June 01, 2015

The Increasing Influence of Endangered Species Act Consultation on Environmental Rulemaking

Andrew Turner, Kristy Bulleit, and John Henson

Federal environmental rulemakings increasingly are undergoing—and in recent cases have been heavily influenced by—formal Endangered Species Act (ESA) § 7 consultation. ESA Section 7(a)(2) consultations require federal agencies to ensure, through consultation with the U.S. Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) as appropriate, that any action a federal agency authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. 16 U.S.C. § 1536(a)(2). This requirement applies to a broad range of agency actions, including the promulgation of regulations, in which the “action agency” has discretionary involvement or control. 50 C.F.R. § 402.03. An action agency must engage in either “informal” or “formal” consultation with the Services in order to satisfy ESA Section 7(a)(2) requirements unless the action agency concludes that its proposed action will have no effect (for good or ill) on a listed species or designated critical habitat. 50 C.F.R. § 402.13; 402.14; 16 U.S.C. § 1536(a)(2)-(3). Otherwise, if the action “may affect” listed species or designated critical habitat, consultation is required. Id. at § 402.14.

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