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.
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Dave Owen | March 20, 2013
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. […]
Rena Steinzor | March 19, 2013
On Friday, the White House Office of Information and Regulatory Affairs (OIRA) returned a proposed rule on air pollution standards for oil refineries to EPA, insisting that the agency complete “additional analysis” before moving forward. EPA’s efforts to reduce hazardous pollutants from these facilities will be delayed for months or likely years. And that additional analysis? […]
Emily Hammond | March 15, 2013
The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA). But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the […]
Matthew Freeman | March 14, 2013
This morning, CPR President Rena Steinzor testifies before the House Committee on Small Business's Subcommittee on Investigations, Oversight and Regulations. From the witness list, it would appear that this'll be another in a series of hearings structured by House Republicans to inveigh against the regulations that protect Americans from a variety of hazards in the air […]
Ben Somberg | March 13, 2013
A quick update on the OIRA leadership front: Dominic Mancini has been named the Deputy Administrator of OIRA, and now “leads” the office from this position, an OMB spokesperson says via email (The Hill was up with this news a bit earlier today). Boris Bershteyn’s appointment as Acting Administrator has ended, the spokesperson said. Bershteyn […]
John Echeverria | March 13, 2013
Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture – a complicated and relatively little-noticed case that could have important implications for the direction of “takings” doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected […]
Thomas McGarity | March 12, 2013
Next Tuesday, the Supreme Court will hear oral arguments in Mutual Pharmaceutical Co. v. Bartlett, a case that raises once again the troubling question of whether federal regulatory agencies should trump local juries in common law tort actions. The precise question at issue is whether the fact that the federal Food and Drug Administration (FDA) […]
Ben Somberg | March 11, 2013
Last week Rena Steinzor wrote here that the Acting Administrator of the Office of Information and Regulatory Affairs (OIRA), Boris Bershteyn, was approaching a time limit under the Federal Vacancies Reform Act. That law stipulates that a temporary appointee in a Senate-confirmed position can generally serve for no more than 210 days, unless a nomination […]
Michael Patoka | March 8, 2013
A report released yesterday by the Southern Poverty Law Center (SPLC) and the Alabama Appleseed Center for Law and Justice offers a devastating glimpse into the world of Alabama poultry workers. Forced to hang, fold, gut, or slice more than 100 carcasses each minute, these workers suffer injuries at astounding rates: of the 302 workers […]