The "Institutionalization of Caution" Under § 7 of the Endangered Species Act: What Do You Do When You Don't Know?

Oliver A. Houck

Oliver A. Houck was formerly the General Counsel and Vice President for Conservation of the National Wildlife Federation and is currently Visiting Professor of Law at Tulane Law School. Mr. Houck gratefully acknowledges the assistance of Patrick Parenteau and Scott Feierabend of the National Wildlife Federation in the preparation of this article.

[12 ELR 15001]

Section 7¹ of the Endangered Species Act (ESA) is the conscience of contemporary environmental law. It requires us to look anotherr form of life in the eye and make the explicit decision that this line of evolution should no longer continue. Decisions like this, eye-to-eye, are not an easy business. It is considerably easier not to look and not to know.

To be sure, there is more to the ESA than § 7. Originally enacted in 1966 and borrowing liberally in subsequent amendments from otherr wildlife statutes, the Act now embraces a broad range of provisions to promote species diversity and survival.² The distinctive feature of the Act, however, and the major source of its effectiveness and its controversy within the United States, is § 7. This provision, rather sensibly to some and quite unbelievably to otherrs, restrains federal agencies from taking actions that destroy endangered species or their critical habitat. The only United States Supreme Court decision yet to interpret this section has characterized its provisions as "the institutionalization of caution."³

The controversy surrounding § 7 may seem out of proportion to its impact. It is difficult to identify a single, major development in the United States which has been stymied by § 7 since its addition to the Act in 1973.⁴ On the otherr hand, because federal actions include licenses, permits, and otherr approvals it is also difficult to identify a single, major development in the United States — no matter whether privately financed — which is not potentially subject to its reach.⁵ This perception of § 7 as a threat to the essential development of the United States was heightened by two early lawsuits pitting federally-sponsored dams against the endangered whooping crane⁶ and the snail darter.⁷ Fortunately for the detractors of the Act and unfortunately for its supporters, the obscure and unattractive darter captured the headlines and set the stage for the ensuing congressional response.

The response came with amendments in 1978⁸ and again in 1979⁹ which, if nothing else, set up a far more elaborate procedure for the application of § 7 to federal actions and for their potential exemption. These new requirements have now been applied administratively to a wide range of federal actions.¹⁰ A handful of these applications have been tested by the courts. Federal regulations are in effect and are guiding the consultation process.¹¹ From this experience we have a basis to examine how the Act is working and to give particular attention to a problem which has already surfaced and which can be expected to persist: the effect of § 7 when sufficient information on the impact of a proposed project is simply unavailable. What do you do when you don't know?

Information and the Consultation Process

Consultation is at the heart of § 7. It sets the process in motion and provides the information necessary for the ensuing critical decisions: whether the project may proceed as planned, whether it should be halted, whether it should be modified to avoid impacts on a given species, or whether these impacts should be accepted and an exemption granted permitting the project to proceed. Congress has thus required all federal agencies to consult with the appropriate wildlife agency to insure that any proposed action is not likely to jeopardize the continued existence of an endangered species or destroy its critical habitat.¹²

An understanding of the sequence of events in consultation is useful.¹³ Consultation is triggered when a federal [12 ELR 15002] agency, the "action agency," proposes an activity which could jeopardize a listed endangered or threatened species or modify its critical habitat.¹⁴ The action agency requests information from the appropriate wildlife agency as to whether a listed species "may be present."¹⁵ If so, the action agency has 180 days to complete a "biological assessment."¹⁶ Upon receipt of the assessment, the Secretary has 90 days to prepare a biological opinion describing how the action affects the species or its critical habitat, and suggesting reasonable and prudent alternatives which would avoid jeopardy.¹⁷

The objective of consultation, therefore, is knowledge — to find out how an action will affect a species and whether adverse effects can be avoided. The product of this fact-finding process, and the evidence of its success, is the Secretary's biological opinion. If the Secretary finds that the action is not likely to jeopardize an endangered species, the action may go forward. If the Secretary predicts a likelihood of jeopardy, the action agency, applicant, or affected state may initiate the exemption process.¹⁸ For the great majority of agency actions there will be no effect on endangered species and no opinion will be necessary.¹⁹ For the majority of those remaining actions which might affect a species, the impact will be negligible and the biological opinion will so conclude.²⁰ These are the easy cases under § 7; they are also the ones for which no § 7 was ever needed.

For those instances where the impact on a species is more substantial, however, the biological opinion suddenly becomes a tall order. Actions totally obliterating the known habitat of a species — such as the Tellico Dam — are exceptionally rare. Virtually every otherr controversy which has arisen under the Act has involved less direct impacts, and species which exist beyond the affected area. Predicting the effects of water depletions on one staging area for the whooping crane,²¹ of off-shore drilling on a migratory route of the bowhead whale,²² of logging roads on isolated groups of grizzly bear,²³ can be judgment calls of life-or-death significance for major projects on the one hand and for prominent wildlife species on the otherr. The 90-day timetable for preparation of a biological opinion would be minimal with the best of information at hand. Even with well-known species, however, the necessary information may not be available. Wildlife biologists have been studying the whooping crane, the grizzly bear, and the bowhead whale for the past several decades; essential information on them was nonetheless lacking in each of the above-cited cases. Endangered species, however well known to the public, are almost by definition difficult to approach, to experiment with, and to understand well enough to predict. How much disturbance disloactes a grizzly? How much oil clogs the sieve-like teeth of the bowhead whale? At what season? At what age? With what repetition? For how long? There are no general answers. The search for specific answers must often begin with the specific proposal.

For the lesser studied species, which are the majority of those on the endangered list, the process begins even closer to square one. Ninety days following the initiation of consultation under the ESA the best the Secretary will be able to opine is that he does not know what the impact will be; he will have insufficient information to [12 ELR 15003] determine whether an action "is likely to" jeopardize the species. Whan then? What course of conduct does the ESA prescribe?

Limitations on Agency Action: §§ 7(a)(2) and 7(d)

The base-line course of conduct for each agency under § 7 is that contained in § 7(a)(2): to ensure that its action "is not likely to jeopardize" a listed species or adversely modify its critical habitat.²⁴ This duty obtains twenty-four hours a day. It may arise even prior to the commencement of consultation and it continues for the life of a project, potentially long after consultation is complete.²⁵ It is relieved only by an exemption secured through § 7(h).

It was early recognized, however, that effective consultation requires an additional limitation on agency action, lest an action agency discover only at the point of completing its project that jeopardy will occur, or the Secretary discover that his suggested alternatives are precluded by investments in the most damaging option. The concept of limiting agency action during consultation was developed in regulations promulgated by the Departments of the Interior and Commerce regulations promulgated after the 1973 amendments.²⁶ The 1978 amendments which followed the Tellico Dam decision took this action-limiting language verbatim from these regulations to create a new § 7(d). The proscription of § 7(d) is straightforward:

After initiation of consultation required under subsection (a)(2), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable committment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2).²⁷

Section 7(d), then, is more a restraint than a bar: it seeks to protect the integrity of the fact-finding process and the utility of its results.

Where a biological opinion meets the standards of § 7(b) — assessing the impact and alternatives on the basis of adequate information — the effect of the opinion on the limitations contained in § 7(a)(2) (an agency will "insure" against jeopardy) and § 7(d) (an agency will avoid "irreversible and irretrievable" commitments) is plain. Once the fact-finding is completed, § 7(d) is released. If no jeopardy is found there is no § 7(a)(2) barrier and the action goes forward. If jeopardy is found § 7(a)(2) controls and the action will in all likelihood move to the exemption process.²⁸

An opinion based on insufficient information, however, is the rub. Does § 7(a)(2) prohibit agency action under these circumstances because the agency cannot "insure" that its proposal is not likely to jeopardize the affected species? Does § 7(d) preclude commitments of resources towards the project while the agencies develop more adequate information? What kinds of commitments would be precluded, and for how long?

These are the operative questions. Their rational resolution will involve a balance which does not arrest all new action until scientific certainty on their implications for listed species is reached. Neither should it risk exterminating a species because we were unable to find adequate answers in the ninety days available under § 7(b).

