October 24, 2008

Contemplated legal challenges to amendments to ESA regs

By Contemplated legal challenges to amendments to ESA regs

On the Natural Resources Defense Council blog, Andrew Wetzler writes that the proposed revisions to the ESA Section 7 regs may be subject to procedural challenge.  Wetlzer speculates that the regulations would have a significant impact on the environment, and listed species and their habitat in particular.  That fact, if true, would trigger the requirement for an environmental impact statement under the National Environmental Policy Act, and a biological opinion under Section 7 of the ESA.  Yet Wetzler notes that, given the short comment period on the proposed regs, and the fact that the Bush administration wants all proposed regs finalized by November 1, it's likely that any EIS or bi-op for the regs will be inadequate (or that simplified substitute documents, such as a "Finding of No Significant Impact" and a Letter of Concurrence").

The difficulty with Wetzler's analysis is that the ESA revisions are justified by the agency precisely on the grounds that they will have little conservation impact, but a significant bureaucratic trimming impact.  In other words, the Service says that the revisions are needed to avoid a lot of time and money and effort wasted in analyzing projects that will have little or no effect on the environment.  And to the extent that one might challenge the regulatory revisions dealing with speculative impacts (especially as they relate to estimating the impact of greenhouse gas emissions), if the agency can establish that the estimation of such impacts truly is speculative, then it is hard to imagine how an EIS or a bi-op would be required to implement those regulatory revisions.

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