (both at the University of Texas), addresses liability issues associated with carbon sequestration. The other, by Stanford’s Buzz Thompson, considers whether the Coastal Zone Management Act could provide a useful model for federal legislation promoting integrated water resource management. If you’ll be in DC on Friday, I hope you’ll check it out (RSVP). The proceedings also will be viewable online.
Dave Owen, CPR Member Scholar; Associate Professor of Law, University of Maine School of Law. Bio.
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