The OCS Leasing Cases

The first cases to interpret the new provisions of the 1978 amendments pitted endangered whales against oil leasing in the offshore waters of the Georges Bank and Beaufort Sea.²⁹ The impacts of oil development on the whale species were not well identified in either case. The biological opinions reflected these uncertainties. The First Circuit and the District of Columbia Circuit Courts of Appeals nevertheless allowed the leasing activities to go forward. The relevant question is, how far did they open the door for otherr federal actions with unknown impacts on endangered species?

The most compelling answer looks to the Outer Continental Shelf Lands Act (OCSLA),³⁰ which provided the counterpoint to the ESA in each opinion. The OCSLA was amended in 1978 "to promote the swift, orderly and efficient exploitation" of outer continental shelf (OCS) oil.³¹ As amended the Act regulates private off-shore oil and gas development in three stages: leasing (pre-exploration), exploration, and production.³² Each stage is separately reviewed and approved by the Department of the Interior.³³ Leases may be subsequently cancelled for environmental reasons, including impacts on endangered species; lessees under these circumstances are, however, entitled to compensation.³⁴ The OSCLA also requires the use of "best available and safest technologies economically feasible" to prevent oil pollution.³⁵

The OCSLA/ESA decisions in both circuits were predicated on this structure and this legislative intent. Recognizing the OCSLA's "national policy favoring expeditious development of energy resources,"³⁶ the First Circuit, in Georges Bank, found the Secretary of the Interior's continuing powers and obligations under the OSCLA, through which he could respond to ESA problems [12 ELR 15004] as they were discovered, to be "wide-ranging, limited only by discretion and good faith."³⁷ The District of Columbia Circuit, in Beaufort Sea, similarly found in the OCSLA a mandate for "pumping oil,"³⁸ indeed a "Congressional willingness to accept some of the risks of oil and gas production."³⁹ Further, "the ESA mandate that no endangered life be jeopardized must be measured in view of the full contingent of OCSLA checks and balances," such as the Secretary's determination on acceptable drilling technologies, a "perfect example of the future-oriented features of the Secretary's on-going responsibility to protect the environment" under the OCSLA.⁴⁰ Persuasive to both courts was the fact that under the OCSLA, which had been passed contemporaneously with the ESA amendments, development would proceed in carefully-reviewed stages and activities under the lease could be modified, suspended, or the leases themselves cancelled should conflicts with endangered species later become apparent. Viewed in this light, it would be a tenuous argument that extended the holdings of these cases to agency actions under statutes less contemporaneous than the OCSLA, carrying a less explicit national policy override, and with less flexibility to deal with endangered species problems as they arise.

Perhaps for the reason that it involved an appeal from the denial of a preliminary injunction, the First Circuit's opinion dealt with the merits only indirectly and offers little useful analysis of §§ 7(a)(2) and 7(d). The Beaufort Sea litigation on the otherr hand provoked lengthy opinions at the trial level and on appeal, each of which had to come to grips with the consultation provisions of § 7. Their analyses are certain to be refered to in future litigation, administrative rulemaking, and legislative proposals.⁴¹

In the district court decision in Beaufort Sea, Judge Robinson began by defining the scope of the "agency action" he was reviewing under the ESA.⁴² Specifically rejecting a request to limit the scope of the action to the first step, the leasing stage, the court looked to TVA v. Hill and the subsequent history of the 1978 amendments to find that "the ESA requires that agency action be defined broadly," to include "the lease sale and all resulting activities," i.e., exploration and development.⁴³ The ESA's necessary "caution can only be exercised if the agency takes a look at all the possible ramifications" of its action. "Otherwise, any statute providing an agency with maximum flexibility and planning ability — as the OCSLA does — would also tacitly relieve that agency from much of the scrutiny required by the ESA."⁴⁴

The court then turned to § 7(b). Here it faced two questions: first, whether the National Marine Fisheries Service's (NMFS's) correspondence with the action agency constituted a biological opinion at all, and second, what a biological opinion should contain under the ESA where adequate information is unavailable.⁴⁵ On the first question, it found that a series of letters between NMFS and Interior concerning impacts on the bowhead whale were insufficient under § 7(b); they simply did not contain the analysis § 7(b) requires.⁴⁶ On the second question, however, the court relied on legislative history behind the 1978 amendments to find that a biological opinion may issue on the basis of inadequate information. "Consultation must also be continued, however, until a comprehensive biological opinion satisfying the mandate of section 7(b) is developed."⁴⁷ During this consultation "§ 7(a)(2) and § 7(d) limit the intermediate steps an agency may take when adequate knowledge is unavailable.⁴⁸

The court next addressed the application of § 7(d). First, was it to be applied at all after a biological opinion, though based on inadequate information, has issued? As noted above, the court ruled that since consultation continues, the restraints of § 7(d) continue accordingly. Second, what are the "irreversible and irretrievable" commitments which § 7(d) precludes? Here the court recognized the intent of this section "to prevent Federal agencies from 'steamrolling' activity in order to secure completion" of their projects.⁴⁹ Such commitments as "large sums of money in any endeavor" would be precluded unless they were "salvageable (i.e., could be applied to either an alternative approach to the original endeavor or to anotherr project)."⁵⁰ This said, the court asked a third question: what degree of risk is required to trigger § 7(d)'s prohibitions against irreversible commitments? In response, the court developed a test of its own: a "reasonable likelihood" that the project, at any stage of development, would violate § 7(a)(2).⁵¹ Having developed this "reasonable likelihood" test, however, the court did not attempt to apply it because it found the commitments involved at this stage of the leasing to be "salvageable," and thus not "irretrievable" — the results of the exploration would be "useful for otherr Arctic OCSLA activities."⁵² A § 7(d) conflict, therefore, was avoided.

[12 ELR 15005]

The court turned last to the otherr limitation on agency action, § 7(a)(2), and to its "reasonable likelihood" test. While it agreed that adequate information necessary to insure aainst jeopardy did not exist, it found "a reasonable likelihood of compliance at the present time."⁵³ Thus, given the Secretary's "broad powers under the OCSLA to insure that all Federal laws are complied with,"⁵⁴ there was no § 7(a)(2) violation.

The D.C. Circuit covered the same ground in longer strides, and its rationale is correspondingly harder to follow. On the question of the scope of the agency action to be considered, the court found itself in "qualified agreement with the district court's ruling that a 'biological opinion' may not deal exclusively with any one particular stage of an outer continental shelf project."⁵⁵ Nevertheless, the circuit court found the OCSLA's "graduated" approach and the Secretary's "strict controls" at each stage to "qualify somewhat the broadest practical effect the term [agency action] could have."⁵⁶ Without specifying exactly what its "qualified" concept of agency action might be, the court instead looked at the NMFS documents and held that "the Secretary did perform a comprehensive analysis of all the ramifications of the lease sale."⁵⁷ The court then concluded that the NMFS resports constituted a biological opinion within the meaning of § 7(b)⁵⁸ The § 7(a)(2) limitation was dispatched as easily; the court found no jeopardy because the Department of the Interior had incorporated NMFS's suggested jeopardy-avoiding mitigation measures in its notice of sale.⁵⁹ The court was also influenced in its consideration of jeopardy by the absence of a critical habitat designation, distinguishing the case from TVA v. Hill; "the Bowhead's relationship to the Beaufort Sea was not declared by the Secretary of the Interior to be so precarious."⁶⁰

The problem of a § 7(d) violation remained. The court endorsed the findings of the district court that no "irreversible or irretrievable commitment of resources" had been made. Its analysis did not include, however, the "alternative uses" of the investment on which the district court relied; instead, the potential for cancellation of the project appears to have provided it with "reversibility," since "the oil companies are prepared for the risk of losing the resources which are at stake in the lease sale."⁶¹

Several conclusions can be drawn from a point-by-point analysis of the Beaufort Sea opinions on the scope of consultation under § 7 and the application of §§ 7(a)(2) and 7(d) when insufficient information is available:

Scope of Agency Action. Both courts recognized that the scale of the agency action which must be evaluated under the ESA transcends segmented actions, even where segmentation is as explicitly authorized as under the OCSLA.⁶²

Scope of the Biological Opinion. The scope of the biological opinion must match the scope of the agency action as best it can. The necessary flexibility comes not by segmenting the opinion but rather by acknowledging information deficiencies, making the best estimate possible, and continuing the biological investigation.

The Effect of § 7(a)(2). Where a biological opinion is based on inadequate information, § 7(a)(2) requires a "best shot" at the likelihood of jeopardy.⁶³ In Beaufort Sea, the wildlife agency saw no such likelihood.

