Wildlife Protection: Section 7 of the Endangered Species Act Comes of Age

More than three years after passage of the Endangered Species Act,¹ the United States Fish and Wildlife Service (FWS) has proposed regulations² to implement § 7,³ one of the strongest statutory mandates for environmental protection presently on the books.⁴ Less than two weeks after the § 7 regulations were proposed, the Sixth Circuit Court of Appeals handed down a decision strictly enforcing § 7's mandate.

In Hill v. Tennessee Vally Authority,⁵ the court directed that a permanent injunction issue to halt final work on the nearly-completed Tellico dam project and, in effect, remanded the issue to Congress to resolve. The Tellico project had already been the subject of two prior rounds of National Environmental Policy Act (NEPA) suits in the Sixth Circuit by environmentalists seeking to preserve the free-flowing nature of the river.⁶ The reason for the court's decision is that completion of the dam and impoundment of waters behind it would most probably lead to extinction of the snail darter, a fish listed as an endangered species by FWS⁷ and found only in the portion of the Little Tennessee River that would be backed up by the dam. In the court's view, this would clearly violate § 7's prohibition against federal actions which jeopardize the continued existence of an endangered species or destroy its critical habitat.

Background

Passed in the wake of an international wildlife protection conference held in Washington, D.C., in the spring of 1973 and the resultant multilateral Convention on International Trade in Endangered Wild Fauna and Flora,⁸ the Endangered Species Act of 1973 replaced prior legislation that had established a relatively rudimentary structure.⁹ The Act was designed not only to conserve species listed as endangered or threatened¹⁰ but also to protect the ecosystems upon which the species depend. Such ecosystems, called "critical habitats," are established in conjunction with listing the species and are an essential part of the legislative scheme.¹¹

Section 7 of the Act applies to the federal government. It says:

The Secretary shall review other programs administered by him and utilize such programs in furtherance of the purposes of this Act. All other Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this Act by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 4 of this Act and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical.

Despite the strong, mandatory character of this language, the legislative history concerning this provision is relatively sparse.¹² Nonetheless, § 7 explicitly establishes a [7 ELR 10050] significant restraint on federal activity which requires substantive ecological protection far beyond the flexible and basically procedural requirements of NEPA.¹³

The Proposed Regulations

In explaining the scope of § 7, the proposed regulations explain that they reach "all actions of any kind authorized, funded, or carried out by Federal agencies, in whole or in part." "Critical habitat" is defined as "any air, land or water area … or any constituent thereof, the loss of which would appreciably decrease the likelihood of the survival and recovery of a listed species or a distinct segment of its population." The proposal defines "destruction or adverse modification" of habitat as "a direct or indirect alteration of critical habitat which appreciably diminishes the value of that habitat for survival and recovery of a listed species."

Under the proposed rules, federal agencies have initial responsibility to review their own programs for any that may affect listed species or their habitat. If an agency concludes that its action will not have any § 7 implications, the consultation process is completed. FWS, however, may initiate the process if it concludes on its own that an agency's action will have a jeopardizing effect.

If an agency concludes that its action may affect listed species or their habitat, it must request consultation with FWS which will, within 60 days, make a threshold examination using its particular expertise. If the threshold examination results in a determination that the activity is unlikely either to jeopardize the continued existence of a listed species or to result in the destruction of critical habitat, the consultation is completed. Conversely, if such an effect is likely, the agency must then initiate biological studies to determine how the activity may affect listed species or their critical habitat and then pass this information on to FWS.

Within 60 days after FWS receives the agency information, it must conclude the consultation process by issuing a biological opinion. The biological opinion may find either that the action under review is unlikely to violate § 7 or that such an effect is likely. In the latter instance, FWS may recommend changes in the proposed activity that would eliminate the deleterious effects. Modifications in the proposed activity or new information may trigger a reinitiation of the entire consultative process. In the final analysis, however, it is the responsibility of the sponsoring agency itself to decide whether to proceed with the activity in light of its § 7 obligations.¹⁴

Discussion

The proposed regulations deal explicitly and implicitly with several issues, one of which is the extraterritorial application of § 7. The Act itself makes no distinction between activities of federal agencies that are carried out abroad and those done domestically, and neither do the proposed rules. This perspective is consistent with the recognition that NEPA applies to all federal agencies, regardless of whether they operate domestically or abroad.¹⁵ As noted above, the Endangered Species Act is concerned not only with identifying and listing endangered and threatened species but also with bringing the species' critical habital under its protection. The Act provides a procedure for consulting with foreign governments in deciding whether to list foreign species,¹⁶ but makes no provision for such foreign consultation when determining critical habitats. The proposed regulations, therefore, indicate that critical habitat can only be land or waters under state or federal jurisdiction.¹⁷

