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Protecting Species or Hindering Energy Development? How the Endangered Species Act Impacts Energy Projects on Western Public Lands

November 2016

Citation: ELR 10924

Author: Melinda Taylor, Romany Webb, and Vanessa Puig-Williams

Since it was enacted in 1973, the ESA has been one of the most celebrated environmental laws, but also one of the most reviled. Industry groups argue that the consultation process frequently delays and sometimes halts much needed energy, transportation, water supply, and other projects and often dramatically increases project costs. Environmentalists disagree with this view, contending that the process actually rarely stops anything and that the FWS lacks the backbone to impose meaningful conservation requirements that would be costly or inconvenient for the project developer. In 2015, the authors decided to delve deeply into ESA §7 to analyze how it actually works in practice and to assess the validity of various parties’ claims about the consultation process. They focused on the impact of §7 consultation on energy development on public land. This Comment is an overview of that study and key findings. In a nutshell, the authors learned that only a small fraction of energy projects developed on public land are reviewed at all under §7. When it applies, the consultation process appears to go quickly and smoothly for the vast majority of oil and gas projects, for a variety of reasons. On the other hand, consultation on solar energy and wind energy projects tends to be lengthy and complicated.

Melinda Taylor is a Senior Lecturer and Executive Director of the Kay Bailey Hutchison Center for Energy, Law, and Business at the University of Texas at Austin (KBH Energy Center). Romany Webb is a Climate Law Fellow at the Sabin Center for Climate Change Law at Columbia Law School. Vanessa Puig-Williams is an Affiliated Fellow in the KBH Energy Center.

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