The Effect of § 7(d). Where a biological opinion is [12 ELR 15006] based on admittedly inadequate information, consultation continues, and with it the strictures of § 7(d). As § 7(d) continues, however, the "irreversible or irretrievable commitment" of resources it precludes requires additional definition: whatever such commitment may be in the abstract, the investment in exploratory drilling under the OCSLA was found retrievable by one court because it had alternative uses, by the otherr because its loss was a risk which the proponents were presumably willing to accept.

More recently, the ESA has once again come up against the OCSLA, this time in the Santa Maria Basin near the State of California. The central issues in California v. Watt⁶⁴ concerned interpretations of the Coastal Zone Management Act,⁶⁵ the National Environmental Policy Act,⁶⁶ and the OCSLA. Challenges were also based, however, on §§ 7(b) and 7(d) of the ESA. At issue under § 7(b) was a biological opinion which, recognizing that subsequent development and production activities could have aneffect on endangered sea otters, deferred a definitive evaluation of these effects until the types of operations which would take place were better known. The court approved the opinion without discussion, citing as precedent the Georges Banks and Beaufort Sea opinions.⁶⁷ The citations are at best optimistic. Neither Georges Banks nor Beaufort Sea dealt with a situation where the possibility of ultimate jeopardy was acknowledged. Indeed, once the possibility was recognized, a "best guess" determination of its "likelihood" was what the Beaufort Sea opinions held was required. The critical factor in this most recent OCSLA case was a now-familiar one; the unique segmentation, review, and safeguard provisions of the OCSLA.⁶⁸ Nonetheless, the rather casual treatment of the § 7(b) issue is troublesome. If agencies may avoid considering bad news to endangered species in the future by considering only the good news today, then at some point they will present the courts with new conflicts between projects far into completion and endangered species. The alternative, of course, is to read § 7(d) to limit those commitments in the meantime.

The second ESA issue in California v. Watt was the application of § 7(d). The court found the leasing actions not to be irreversible or irretrievable commitments within the meaning of this subsection, citing again without additional discussion the Georges Bank and Beaufort Sea opinions.

In summary, the OCSLA opinions are special cases under specialized legislation. To the extent they provide guidance on the what-do-you-do-when-you-don't-know question, they acknowledge a need to look for the long-range impacts on endangered species. A biological opinion based on inadequate information may nonetheless issue, and if one does and jeopardy is predicted as "unlikely" some commitments (exploration leases under the OCSLA, at least) may go forward, but within the continuing context of § 7(a)(2), and an imprecisely defined § 7(d).

Beyond the OCS Cases: The § 7(d) Obligation

The great range of federal construction, permitting, leasing and grant actions take place under statutes which do not carry the imperative of the OCSLA, and which provide far less explicitly for independent review at each stage of development and for project termination if adverse environmental effects — such as jeopardy to an endangered species — are found. To predict how far forward into uncertainty these actions may go when an endangered species is at stake requires a broader examination of the ESA and its case law.

The ESA does not speak directly to the inadequate-information question. The most relevant statements are found in the legislative history of the 1979 amendments, which in pertinent part changed the mandate of § 7(a)(2) from ensuring that actions "do not" jeopardize, to ensuring that they "are not likely to" jeopardize.

The conference report's explanation of the change is, at best, confusing.⁶⁹ The report begins with the reassurance that it was simply adopting the "likely to" test then in use by the United States Fish and Wildlife Service (USFWS) and the NMFS, thus bringing "the language of the statute into compliance with agency practice, and judicial decisions."⁷⁰ The report emphasizes the importance of the biological opinion, concluding that "(t)he amendment would not alter this state of the law or lessen in any way an agency's obligation under Section 7(a)(2)."⁷¹ The report goes on, however, to identify an additional purpose for adopting the "likely to" standard, to provide for a situation where an "agency cannot guarantee with certainty" that its action will not jeopardize a species:

The amendment will permit the wildlife agencies to frame their 7(b) opinions on the best evidence that is available or can be developed during consultation. If the biological opinion is rendered on the basis of inadequate information then the Federal agency has a continuing obligation to make a reasonable effort to develop that information.⁷²

So far, so good. This is the genesis of the "best guess" opinion discussed in Beaufort Sea. If the information is inadequate, the biologists may still take their best shot — "is likely to" or "is not likely to" — and coninue the inquiry.⁷³

The next paragraph of the report plants the problem:

[12 ELR 15007]

This language continues to give the benefit of the doubt to the species, and it would continue to place the burden on the action agency to demonstrate to the consulting agency that its action will not violate Section 7(a)(2). Furthermore, the language will not absolve Federal agencies from the responsibility of cooperating with the wildlife agencies in developing adequate information upon which to base a biological opinion. If a Federal agency proceeds with the action in the face of inadequate knowledge or information, the agency does so with the risk that it has not satisfied the standard of Section 7(a)(2) and that new information might reveal that the agency has not satisfied the standard of Section 7(a)(2).⁷⁴

It is the effect of this paragraph which is most in doubt. Read literally, the first sentence seems to prohibit agency action where the information is insufficient: the species retains "the benefit of the doubt," and the action agency the "burden … to demonstrate" no likelihood of harm. The final sentence, on the otherr hand, contemplates an agency going forward "in the face of inadequate knowledge or information," running "the risk that it has not satisfied the standard of Section 7(a)(2)." The question becomes how far this last sentence opens the door to federal action where information is insufficient to form a definitive biological opinion.

Unfortunately, the conference report is barren of relevant discussion.⁷⁵ A project opponent could take the position that no action is allowed, and rely on, in effect, every word in the report except for the final sentence of this paragraph. To "run the risk" of not satisfying § 7(a)(2) means, viewed in this light, running the risk of an immediate lawsuit on the agency's failure to "insure" against jeopardy. This position has the advantage of giving the species "the benefit of the doubt." On the otherr hand, a project proponent could take the position that all action is allowed — relying on the final sentence. Once the wildlife agency has made its best guess, if the guess does not predict jeopardy then the consultation is over and the action agency free to proceed. If jeopardy turns up later, that's the time to deal with it.

Before turning to an analysis of otherr authority bearing on the question, the dispute can be narrowed. Were the USFWS or the NMFS to express their "best guess" that, although information is insufficient, an action "is likely to jeopardize," the consequence should be clear. Section 7(a)(2) requires that an agency "insure" its action is not likely to jeopardize. Unless the action agency disputes the "best guess" opinion, it would appear to be stuck with § 7(a)(2)'s mandate. Further action is foreclosed; application for an exemption is in order.

The problem can be narrowed further. For a variety of reasons, the wildlife agency may be unwilling in the face of uncertainty even to make a guess at jeopardy.⁷⁶ The proposed action may be one, for example, which would threaten the entire remaining population of a species, calling for maximum caution. Or, in anotherr instance, the missing information for an adequate biological opinion may be forthcoming from studies to be concluded in a matter of months, leaving little reason to guess and every reason to wait. These circumstances, where an opinion issues without a guess at jeopardy, represent the clearest cases for the continuing application of § 7(d). Irreversible commitments should not be made at least until a competent prediction is available on the effects of the proposed action.

The problem, then, boils down to the situation where, lacking adequate information, the wildlife agency offers its "best guess" that jeopardy is not likely to occur. In such cases is the action agency barred from going forward for its failure to "insure" against jeopardy, or is it permitted to go forward with all commitments subject only to the prospect that information later developed may show jeopardy? Or is there a middle ground?

If we take the conference report as controlling, a risky proposition, the first answer — complete prohibition — seems inappropriate. The intent of the Congress, or at least that of the report, was to eliminate an automatic negative opinion — and therefore an automatic project halt — where an agency "cannot guarantee with certainty" the absence of jeopardy. By allowing a "not likely to" guess, some action is intended to proceed.