The second issue concerns the consideration of environmental factors under several other environmental statutes, including NEPA and the Fish and Wildlife Coordination Act.¹⁸ The proposed regulations make clear that although interagency consultation under several statutes may be consolidated, satisfying the requirements under other statutes does not "of itself" relieve an agency of its Endangered Species Act obligations. This distinction is based on the intents of the separate statutory schemes: NEPA inserts the consideration of general environmental impacts, including that on wildlife, of federal projects into the decisionmaking process, and the Fish and Wildlife Coordination Act purports to "provide that wildlife conservation shall receive equal consideration and be coordinated with other features of water resource development programs."¹⁹ The Endangered Species Act, however, is specifically and exclusively concerned that endangered and threatened species be preserved and allowed to recover, a policy choice imposing a priority rather than merely adequate or equal consideration.

One provision of the proposed regulations may require further elaboration. If an FWS biological opinion concludes that an agency's action is likely to violate § 7, FWS "may recommend any changes that in [its] opinion will [7 ELR 10051] eliminate these effects of the activities or program."²⁰ One recent court decision implicitly held that the Secretary of the Interior has de facto power to delay final approval of a project until necessary changes are made.²¹ Either the final regulations or subsequent litigation, however, will settle whether the FWS views on project design are authoritative or whether the proposing agency can determine on its own that the project has been modified so as to avoid a § 7 violation.

Retroactivity

Whether the Act applies to a project that was ongoing at the time of the statute's enactment is a familiar problem from the judicial development of NEPA. A number of NEPA decisions have justified less than full statutory compliance based on equitable considerations such as percent of completion.²² NEPA itself is qualified. Section 101 directs the federal government "to use all practicable means" to protect the environment, and § 102 qualifies the impact statement requirement with the phrase "to the fullest extent possible." The Council on Environmental Quality guidelines for EIS preparation also note that the "status of the work and degrees of completion may be considered in determining whether to proceed with the project."²³

Unlike NEPA, § 7 of the Endangered Species Act is an unqualified proscription. The proposed regulations explain this proscription by rejecting the notion of equitable considerations and looking instead at the nature of the federal involvement. The proposal states that § 7 "applies to all activities or programs where Federal involvement or control remains which in itself could jeopardize the continued existence of a listed species or modify or destroy its critical habitat."²⁴

The theory behind this provision is that by "turning off the spigot" of federal involvement, a listed species or critical habitat will, at least, not be threatened by any federally-funded action even though the action and its damaging consequences may be carried out with funds from other sources.²⁵ The language describing the nature of the federal involvement may appear deceptively simple. If this provision is not explained further in the final regulations, however, there doubtless will ensue extensive litigation forcing the judiciary to draw the line, on a case-by-case basis, at where the federal involvement is the sine qua non and whether, for example, there can be a distinction between discretionary and merely ministerial tasks of a federal agency. The Sixth Circuit's Hill v. Tennessee Valley Authority decision does not present such a problem because it solely involved federal activity and it is only the last step in the project, closing the dam's gate and impounding the waters, that would violate § 7.

The Snail Darter Case

The purpose of the Tellico project is to create, by building a dam on the Little Tennessee River, a large reservoir that will spur the area's economic and industrial development and provide energy supply and flood-control benefits. Opponents sought to preserve the scenic and recreational beauty of the free-flowing river as well as numerous historic and archeological attributes that would be lost if the dam were closed and the lake created. After delaying, but not stopping, the dam project by forcing TVA to comply with NEPA,²⁶ the dam's opponents found a tiny ally. The three-inch-long snail darter, a previously unknown member of the perch family requiring river habitat, was discovered just before passage of the Endangered Species Act, listed soon thereafter and its critical habitat established by the Interior Department as that part of the Little Tennessee River that would be made a lake by the Tellico project.

In a renewed suit to halt completion of the project because of threatened violation of § 7, the district court agreed that closure of the dam would jeopardize the continued existence of the snail darter or destroy its critical habitat. The court, however, refused to enjoin the project, analogizing to the NEPA line of cases, because it would be unreasonable to halt a project so near completion for which Congress had continued to appropriate funds.²⁷

Speaking for the Sixth Circuit, Judge Celebrezze agreed that completion of the dam would violate § 7, but held that there were no adequate grounds for exempting the project from the Act, and that an injunction was the proper remedy.²⁸ The court, therefore, permanently enjoined all activities relating to the project until either Congress exempted it from the Act or the Interior Department delisted the snail darter or redefined its critical habitat.

