How is the requirement for consultation under Section 7 of the Endangered Species Act? Does it hurt energy producers and does it enforce needed wildlife conservation
How is the requirement for consultation under Section 7 of the Endangered Species Act? Does it hurt energy producers and does it enforce needed wildlife conservation? As a student of the implementation of the endangered species act, I have found few studies that give me an idea of how it works in practice. Thus I found the 2016 publication by Melinda Taylor, Romany Webb, and Vanessa Puig-Williams to be a most useful publication. (2016): Protecting Species or Endangering Development? How Consultation Under the Endangered Species Act Affects Energy Projects on Public Lands. Research Paper No. 2016-8 October. It studied 179 consultations done with energy producers (oil & gas, solar, and wind) between 2010 and 2014. It provides quantitative data on how long the consultations took. In general, their conclusion is that the consultations were done in a timely manner and were not characterized by long delays as critics of the ESA often contend. Their data show that the length of the consultations were well within the limits set by the ESA. They also found that “no project was stopped or extensively altered as a result of FWS finding jeopardy or adverse modification during consultation.” These findings appear to undercut much of the criticism of the ESA as causing a regulatory nightmare inhibiting energy development. The authors show that the official length of consultation can be misleading because “informal consultation” between USFWS and energy producers usually takes place long before the official start of the project. However, even taking into consideration the informal consultation, the report appears to show that the ESA has not been a major blockage to energy production on public lands. They show USFWS and the producers have developed mechanisms to speed up the consultation process such as Programmatic Biological Opinions (PBOs) which allow “expedited review” covering similar actions. The study found that consultations using PBOs took 90 percent less time. They state that PBOs often “include “boiler-plate” conservation measures designed to minimize the impacts of future projects and thereby provide project developers with greater certainty regarding the steps they may be required to take.” According to this study, consultations over oil and gas projects take relatively short periods of time. By way of contrast, solar and wind projects tend to cover a much larger area and consequently the consultation is much longer. The authors argue that, based on their communications with both USFWS and energy producers, the consultation process is “mostly collaborative” and not adversarial. In short, the ESA does not appear to be the “bugaboo” as it is often depicted by ESA critics. However, the report focuses much less on how well the consultation process protects wildlife. They note that only 10 percent of the oil and gas projects were found to be even subject to consultation. The authors list 3 possible reasons for this: (1) Federal agencies may be taking a narrow view of review to avoid the consultation requirement. (2) Oil and gas developers may be deliberately siting projects away from species habitat to avoid need to consult. (3) The best sites to develop may be located outside of species habitat. The authors believe based on “anecdotal” evidence that reasons 2 and 3 were the most likely reason for the low percent reviewed. However, as someone interested in wildlife conservation, it seems to me that a review of the consultation process that focuses on wildlife conservation is needed—this study is clearly focused on sensitivity to the needs of energy producers, not wildlife conservation needs. Based on this study, it appears that USFWS is sensitive and responsive to energy producer concerns—it is not clear that they are as sensitive and responsive to the needs of wildlife. This report is accessible from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2867113
During my research for the book, I noticed that there was no blog available for sharing informaton on wildlife conservation and thus I set up this blog to accomplish this purpose. Please share any informaticoncerning issues related to wildife policy and politics. I welcome feedback from users concerning this blog and website.