The conclusion that all agency action may proceed under these circumstances relies primarily on the report's final sentence, but it has support elsewhere. Its proponents can point to two court decisions treating insufficient-information-but-not-likely-to-jeopardize facts: Sierra Club v. Froehlke (Indiana bat)⁷⁷ and Cabinet Mountains Wilderness v. Peterson (grizzly bear)⁷⁸. In Sierra Club, the impact of a dam project on caves used by several colonies of endangered bats was at issue. The Department of the Interior was equivocal, finding "adverse impacts" and requesting a moratorium on the project pending further studies. Reviewing the Corps of Engineers' decision to proceed notwithstanding Interior's reuest, the Court found it reasonable given the large bat population (estimated at 700,000) and the maximum predicted losses from the dam (estimated at 5,000).⁷⁹ The reported facts in Cabinet Mountains are more sketchy, but involved the impacts of mining exploration on an allegedly "small, isolated population of approximately a dozen grizzly bears."⁸⁰ Interior's biological opinion was again equivocal, recommending mitigation measures "to reduce the negative environmental effects" of the project — measures which were incorporated into the project. Under these circumstances, the court upheld the Forest Service's decision to proceed.⁸¹

Proponents of a full-steam-ahead approach can also [12 ELR 15008] point to the legislative history behind the 1978 amendments as evidence of a change in the attitude of the Congress. That year, in response to TVA v. Hill, Congress enacted a host of modifications in order "to introduce some flexibility" into the Act.⁸² To proceed in instances where the best guess is that jeopardy is "not likely" to occur is certainly consistent with the more recent philosophy of "flexibility" in the Act.

There are difficulties, however, in accepting a full-steam-ahead approach, not the least of which are the guiding purposes and provisions of the ESA itself. The prohibitions of § 7 were not arrived at lightly. They were preceded by endangered species legislation which, in its initial version, required federal agencies to avoid jeopardy only "insofar as is practicable and consistent with their primary purposes."⁸³ This flexible concept was retained in the amendments of 1969.⁸⁴ In 1973, it was consciously and deliberately rejected by the Congress and replaced by § 7⁸⁵ This history was persuasive to the Supreme Court, if not indeed controlling, in TVA v. Hill.⁸⁶ The majority opinion found it so forceful as to override the traditional balancing of equities and to require injunctive relief, notwithstanding the stage of completion of the Tellico Dam project and the stream of congressional appropriations the Dam had received since the problem had surfaced. "One would be hard pressed to find a statutory provision whose terms were any plainer … This language admits of no exception."⁸⁷

Today, of course, the language does. Section 7 now includes three major qualifications, which post-date TVA v. Hill. Two appear at the beginning of the process, one limiting the designation of critical habitat for endangered species,⁸⁸ and the otherr raising the standard for jeopardy ("is likely to").⁸⁹ The third qualification, the exemption process, comes at the end.⁹⁰ Additionally, TVA v. Hill involved facts of apparently certain jeopardy: the affected stretch of river was the only known habitat of the snail darter. These grounds distinguish TVA from the "insufficient-information-but-not-likely-to" problem at hand. They do not, however, dismiss it. The history of § 7 and intent of Congress with its heavy presumptions in favor of species survival, relied on so heavily by the Supreme Court, remain on the books; the language of § 7(a)(2) itself was modified in 1979 only to raise the threshold showing of harm, not to eliminate its consequences. Further, Congress in 1978 amended the Act to give it "flexibility," but these changes work their leniency before and after the proscription of § 7 itself. Section 7 was not otherrwise affected. Thus, to assert that the conference report nullifies the force and logic of TVA v. Hill does not seem prudent client advice. That decision has much the same legs to stand on.

The case which speaks most directly to the "institutionalization of caution" where information is insufficient is the less-celebrated Nebraska v. Rural Electrification Administration (Grayrocks Dam),⁹¹ decided almost concurrently with the 1978 amendments. The wildlife agency in that case was unable to predict theimpacts of a Wyoming dam on the Platte River which was used, several hundred miles downstream in Nebraska, by the endangered whooping crane. The best guess was "may jeopardize."⁹² In order even to determine likelihood of jeopardy, a three-year study would be required.⁹³ On this basis, a Rural Electrification Administration (REA) project loan and a Corps of Engineers permit were invalidated and enjoined. In speaking of action agencies the court noted that the ESA "places the burden upon agencies … to insure that those programs" will not jeopardize; "the burden is not upon someone else to demonstrate that there will be an adverse impact."⁹⁴ Moreover, "if it has insufficient information to insure that the project will not endanger a critical habitat, it must get that information."⁹⁵ Nebraska v. REA is not cited in the 1979 conference report, and thus cannot be said to have been legislatively overruled.⁹⁶

A final difficulty with a full-steam-ahead approach to a best-guess opinion is its reconciliation with otherr provisions of the ESA. Under § 7(b), the action agency is required to provide the essential information necessary to evaluate the impact of its action on the species. Until sufficient information is provided, that duty continues. But what happens to that duty, as a practical matter, once the agency is free to make unlimited commitments to its project? What incentive would the REA have had, for example, to discover the needs of the whooping crane for the very river REA was in the process of damming, or the Department of the Interior to learn the full needs of the bowhead whale? In the real world, the full-steam-ahead policy goes a long way towards terminating the learning process. Though the success of the Act is predicated on the knowledge and rational assessment of [12 ELR 15009] risks, a premium is placed on ignorance. The less that is known, the more than can be done.

Equally seriously, continuing full-scale commitments when essential information is lacking could defeat the integrity of the exemption process. At the time of an exemption, the commitments towards a project and its stage of completion are an unavoidable factor in the balancing decision.⁹⁷ To say that the project proceeds "at its own risk" under these circumstances, as does the conference report, is somewhat blithe; it would be more accurate to say that the project proceeds at the risk of a later discovery of jeopardy, but with a decreasing risk as the investment are made, the concrete is poured, and the land is cleared, that it will be denied an exemption. This prospect is not an idle one. It was in fact explicitly recognized in the 1979 conference report itself:

The conferees do not believe that any Federal agency or permitee should make any irreversible or irretrievable commitments of resources for the purpose or with the intent of foreclosing otherrwise reasonable alternatives or in order to secure an exemption pursuant to Section 7(h).⁹⁸

How far, then, can an agency proceed in an inadequate-information-but-unlikely-to-jeopardize situation, without running afoul of the purposes of the Act and its provisions which call for insurance that a project is not likely to jeopardize a species, and, if necessary, an evenhanded exemption decision? The answer lies in § 7(d).

Section 7(d) Revisited: Clarifying the Obligation

As we have seen, § 7(d) was added in 1978 to prevent, in the words of one court, "steamrolling" a project towards completion during consultation.⁹⁹ It does not purport to close a project down. It does intend to limit commitments: they shall not be "irreversible" or "irretrievable" with "the effect of foreclosing alternatives."

When do § 7(d)'s limitations begin? The statute is explicit: "(a)fter the initiation of consultation." When do they end? The statute is silent. When should they end? The district court in Beaufort Sea, the only case to address this question, reasoned that, "while a biological opinion can be based on inadequate information, in such cases the obligation to consult continues."¹⁰⁰ Consultation does not end until "a biological opinion, based on adequate information, is written."¹⁰¹ At this point and only then are the § 7(d) restrictions lifted.¹⁰²

This approach makes good sense. It marries the consultation process with its bodyguard, the provisions which were intended to protect the process and its conclusions. From a broader perspective it reconciles the statute's fundamental "institutionalization of caution" with the 1979 amendments and their legislative history. It allows continuing commitments towards an action necessary to develop information, so long as they are not "irretrievable" — a concept in which, as discussed below, there may be considerable play. It forbids commitments which would on one hand lead to the TVA v. Hill specter of an unusable wall of concrete, or on the otherr hand a wall so expensive it will influence the exemption committee to eliminate a species.