In rejecting the argument that the on-going nature of a project precludes enforcement of § 7, the court concluded that such a factor was not properly a part of the question of the Act's applicability:

Current project status cannot be translated into a workable standard of judicial review. Whether a dam is 50% or 90% completed is irrelevant in calculating the social and scientific costs attributable to the disappearance of a unique form of life. Courts are ill-equipped to calculate how many dollars must be invested before the value of a dam exceeds that of the endangered species.²⁹

The court even went so far as to say the Act could require that water not be impounded behind a completed dam if [7 ELR 10052] an endangered species were discovered the day before such impoundment was to take place: "Conscientious enforcement of the Act requires that it be taken to its logical extreme." The court rejected the line of cases exempting on-going projects from NEPA because of the basic difference between the two laws: NEPA is essentially procedural, requiring that environmental factors be adequately considered, while the Endangered Species Act is substantive, unequivocally stating that the federal government shall not take actions which threaten listed species or their habitat.

Secondly, the court rejected the argument that continuing appropriations provided congressional ratification for the project. Courts are bound to uphold the law, and Congress may not, by implication, create exceptions to express statutory mandates. Thus, congressional appropriations for executive actions must, under the separation of powers doctrine, be dependent upon judicial affirmation.

In a strictly legal sense, the Sixth Circuit's decision is not surprising and undeniably conforms to the Endangered Species Act. The issue was clear on the facts, and the court simply enforced the law as written, thereby enforcing Congress' explicit intent in passing the Act of protecting endangered species from the harmful effects of federal projects.

The Consequences

It also comes as little surprise that there is now conflict over the consequences of the court's decision stopping an $80 million project just short of completion in order to save a three-inch fish. This whole matter, however, must be placed in the proper perspective. What has happened is that Congress has been handed the matter for a political resolution³⁰ and could undoubtedly specifically exempt the Tellico project from the Act just as certain projects have been exempted from compliance with NEPA.³¹

Before it does so, however, a full look at the present value of the Tellico project would seem appropriate, and this reexamination of the project's cost-benefit ratio is precisely what the plaintiffs in Hill v. Tennessee Valley Authority really want. Such an appraisal is not necessarily moot even at this late date since a large portion of the money already spent has gone to purchase property and to build roads, items which will continue to have value. In addition, there already has been a substantial economic benefit to the region from the project's expenditures.

This successful application of the Endangered Species Act has, however, created a great danger to the statute's integrity. The statute was intended to protect particular species, and the Sixth Circuit enforced it exactly that way. But plaintiffs to some extent manipulated the Act to serve purposes far beyond merely preserving the snail darter. Critics of the Act may view the decision as another instance of the environmental movement using an environmental statute to interfere with economic development and attempt to eviscerate § 7.

If Congress should add to the Act language that typically qualifies mandatory statutes, such as "to the extent practicable," this would result in the same kind of judicial confusion and voluminous litigation that arose under NEPA. Another possible modification of § 7 would be restricting its protection to "significant" endangered species. This, however, would be inappropriately substituting simple layman's language for the difficult biological decisions that must be made in not only isolating species but deciding whether they are threatened with extinction. The workable solution is following the path that Congress has already cleared: it has expressed its concern for all species near extinction, but it retains the power, as the Sixth Circuit emphasized, to decide on a case-by-case basis that a particular species under particular circumstances does not deserve preservation.

If the Sixth Circuit's opinion is to be faulted, it would be on the ground that the alternative of transplanting the snail darter to another habitat was not fully spelled out. Successful transplanation would at least preserve the species if the dam is ultimately completed. TVA has made some attempts, unsuccessful to date, to transfer several hundred snail darters to a nearby river.If a listed species and its designated critical habitat does stand in the way of development, successful transplantation would at least obviate the ecological necessity for preserving the designated critical habitat.³² This solution would mitigate the apparently irreconcilable nature of the conflict between the project and § 7 and represent a realistic alternative to the legislative remand.

Conclusion

Coming within two weeks of each other, FWS's proposed regulations for implementing § 7 and the Hill decision strongly supporting strict enforcement of the provision decisively prove the significance of the Endangered Species Act. The substance of the final § 7 regulations and the congressional response to the Hill invitation to act will determine whether that significance will be eroded or reinforced.

1. 16 U.S.C. §§ 1531-1543, ELR 41825. The Act became law on Dec. 28, 1973.

2. 42 Fed. Reg. 4868 (Jan. 26, 1977), amending 50 C.F.R. pt. 17.

