January 30, 2012

Rep. Markey gets it wrong

By Damien M. Schiff Senior Attorney

Last month, the United States Fish and Wildlife Service and the National Marine Fisheries Service issued a draft joint policy statement on how the agencies would interpret the phrase “significant portion of its range” as used in the Endangered Species Act.  (PLF submitted comments on the proposal last week.)  Now, one of the reputedly greenest members of Congress and the current Administration’s closest allies, Representative Edward Markey of Massachusetts, has sent a letter of protest to the Director of the Fish and Wildlife Service, arguing that the proposed policy sets the standard too high for protecting endangered species.  Not quite.

First, a bit of background.  The ESA authorizes the protection of species if they are sufficiently threatened throughout “all” or “a significant portion of [their] range.”  The Services’ original interpretation of that phrase was that a portion of a species’ range is significant only if the threats to the species in that portion of its range are such that the entire species is in danger of extinction.  The Ninth Circuit in Defenders of Wildlife v. Norton rejected that interpretation, reasoning that it would render the “significant portion of its range” language superfluous (because an area would only be significant if the species were threatened range-wide, a situation already addressed by the power to list species in danger of extinction throughout “all” their range).  The Interior Department Solicitor then issued a legal memorandum offering another interpretation.  That has since been withdrawn and we now have the Service’s proposal.

Rep. Markey’s letter makes three main criticisms of the draft policy.  In my view, none of those criticisms is convincing.  First, Rep. Markey objects that the Services’ new proposed interpretation of “significant portion”—“a portion of the range of a species is ‘significant’ if its contribution to the viability of the species is so important that, without that portion, the species would be in danger of extinction”—makes the same error that the Ninth Circuit noted in Defenders of Wildlife, namely, conflating “all” with “significant portion.”  I think not.  The distinction is that, under the old interpretation, a portion of a species’ range would become sigificant only at the point that the threats to the species in that portion of its range made, at that time, the species threatened throughout all its range.  In contrast, the Services’ new proposal allows listing before the rangewide effects of those threats are actually felt.  That is, under the new proposal, a species can be doing poorly in one portion of its range, be doing well in all other portions, and still qualify for listing based on the threats to the species in that one portion, so long as the extinction of the species in that one portion would threaten the species rangewide.  Thus, the difference between the two interpretations is that, under the new version, the Services would be able to list sooner rather than later.  Surely, that’s a result that Rep. Markey should be in favor of.

Second, Rep. Markey contends that, under the new proposal, the bald eagle could never have been listed.  His argument is based on the fact that the eagle never needed protection in Alaska, where it is plentiful, but did need it in the lower 48 states.  Under the new proposal, if the eagle could survive in Alaska without its range in the lower 48, then it would not have qualified for listing.  The problem with Rep. Markey’s analysis is that it ignores the Service’s power to list “distinct population segments” of species.  It doesn’t take much effort to imagine the Service crafting a DPS of the bald eagle for the lower 48 states, if it had been unable to list the eagle based on the lack of “significance” of that portion of the eagle’s range to its viability rangewide.

Third, Rep. Markey criticizes the proposal’s eschewing of historic range in making listing determinations.  The trouble here with Rep. Markey’s analysis is that it ignores a fine but important distinction between crediting historic (and now lost) habitat per se, and simply taking into account lost habitat when determining a species’ current and future status.  As the draft policy explains, “[l]ost historical range may, however, be an important factor in evaluating the current status of the species,” where, for example, “loss of historical range is so substantial that it undermines the viability of the species as it exists today.”  Thus, the Services do take lost habitat into account, to the extent that such lost habitat affects the species’ current and future status.  To credit Rep. Markey’s view would mean that thousands upon thousands of species would now qualify for listing, even though they are nowhere near going extinct, simply because they have lost a certain amount of habitat.

Don’t get me wrong.  There are plenty of problems with the Services’ proposal, which PLF’s comments highlight.  But the problems that Rep. Markey asserts are not in the proposal.

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