Between these two poles, however — the type of information-seeking § 7(d) clearly permits and the type of commitments it clearly forbids — is a gray area of undetermined size. What is an "irreversible or irretrievable commitment of resources" which has the effect of foreclosing alternatives within the meaning of the ESA? The only judicial interpretations since the 1978 amendments come from the OCS cases, in the context of leases for exploratory drilling. The First Circuit in Georges Bank found that the leasing actions were not commitments.¹⁰³ In Beaufort Sea the district court found that virtually identical leases were commitments, but that they were "salvageable" because the exploration findings would have alternative uses.¹⁰⁴ The D.C. Circuit saw in the leases the necessary "reversibility," as "the oil companies are prepared for the risk" of losing their investment in the lease sale.¹⁰⁵ The California v. Watt court simply cited both circuit court opinions and found no commitments.¹⁰⁶ While the 1978 amendments were being debated in Congress, however, Nebraska v. REA was being decided under Interior's "no irretrievable or irreversible commitment of resources" regulations which became the new § 7(d). Faced with insufficient information on the impacts of the dam and a "may jeopardize" biological opinion, the court enjoined the commitments of financial resources to project construction even though the construction did not affect the critical habitat in question.¹⁰⁷ The court reasoned:

Further consideration of [alternatives] is not impossible, [12 ELR 15010] to be sure, but as a practical matter, within the meaning of the regulations, it is foreclosed.¹⁰⁸

From these cases we can draw the following conclusions about the § 7(d) obligation. Commitments to project construction, even where it is not the construction but rather the eventual operation of the project which might lead to jeopardy, are precluded under § 7(d). Commitments towards exploration for a commodity given the national priority of oil and gas under the OCSLA which: (1) are not likely to jeopardize, (2) will yield information of value worth the investment even if the project is aborted, (3) are subject to continuing federal review, and (4) which can be terminated at any time if jeopardy to a species should surface, are not precluded.

In cases to come, however, § 7(d) will have to be interpreted with at least the realism of the Nebraska District Court if it is to safeguard the consultation process and the options for coexistence with endangered species. The practical effect of any commitment of money is to build momentum. The more money spent on any single option, e.g., exploration, site-preparation, access improvements, or planning, the less likely it is that alternatives will be chosen. No single dollar, design blueprint, haul road, or load of cement commits completely, but complete foreclosure is not the statutory test: if an action "has the effect of foreclosing" it meets the test. It is not a test capable of precise definition, short of barring all commitments of resources. Which is to say that its effectiveness will depend on its case-by-case application by the courts. Here courts would do well to examine the commitments and their "effect of foreclosing" as realistically as they would the effects of similar commitments affecting their own habitats, their courthouses, residences, and personal lives;that is no more than we request routinely of juries. Similarly, the courts might look to § 7(d)'s closest analogue within civil procedure, the tempoary restraining order (TRO). The objective of § 7(d) is, as of a TRO, to preserve the status quo until more is known. It is not a matter of balancing the equities; the Congress has already struck that balance in favor of endangered species.¹⁰⁹

If § 7(d) applies therefore whenever adequate information is unavailable, and is applied in a realistic fashion, it remains to discover for how long it applies. Adequate information may take years to develop. On a given occasion it may never be developed. A strict construction of the statute may lead to an impasse where an agency is prohibited by § 7(d) from going forward, but is also prohibited from applying for an exemption because an "irreconcilable conflict" (potential jeopardy and no alternative to avoid it) has not ripened. The project is in limbo.

The answer to the "how-long" question for § 7(d) must be a reasonable one both for agencies and for species on the brink of extinction. The answer appears to be in postponing a decision for only the reasonable time needed to produce the necessary information, and in setting a cut-off point beyond which application for exemption would be in order. There is a practical limit to the kinds of information which can be obtained. For most actions affecting endangered species there will only be better predictability after all possible studies are completed; there will be no scientific certainty. The information gap thus should be one which the FWS or NMFS shows can be addressed by an identifiable plan of study, which will bear directly on the gap in question and materially advance the answer. In short, the period of limbo should carry a plan for its own termination. Additionally, there should be a deadline for situations where necessary information may not be available beyond which jeopardy will be presumed, and the applicant allowed to proceed to the exemption process. Unfortunately the deadline cannot be set by any talismanic formula. For some proposals it may be reasonable to wait years, or even decades: alternative locations, alternative sources, alternative means of satisfying project purposes may make the delay a reasonable one. For otherr proposals — those of the highest national priority, for example, where no useful information on the species will be generated in the near future — delay may seem unreasonable and the exemption process should be activated quickly. The key to how long the cut-off should be depends for the most part on what information is needed and what can be generated in what period of time. These factors depend on biological considerations. If a deadline is necessary, therefore, it should be set by the responsible wildlife agency in consultation with the action agency.

From this analysis § 7(d) emerges as a problem-solver of considerable potential. Alone among the provisions of § 7 it has the flexibility to limit on-going actions in the face of inadequate information as to their effects on endangered species. Properly interpreted it carries no finality for the project or the species. It preserves both the option to go forward with the project, and the options for alternatives which are necessary to the consultation process — the options for preserving the species. It remains to be seen whether § 7(d) will be so employed.

The Unpublished Regulations: What Do They Do When They Don't Know?

A reader curious as to how the executive agencies are addressing this problem would most likely turn to their published regulations. In this case, to no avail. Although the most recent amendments to the ESA have been in existence for over two years the available regulations predate them, informing and misinforming in the way of an old map.¹¹⁰

Since February 1981, however, the wildlife agencies have been operating on the basis of unpublished "proposed" rules which, although the public is the last to know, supersede the published regulations.¹¹¹ However adopted and however lawful,¹¹² the unpublished rules [12 ELR 15011] reflect the way the agencies are implementing the Act and the way they intend their procedures to emerge from final rulemaking. How do these procedures safeguard endangered species when the impacts of a federal action are unknown?

To begin with, the proposed rules establish a two-tiered approach to consultation. In the first, or "informal" stage, overtures are made between the action and biological agencies (the verb used is "confer"), leading up to, where necessary, the preparation of the biological assessment.¹¹³ The assessments, however, are required only when a species may be present "in the area affected by a major federal action significantly affecting the quality of the human environment."¹¹⁴

This requirement is similar to NEPA's environmental impact statement (EIS) requirements.¹¹⁵ However, while no EIS could stand unless it included an assessment for endangered species, the reverse is less compelling.When a decision is made not to write an EIS — a decision which is made at a preliminary stage of planning and information — no assessment for endangered species is required. This appears to subvert the mandate of the ESA, which contains no "minor action" exemption. If you affect a species, you comply. For the purposes of our inquiry, the effect of this new regulatory limitation on the biological assessment is to limit the inquiry, and the range of the unknown, under the ESA. An agency will not have to deal with a species it does not find.

The unpublished rules turn further from the spirit of the ESA in their treatment of "cumulative impacts." While the proposed rules require consideration of cumulative impacts,¹¹⁶ the term is defined as impacts which are "caused by" the federal action.¹¹⁷ The "caused by" approach limits inquiry under the ESA in significant ways. Few species are under threat from a single source. Consider the numerous individual applications for water from the Colorado River, for example, or the sources of air or water pollution in any industrial area. Multiple causes abound. Yet under the unpublished regulations, if the impacts arise from actions which have "independent utility" — a second-home development near a highway interchange, perhaps, or a second refinery near the one under question — then these effects are excluded from consideration under the ESA. Unless the federal action can be shown to stimulate the otherrs — indeed, unless the otherr causes are so tied to the federal threat they have no "independent utility" — the impacts of all otherr identified, thorougly predictable actions on the species may be ignored in the ESA consultation process.¹¹⁸ One result of this rule is to establish a free ride up to the brink of extinguishing a species. Ignored is the fact that it may be a private action, not related in any way but eminently foreseeable, which will withdraw that last bit of water, add that last contaminant and push the species over the brink.The effect of this approach, as with the previous one, is to narrow consideration of the unknown: there will be no problem with uncertain consequences when they are excluded from view.¹¹⁹

It is in the consultation process itself, however, that the unpublished rules have their greatest effect. If insufficient information exists concerning a species or its critical habitat, the wildlife gency "shall request" an extension of the formal consultation period.¹²⁰ The request is, apparently, obligatory. The response is not. If the action agency concurs in an extension, consultation continues accordingly. If the action agency demurs, however, "the Director [of the wildlife agency] shall reach a conclusion" on jeopardy.¹²¹ As we have seen, neither the Act nor the 1979 conference report require this shot-in-the-dark jeopardy opinion. In this regard the regulations eliminate an important option when facing the unknown — no call on jeopardy while more information is gathered. Without this option the wildlife agency can only request additional time, be refused, and face a best-guess choice. If the guess is "likely to jeopardize" then further action is foreclosed. But this result presupposes the agency's willingness to predict a likelihood of jeopardy on the basis of insufficient facts. This is precisely the type of prediction which scientists are trained not to make, even in neutral circumstances. When the scientists are housed within a federal agency, faced with the momentum of a project proposal, and can anticipate the review of a "likelihood-of-jeopardy" prediction by their peers in the scientific community, the applicants' retained experts, and possibly the Endangered Species Review Board, the Endangered Species Committee, and a court of law, their inadequate-information-but-likelihood-of-jeopardy opinions may turn out to be as rare as the species they concern. If, more predictably, the guess is "not likely to" jeopardize, then § 7(d) is apparently abandoned. As — and if — additional information is being developed, the action goes forward without restraint on funding or commitments. It is the full-steam-ahead approach.

