February 22, 2013

CBD: Apparently, the C doesn't stand for clarity

By Jonathan Wood Attorney

A letter from CBD, and other groups, to the Departments of Interior and Commerce urges the withdrawal of a draft policy that would adopt an interpretation of “significant portion” for purposes of ESA listing decisions.  Under the ESA, a species can only be listed if it is in danger of extinction, or likely to become endangered, throughout all or a “significant portion” of its range.  The draft policy explains that the phrase is not defined by the ESA, is ambiguous, and has not been applied consistently in past agency decisions.  Without a consistent definition of “significant portion,” agency decisions are more likely to be arbitrary or based on the whims of agency officials.  The government argues that the draft policy will ensure that these decisions are based on science.

CBD objects to the new policy, but it offers no solution to the problem:

As proposed, the draft policy will not provide meaningful protections to species that are threatened or endangered in portions of their range. … As an alternative, we strongly support an approach that protects wide-ranging species throughout all significant portions of their current and historic range, an approach that would align with the ESA’s central goal of preserving the ecosystems upon which threatened and endangered species depend.

CBD’s objection that the policy may not protect animals that are threatened in some portion of their range excises “significant’ from the statute.  And, it’s “alternative” offers no clarification on how the ambiguous phrase should be interpreted.  Also, the government has answered CBD’s historic range argument.  In a 2007 memo, the Department of Interior explained that this “historic range” theory can’t be squared with the present tense of the word “is” and the 9th Circuit’s contrary decision was based on an apparent misquotation of the statute. The ESA imposes regulations that are too burdensome for the rule of law to permit its scope to remain undefined, as CBD appears to prefer.

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