Is Section 7 of the Endangered Species Act working as it should? Preserving Species versus Economic Development.

Is Section 7 of the Endangered Species Act working as it should? Preserving Species versus Economic Development.
The Endangered Species Act is being “reviewed” now by Republicans in Congress who say they want to “update” the law and revise it so that it will not hinder economic development. Consequently, it is instructive to look at research that analyzes the impact of Section 7 requirements that projects that may affect endangered species be reviewed by the USFWS.  According to Jacob Malcom and Ya-Wei Li, conservative lawmakers submitted more than 160 bills to reduce protections related to listing (and delisting) in order to reduce the alleged harmful economic impacts of the ESA and particularly its Section 7 review requirements. A major complaint was that the reviews were lengthy and caused great delays and consequently were costly to developers and industry.  Malcom and Li point out that the negative comments about the impacts of Section 7 were based on informal comments and not systematic research so they conducted a study of more than 88,000 Section 7 consultations done between 2008 and 2015 using the USFWS’s TAILS database. Their startling finding was that only 2 projects “received jeopardy” status meaning that they were judged to jeopardize listed species and thus could be “prosecuted by a third party for breach of Section 7.”  Concerning delays, Malcom and Li found that the median duration of formal consultations was “one-half the maximum allowed” though 20 percent did take “longer than the 135 days allowed.”  Malcolm and Li noted that though these longer delays may reflect inefficiencies in the process, they can also be due to “inadequate data on species” which results in additional time needed to collect data on them.  In short, Malcom and Li conclude that the common perception (among developers and industries) that Section 7 hinders projects and adds to their costs due to unnecessary delays is not supported by facts.
 
However, Paul S. Weiland et al., consultants who work with developers on many Section 7 consultations, replied to the Malcom-Li article by arguing that their research “reveals nothing regarding their [i.e., Section 7 consultations] economic impacts. They state that studying data concerning the formal consultation process ignores the fact that the formal process is preceded by informal consultation between the developers-industry and USFWS that can be lengthy and often results in many “proposed actions” that impose costs on the developers-industries and society. Moreover, they note that the Malcom-Li article did not directly study economic costs. Malcom and Li replied to this critique by arguing that, though they did not look directly at economic costs, “it is reasonably inferable from…key findings” of almost no jeopardy findings and the short median length of formal consultations. They also point to a decline in the percentage of jeopardy findings over the decades of the ESA despite a big increase in the number of consultations.
A 2016 study by Melinda Taylor et al. looked at 179 consultations done between 2010 and 2014 by the Bureau of Land Management (BLM) concerning oil, gas, solar and wind projects. In contrast to the Malcom and Li study, they did look at the informal consultations done before formal ones. They did find that these “pre-consultations” can add “significant time to the projects” and “result in delays.”  One striking finding is that only 10 percent of all oil and gas projects on BLM lands “were subject to consultation” at all.  Moreover, Taylor et al. found that the consultation process was “generally highly collaborative” with much give-and-take between the parties—the one critique by industry of the process is that different USFWS often held different interpretations” of the ESA consultation process. Also, UFWS had responded to industry’s critiques of the slowness of the process by undertaking “programmatic Biological Opinions” (BOs) that involved “expedited review”—12 percent of the energy consultations involved these faster reviews.  BLM and USFWS made known to the industries-developers certain “best management practices” that allowed them to avoid consultations or reduce their length by conforming to the following informal rules:

1. the conduct studies to identify listed species and critical habitat in the project area;
2. design projects so as to minimize or mitigate impacts to species and habitat;
3.  avoid project activities in sensitive habitats and certain other areas where species are present;
4. minimize the total area disturbed by the project and ensuring reclamation of disturbed areas;
5.  limit vehicle and/or equipment use within the project area; and
6. restrict the timing of construction and other project activities.

 
One of Taylor et al.’s most interesting findings is that oil and gas projects affect relatively small areas (e.g., about five acres) compared to solar and wind projects (e.g., often hundreds to thousands of acres).  Overall, the most striking finding by Taylor et al. is the small percentage of energy projects (only 13 percent) subject to consultation at all. They suggest three possible reasons for this small percentage:

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

Taylor et al. believe that the second and third reasons are the major factors behind the small percentage.  However, as discussed in detail in my Wildlife Politics book, I suspect that Reason #1 is also important.  USFWS is a relatively weak agency trying to enforce rules on powerful industries in favor of protecting wildlife—not a very popular activity to be conducting in what is mainly conservative western states. 
 
My own overall conclusion is that the Malcolm and Taylor articles do not support the claims of ESA opponents who view the law as a major impediment to economic growth. Indeed, I think the evidence points more to the conclusion that wildlife conservation concerns may not be adequately addressed. 
 
The articles discussed above are available as follows:
 
Malcom, Jacob W. & Li, Ya-Wei. Data contradict common perceptions about a controversial provision of the US Endangered Species Act. 15844–15849.  PNAS. [Proceedings of the National Academy of Sciences of the United States of America] December 29, 2015 | vol. 112 no. 52. www.pnas.org/cgi/doi/10.1073/pnas.1516938112
 
Paul S. Weiland, Alan Glena, Sue Meyer Steve Quarles  Robert Thornton, and Brooke Wahlberg. Analysis of data on endangered species consultations reveals nothing regarding their economic impacts. Proceedings of the National Academy of Sciences of the United States of America. PNAS | March 22, 2016 | vol. 113 | no. 12 | E1593. www.pnas.org/cgi/doi/10.1073/pnas.1601137113

Jacob W. Malcoma and Ya-Wei Li. Reply to Weiland et al.: The point is to bring data to inform policy, not to rely solely on anecdotes. E1594 PNAS March 22, 2016 vol. 113 no. 12. www.pnas.org/cgi/doi/10.1073/pnas.1601848113
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Taylor, Melinda; Webb, Romany; and Puig-Williams, Vanessa. (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 2016. https://poseidon01.ssrn.com/delivery.php?ID=854006004112116127065018020075105069053032069011093069025100066025000125086106074006030110036003123013013080111090006119117106028051002032011065089084020065012081068040012032017065068125101071098118116080024088124025066125113010125073020025081073084067&EXT=pdf