[12 ELR 15012]

The regulations do provide anotherr situation for the application of § 7(d): where "the action is authorized by a statute that allows the agency to take incremental steps toward completion of the action."¹²² Here the rulings in Beaufort Sea are implemented. A "best guess" opinion issues, and if the opinion finds no jeopardy (intermediate and long-range), then consultation continues and the federal action may go forward only if "the intermediate steps do not violate Section 7(d) of the Act concerning irreversible or irretrievable commitments of resources."¹²³ This approach solves one § 7(d) problem but raises anotherr. A reader remembering the heavy emphasis in the Beaufort Sea cases on the unique nature of the OCSLA — its contemporaneous enactment, the national priority it assigns to oil production, its carefully-legislated tiering and mandated reviews, its provisions for modification and termination of the action — will notice a leap here to embrace otherr statutes which provide "incremental steps" towards a federal action. Yet, when broadly viewed, almost all federal statutes opeate in stages. Federal-aid highways go through a series of approvals for preliminary planning, location, and design. Army Corps of Engineers projects follow feasibility study, general design authorization, advance engineering and design, initial appropriations, and subsequent annual appropriations. Does the "incremental" approach apply as well to the steps of federal coal leasing? If the line permitting "incremental" consideration is pulled back from the OCSLA where does it come to rest, and on what logical basis? And with what effect on endangered species, as, year by year, the investment in these projects — investments which may only need to have "alternative uses," or perhaps only the "willingness" of the developer to "risk" them, to satisfy § 7(d) — mount against them? In these regards the rule forges new law. With regard to "incremental steps" it is overbroad.

The inescapable conclusion is that the unpublished regulations, after narrowing consideration of the unknown in consultation perhaps more than is lawfully possible, come to grips with the inadequate-information question in an inadequate way. They leave the application of § 7(d) to the will of the action agency, or to the hazard of a crude "jeopardy" guess by wildlife scientists. At the same time they attempt to expand the types of federal programs which can proceed "incrementally," in which commitments otherrwise barred will be approved.

Conclusion

The ESA swings on a pendulum as does any otherr legislative or political concern. It has been twice amended to lend it strength, and twice to provide flexibility. More legislative proposals are inevitable. Short of removing its essential presumption in favor of species diversity, however, there is little more than fine-tuning that legislation can do.

The success of the Act will hinge on its administration. No area will be more difficult to administer than that in which sufficient information on the effects of proposed federal activity is not now available, where the impacts are simply not known. The ESA has within it, with no need for further legislation, provisions for a reasonable solution. Section 7(d) steers the middle course between ill-informed predictions of jeopardy which will invoke the heavy machinery of the exemption process, and ill-informed predictions of no-jeopardy which could unleash commitments without bounds.

The wildlife agencies would do well to reexamine the utility of § 7(d) for dealing with federal actions when their impacts on endangered species are unknown. If we must steam into uncertainty with known species in the balance, it is sensible that we proceed with restraint.

1. 16 U.S.C. § 1536, ELR STAT. & REG. 41830.

2. Among the Act's otherr provisions are the regulation of trade in endangered species, 16 U.S.C. § 1539, ELR STAT. & REG. 41832:2, assistance for state programs, 16 U.S.C. § 1535, ELR STAT. & REG. 41828, land acquisition, 16 U.S.C. § 1534, ELR STAT. & REG. 41828, enforcement, 16 U.S.C. § 1540, ELR STAT. & REG. 41832:4, and citizen suits, 16 U.S.C. § 1540(g), ELR STAT. & REG. 41833.

3. Tennessee Valley Authority v. Hill (Tellico Dam), 437 U.S. 153, 8 ELR 20513, (1978).

4. From 1973 to 1978, 4,500 consultations were conducted; only three of these led to litigation and all three projects have since gone forward to completion. See TVA v. Hill (Tellico Dam) 437 U.S. 153, 8 ELR 20513 (1978); National Wildlife Federation v. Coleman (Interstate-10), 529 F.2d 359, 6 ELR 20344 (5th Cir. 1976); Nebraska v. Rural Electrification Administration (Greyrocks Dam), 8 ELR 20789 (D. Neb. 1978). Since 1978, and the review of the Tellico and Greyrocks projects called for in the 1978 amendments to the Act, no conflicts have yet led into the § 7 exemption process, nor have any projects been enjoined under this section by the courts.

5. There is an obvious difference between the potential application of § 7 and its impact on a project. Very few federal projects to which § 7 has been applied have been affected by its requirements. See note 19, infra. What developers fear in this area is largely the unknown: the risk, however small, that their project may be one of the unlucky few for which modifications are required. One safeguard against even this low-percentage risk is sufficiently early planning to avoid the species conflict in the first place. This early warning is, of course, the intended purpose of consultation under § 7. See 124 CONG. REC. S 10896 (daily ed. July 17, 1978) (remarks of Sen. Culver).

6. Nebraska v. REA, 8 ELR 20789 (D. Neb. 1978).

7. TVA v. Hill, 437 U.S. 153, 8 ELR 20513 (1978).

8. Pub. L. No. 95-632, 92 Stat. 3752 (1978).

9. Pub. L. No. 96-159, 93 Stat. 1226 (1979).

10. A review of records available at the U.S. Fish and Wildlife Service shows a total of 1,211 formal consultations in 1980 and 1981.

11. See text at notes 110-123, infra.

12. 16 U.S.C. § 1536(a)(2), ELR Stat. & Reg. 41830.

13. This understanding is somewhat hard-won because the sequence does not appear in the Act in chronological order, and because the implementing regulations of the Departments of the Interior and Commerce were issued prior to the sweeping amendments of 1978 and have not since been revised. See text at note 110, infra.

14. 16 U.S.C. § 1536(a)(2), ELR Stat. & Reg. 41830.

15. 16 U.S.C. § 1536(c)(1), ELR Stat. & Reg. 41830. The action agency consults with either the Fish and Wildlife Service of the Department of the Interior or the National Marine Fisheries Service of the Department of Commerce. Id. at § 1532, ELR Stat. & Reg. 41826.

16. Id.

17. The Act does not spell out the relationship between the biological assessment and the biological opinion, or their respective deadlines. Section 7(c), describing the assessment, provides that "[s]uch assessment shall be completed within 180 days after the date on which initiated." Section 7(b), describing the opinion, requires "consultation" (between the action agency and the Secretary) to be "concluded within 90 days after the date on which initiated," and for the opinion to issue "[p]romptly after the conclusion of consultation." Unaddressed, however, are the questions of when either the assessment or consultation are "initiated": 180 days and 90 days from when? The possible answers are that the two steps run concurrently, or sequentially. Of the two, the latter makes more sense: the purpose of the assessment is to determine if listed species are present; only when that information is available can the Secretary issue an opinion on impacts and alternatives. This being so, the assessment time clock should be triggered by the Secretary's "may be present" response. The completion of the assessment triggers formal "consultation" (if the findings are positive), and the time for the Secretary's opinion begins to toll. This is the approach adopted by unpublished regulations under which the Departments of the Interior and Commerce are presently operating. See text at notes 110-123, infra.

18. 16 U.S.C. § 1536(g)(5)(A)(i), ELR Stat. & Reg. 41831. The exemption process itself relies on the information developed during consultation. Effective consultation — measured both subjectively ("good faith") and objectively ("a reasonable and responsible effort") — is a pre-condition for access to the exemption process. Upon application for an exemption a three-person Review Board determines first whether the project is eligible, certifying in effect that an irreconcilable conflict between the project and a listed species does exist, and that the applicant has consulted properly and in good faith. 16 U.S.C. § 1536(g)(5), ELR Stat. & Reg. 41831. This done, the Board develops a report on all available alternatives to the project, on its significance, and on reasonable mitigation and enhancement measures. 16 U.S.C. § 1536(g)(7), ELR Stat. & Reg. 41831. The Board's report then goes to the Endangered Species Committee — the heads of seven designated federal agencies — which rules on the application. Exemption may be granted only by the vote of five or more members upon their findings that there are no reasonable and prudent alternatives, that the benefits of the action outweigh the benefits of any action which would conserve the species, and that the action is of regional and national significance. 16 U.S.C. § 1536(h), ELR Stat. & Reg. 41831.

19. A review of records of the U.S. Fish & Wildlife Service shows that of 5,909 preliminary or "informal" contacts between agencies under § 7 in 1980 and 1981, only 1,211 led to formal consultation; of these, only 84 resulted in jeopardy opinions.

20. Id.

21. See, e.g., Nebraska v. REA, 8 ELR 20789 (D. Neb. 1978).

22. See, e.g., North Slope Borough v. Andrus, 642 F.2d 589, 10 ELR 20832 (D.C. Cir. 1980).

23. See, e.g., Cabinet Mountains Wilderness v. Peterson, 510 F. Supp. 1186, 11 ELR 20812 (D.D.C. 1980).

24. 16 U.S.C. § 1536(a)(2), ELR Stat. & Reg. 41830.

25. North Slope Borough v. Andrus, 486 F. Supp. 332, 350, 10 ELR 20115, 20120 (D.D.C. 1980).

26. 50 C.F.R. § 402.04(a)(3).

27. 16 U.S.C. § 1536(d), ELR Stat. & Reg. 41830.

28. The action agency does, of course, have the option to disagree with the biological opinion's jeopardy finding and proceed with its action. It runs the risk of a citizen suit, however, in which the jeopardy opinion will carry considerable weight. See National Wildlife Federation v. Coleman, 529 F.2d 359, 375, 6 ELR 20344, 20352 (5th Cir. 1976).

29. See Massachusetts v. Andrus (Georges Bank), 481 F. Supp. 685, 9 ELR 20764 (D. Mass. 1979) denial of preliminary injunction aff'd sub nom. Conservation Law Foundation v. Andrus, 623 F.2d 712, 10 ELR 20067 (1st Cir. 1979); North Slope Borough v. Andrus (Beaufort Sea), 486 F. Supp. 332, 10 ELR 20115 (D.D.C. 1980), rev'd 642 F.2d 589, 10 ELR 20832 (D.C. Cir. 1980).

30. 43 U.S.C. § 1331, ELR STAT. & REG. 42456.

31. H.R. REP. NO. 590, 95th Cong., 1st Sess. 53 (1977).

32. 43 U.S.C. §§ 1337, 1340, 1351, ELR STAT. & REG. 42459, 42462, 42467.

33. Id.

34. 43 U.S.C. § 1334(a), ELR STAT. & REG. 42457.

35. 43 U.S.C. § 1347, ELR STAT. & REG. 42465.

36. Conservation Law Foundation v. Andrus, 617 F.2d 296, 9 ELR 20767 (1st Cir. Nov. 6, 1979) (denial of motion for injunction pending appeal).

37. 617 F.2d at 298, 9 ELR at 20768.

38. 642 F.2d at 608, 10 ELR at 20842.

39. Id. at 611, 10 ELR at 20844.

40. Id. at 595, 10 ELR at 20834.

41. The ESA is scheduled for reauthorization in 1982.

42. 486 F. Supp. at 351, 10 ELR at 20120.

43. Id. at 351, 10 ELR at 20121.

44. Id. at 350, 10 ELR at 20120-21.

45. The NMFS, within the Department of Commerce, is the responsible wildlife agency for several marine animals, including whales.

46. 486 F. Supp. at 352, 10 ELR at 20121.

47. Id. at 352, 10 ELR at 20121.

48. Id.

49. Id. at 356, 10 ELR at 20123.

50. Id.

51. On reflection, the reader may find "reasonable likelihood of jeopardy" a curious test for the application of § 7(d); were an action likely to violate § 7(a)(2), then § 7(a)(2) itself would prohibit it. No § 7(d) restriction would be necessary. While support for this "reasonable likelihood" test may be hard to find in the ESA, Judge Robinson's motive may be more apprent: having found § 7(d) applicable he then sought a way to limit it, lest all federal activities be paralyzed by uncertainties as to their effects on endangered species. The question is whether § 7(d) can be limited in a more meaningful way than "reasonable likelihood of jeopardy," a test which assumes more knowledge and more certainty for danger than is ever likely to be present in an "inadequate information" situation. If that much jeopardy is anticipated, there is no need for § 7(d). Section 7(a) is the bar.

52. Id. at 357, 10 ELR at 20123. The validity of this conclusion might be tested by asking the question whether these same commitments could have been made, in the face of § 7(d), while the original 90-day consultation was in progress. If so, then what does § 7(d) prohibit? See text at notes 99-109, infra. If not, then are there two standards for § 7(d): one during the original consultation, and anotherr (more permissive) standard if, due to insufficient information, consultation continues?

53. Id. at 358, 10 ELR at 20124.

54. Id.

55. 642 F.2d at 608, 10 ELR at 20842 (D.C. Cir. 1980).

56. Id. at 609, 10 ELR at 20843.

57. Id.

58. Id. The NMFS reports in Beaufort Sea were held to constitute a biological opinion for the reason that they were considered to be one "by the authoring agency" and by Interior; "since these contentions are not unreasonable, we accept the letter (and the associated documents) as such." Id. at 610, 10 ELR at 20844. The court did not examine, however, as did the district court, the content of the NMFS reports to determine whether they contain what § 7(b) requires. As the district court noted, § 7(b) requires specific findings which, even on a purely procedural basis, would seem to supply standards for judicial review.

59. Id. at 610, 10 ELR at 20844. The court failed to note, however, that a major recommendation of NMFS, limiting exploration drilling to months when the whales were not in migration, was accepted not in full, but for two years only.

60. Id. at 607, 10 ELR at 20842. The circuit court here had its Secretaries confused. In TVA v. Hill, Interior was the wildlife agency and TVA the construction agency. In Beaufort Sea, Interior had switched hats to the construction role; it is the Secretary of Commerce, through NMFS, who has responsibility for protecting the whales. The ease with which this confusion can take place, and the misleading assumption made that Interior is on the side of endangered species, is heightened in cases where Interior agencies are both the proponent (such as the Bureau of Reclamation) and wildlife trustee (Fish and Wildlife Service). The confusion reaches still more troublesome proportions when such cases reach the review and exemption process, with the Secretary of the Interior not only responsible for the construction proposal and wildlife expertise, but also for selection of one third of the Review Board, assistance to the Board during its deliberations, and participation in the ultimate exemption decision. The Secretary controls a good deal of the action on both sides of the table, and of the final judgment as well.

61. Id. at 611, 10 ELR at 20844. So holding, the court dusted its trial with a footnote on the applicability of § 7(d) in circumstances where a biological opinion is based on incomplete information. Id. at n. 143. While it reached no conclusion on the question where consultation continues, it cited the First Circuit's determination under similar circumstances that "no ESA violation had been demonstrated." The weight of this reference is doubtful. Georges Bank did not deal with the applicability of § 7(d); only with a finding that no § 7(d) commitments were made. Our disposition of … [the case] … avoids the necessity of reaching [§ 7d] issue." 623 F.2d at 714 n.1, 10 ELR at 20068 n.1.

62. This expanded view of agency action is in contrast to the segmentation allowed under the National Environmental Policy Act, 42 U.S.C. §§ 4321-4361, ELR STAT. & REG. 41009, for example, and persuasively so. Where the survival of a species is at stake, foreclosing the inquiry at "logical termini" becomes less logical; it is more necessary to look as far forward as possible.

63. As for the presumptions in such a situation, see National Wildlife Federation v. Coleman, 529 F.2d 359, 6 ELR 20344 (5th Cir. 1976) (a plaintiff retains the burden of proof; upon the presentation of "some evidence" of a possible violation, however, the burden of proceeding shifts to the defendant agency).

64. 520 F. Supp. 1359, 11 ELR 20870 (C.D. Cal. 1981).

65. 16 U.S.C. § 1451 et seq., ELR STAT. & REG. 41701.

66. 42 U.S.C. § 4321 et seq., ELR STAT. & REG. 41009.

67. 520 F. Supp. at 1387.

68. Id.

69. H.R. REP. NO. 697, 96th Cong., 1st Sess. 12 (1979).

70. The "judicial decision" cited here is NWF v. Coleman, 529 F.2d 359, 6 ELR 20344 (5th Cir. 1976). The report's reference to agency practice is accurate; USFWS and NMFS regulations did employ an "is likely to" standard for § 7(a). The reference to NWF v. Coleman is more doubtful, however, because in that case the Fifth Circuit used a "will not" standard, Id. at 375, 6 ELR at 20352.

71. H.R. REP. NO. 697, 96th Cong., 1st Sess. 12 (1979).

72. Id.

73. It should be noted that the conference report does not require a best guess in all circumstances, or indeed in any circumstances. The report was ostensibly written to correct the impression within the USFWS and NMFS that they were forced to issue negative opinions where the information is inadequate. Therefore "the amendment will permit the wildlife agencies to make their best guess." Id. The wildlife services may evidently interpret this language as allowing them, where the call is close, not to guess.

74. Id.

75. The most relevant legislative history is found in the comments of Congressman Beaux, a House leader in the 1979 amendment process. See 125 CONG. REC. H9650 (daily ed. Oct. 24, 1979.) Mr. Beaux's comments, however, simply lead in the same two directions. On the one hand, the amendment does not lessen "in any way" an agency's obligation "to avoid taking action where it cannot insure" the absence of jeopardy; on the otherr hand, the amendment "allows Federal agencies to consider the probability or likelihood in deciding whether to proceed."

76. See text at notes 120-121, infra.

77. 534 F.2d 1289, 6 ELR 20448 (5th Cir. 1976).

78. 510 F. Supp. 1186, 11 ELR 20812 (D.D.C. 1981).

79. 534 F.2d at 1303, 6 ELR at 20454.

80. 510 F. Supp. at 1187, 11 ELR at 20812.

81. See also Libby Rod and Gun Club v. Poteat, 457 F. Supp. 1177, 8 ELR 20807 (D. Mont. 1978), aff'd in part, rev'd in part, 594 F.2d 753, 9 ELR 20274 (9th Cir. 1979) (failure to show jeopardy to bald eagles).

82. 1978 U.S. CODE CONG. & ADMIN. NEWS 9453.

83. Endangered Species Act of 1966 § 1(b), 80 Stat. 926.

84. Endangered Species Conservation Act, 83 Stat. 275.

85. Endangered Species Act of 1973 § 7, 87 Stat. 903.

86. 437 U.S. at 174-80, 8 ELR at 20518-21.

87. Id. at 173, 8 ELR at 20517.

88. 16 U.S.C. § 1533, ELR STAT. & REG. 41826.

89. 16 U.S.C. § 1536(a)(2), ELR STAT & REG. 41830.

90. 16 U.S.C. § 1536(g) & (h), ELR STAT. & REG. 41830, 41831. See note 18, supra.

91. 8 ELR 20789 (D. Neb. 1978).

92. Id. Slip op. at 24.

93. Id.

94. Id. at 26.

95. Id. at 29. Accord, Defenders of Wildlife v. Andrus, 428 F. Supp. 167, 7 ELR 20269 (D.D.C. 1977) (DOI hunting regulations). In this case information on impact was negligible:

Neither plaintiff nor defendants presented any data which would indicate how many misidentifications (of endangered species) occur during the contested hours compared with those which occur during full daylight … The administrative record is virtually barren of any information regarding the impact of the contented shooting hours on birds that should not be taken.

Id. at 169, 7 ELR at 20269. Under these circumstances the court held that the Service "must do far more" not only to prevent the possible destruction of endangered species but also to increase their numbers, and ordered the Service to address the question in its regulations for the following year.

96. In this regard it should be noted that the conference report specifically references NWF v. Coleman and TVA v. Hill. One would think that an attempt to overrule or modify a decision as clear as Nebraska v. REA would identify the decision in question.

97. 16 U.S.C. § 1536(h), ELR STAT. & REG. 41831. Whether project commitments are legally relevant in the exemption decision is an open question. It is at least arguable that the "benefits of the proposed action" vs. "benefits of alternative courses of action" test for exemption, § 1536(h)(1)(A)(ii), ELR STAT. & REG. 41831, excludes consideration of commitments. Be that as it may, these commitments figured prominently in the only two exemption processes to date — those concerning the Tellico and Grayrocks Dams — and in the real world they will not and can not be ignored.

98. H.R. REP. NO. 697 at 13, 96th Cong., 1st Sess. 12(1979).

99. 486 F. Supp. at 336, 10 ELR at 20123.

100. Id. at 354, 10 ELR at 20122.

101. Id.

102. Id. Even here, the court was unwilling to release § 7(d) altogether. New information on endangered species may develop; if it does, § 7(d) rises again and "resources may not be committed in violation" of this section, Id. For these reasons, "Congress clearly envisioned that § 7(d) would remain viable [i.e., potentially applicable] until either the completion of the project or the granting of an exemption under § 7(h)." Id. at 354, 10 ELR at 20122.

103. 623 F.2d at 715, 10 ELR at 20068:1. "The question we are addressing is what is the nature of the commitment, not whether it can be reversed." Id. n.3.

104. 486 F. Supp. at 357, 10 ELR at 20123.

105. 642 F.2d at 611, 10 ELR at 20844. The circuit court's conclusion seems to overlook the provisions of the OCSLA which require the Department of the Interior to compensate the oil companies if the leases were terminated. Once the leases issue, the oil companies' investment is guaranteed. It is the Department of the Interior which runs the risk. The question is whetherthat risk may not affect Interior's options and responses once the necessary information on the bowhead whales becomes available. Does not the potential liability influence Interior not to cancel a lease? Isn't this precisely the kind of influence § 7(d) seeks to prevent?

106. 520 F. Supp. at 1387.

107. Nebraska v. REA, Slip. Op. at 28.

108. Id.

109. TVA v. Hill, 437 U.S. at 185-88, 8 ELR at 20517-18.

110. 50 C.F.R. § 402 (1978).

111. Proposed Rules on Intragency Cooperation — Endangered Species Act of 1973, as amended, circulated by the USFWS and NOAA to otherr federal agencies on February 27, 1981, with comments from them due within 60 days of receipt. The summary to the rules states: "These rules will service as interim guidance until final rules are published, in lieu of the existing regulations found at 50 C.F.R. Part 402." (These regulations are available from ELR. 42 pp. $5.75, ELR Order No. A-1022.)

112. While the desirability of a regulatory framework which corresponds to the 1978 amendments is undeniable, the fashion in which the agencies have provided it appears to leave them vulnerable to challenge by any affected party, construction applicant, or environmentalist, without notice of the new rules and an opportunity for comment.

113. ESA Regulations § 402.10. The citations which follow are to the unpublished, proposed rules.

114. Id.

115. 42 U.S.C. § 4332(2)(C), ELR STAT. & REG. 41010.

116. Sections 402.11(d)(2), 402.13(f).

117. Section 402.02.

118. Id. and Summary pp. 14, 15. It should be noted that the otherr, excluded actions can be federal or private, so long as they are not "caused" by the federal action under consideration. The history of this conclusion on the reach of the ESA, and its justification, are contained in three Interior Solicitor's Opinions dated July 19, 1978, July 24, 1978, and August 26, 1981. The question arose in the context of water withdrawals in the West: must a federal project be assessed in connection with foreseeable but unrelated withdrawals by private entities along the same stretch of river? The answer holds enormous ramifications for western water projects, and by analogy for any number of proposed facilities which may contribute to air and water pollution. The applicable Solicitor's Opinion under Secretary Andrus required consideration of all foreseeable actions. The Solicitor's Opinion under Secretary Watt added the narrower, "caused by" requirement. The validity of this approach has yet to be tested in litigation.

119. Having restricted ESA review to actions "caused by" the federal action, the rules allow consideration of otherr actions — but limit the use even of this option to "advisory statements" within the biological opinion, § 402.11(g)(1). The legal effect of such a statement — "you are advised that the proposed federal action in combination with an unrelated series of foreseeable actions is likely to jeopardize the whooping crane" — is unclear; from the context of the rules, and the underlying Solicitor's Opinions, the apparent objective is to give the advice no legal effect.

120. Section 402.13(i)(4).

121. Id.

122. Section 402.13(i(5).

123. Id.