Parallel regulations were proposed by the National Marine Fisheries Service (NMFS, part of the Department of Commerce), 42 Fed. Reg. 4873, because the Secretary of Commerce has program responsibilities for certain species pursuant to Reorganization Plan No. 4 of 1970, 5 U.S.C. App. II, ELR 41025, and the Endangered Species Act. See also the Memorandum of Understanding Between FWS and NMFS Regarding Jurisdictional Responsibilities and Listing Procedures Under the Endangered Species Act of 1973 (Aug. 28, 1974). This Comment will refer only to the FWS proposed regulations.

3. 16 U.S.C. § 1536.

4. See generally, Wood, Section 7 of the Endangered Species Act of 1973: A Significant Restriction for All Federal Activities, 5 ELR 50189 (1975); Note, Obligations of Federal Agencies Under Section 7 of the Endangered Species Act of 1973, 28 Stan. L. Rev. 1247 (1976).

5. __ F.2d __, 7 ELR 20172 (6th Cir. Jan. 31, 1977), rev'g 419 F. Supp. 753, 6 ELR 20583 (E.D. Tenn. 1976).

6. Environmental Defense Fund v. Tennessee Valley Authority, 492 F.2d 466, 4 ELR 20225 (6th Cir. 1974), aff'g 371 F. Supp. 1004, 4 ELR 20120 (E.D. Tenn. 1973); 468 F.2d 1164, 2 ELR 20726 (6th Cir. 1972), aff'g 339 F. Supp. 806, 2 ELR 20044 (E.D. Tenn. 1972).

7. On November 10, 1975, the Department of the Interior declared the snail darter an endangered species. 40 Fed. Reg. 47505-06, 50 C.F.R. § 17.11(i). The most recent complete list of endangered and threatened species is found at 41 Fed. Reg. 47180-98 (Oct. 27, 1976), 50 C.F.R. § 17.11.

8. ELR 40336.

9. Endangered Species Conservation Act of 1969, P.L. 91-135, 83 Stat. 275. For a discussion of wildlife and endangered species protection prior to the 1973 Act, see Guilbert, Wildlife Preservation Under Federal Law in Federal Environmental Law 550-94 (Dolgin & Guilbert ed. 1974).

10. Listing under either of the two categories is governed by § 4(a)(1). Endangered species are also protected by the general prohibitions in § 9(a) against taking, possessing, transporting, or moving in commerce by "any person." Threatened species are protected by regulations issued pursuant to § 4(d) but in addition may be included under the § 9(a) prohibitions.

The Act protects not only wildlife but also endangered and threatened flora. Proposed plant protection regulations were issued on June 7, 1976, 41 Fed. Reg. 22916, and a proposed list of 1700 endangered and threatened plants was issued on June 16, 1976, 41 Fed. Reg. 24524.

11. Critical habitat is designated by the Secretary of the Interior pursuant to § 7. The original basis for determining critical habitat is found at 40 Fed. Reg. 17764-65 (Apr. 22, 1975).

12. The House and Senate reports say nothing about § 7 or merely reiterate its language. H.R. Rep. No. 93-412, 93d Cong., 1st Sess. (July 27, 1973); S. Rep. No. 93-307, 93d Cong., 1st Sess. (July 1, 1973). Representative Dingell, during the congressional debates, made the fullest exposition of § 7:

The purposes of the bill include the conservation of the species and of the ecosystems upon which they depend, and every agency of Government is committed to see that those purposes are carried out. It is a pity that we must wait until a species is faced with extermination before we begin to do those things that we should have done much earlier, but at least when and if that unfortunate stage is reached, the agencies of Government can no longer plead that they can do nothing about it. They can and and they must. The law is clear.

119 Cong. Rec. 42913 (1973).

13. Section 102 of NEPA, 42 U.S.C. § 4332, ELR 41010, requires only that environmental factors be considered in the decisionmaking process.The Supreme Court has recently indicated that substantive agency decisions involving NEPA are beyond the scope of judicial review. Kleppe v. Sierra Club, 96 S. Ct. 2718, 2731 n. 21, 6 ELR 20532, 20537 n. 21 (1976).

14. Sierra Club v. Froehlke, 534 F.2d 1281, 1303, 6 ELR 20448, 20454 (8th Cir. 1976).

15. See Sierra Club v. Coleman, 421 F. Supp. 63, 6 ELR 20798 (D.D.C. 1976), 405 F. Supp. 53, 6 ELR 20051 (D.D.C. 1975); Environmental Defense Fund, Inc. v. United States Agency for International Development, 6 ELR 20121 (D.D.C. 1975). The Export-Import Bank has also recently been sued on the question of the extraterritorial application of NEPA. Natural Resources Defense Council, Inc. v. Export-Import Bank of the United States, No. 77-0080 (D.D.C., filed Jan. 14, 1977)

16. § 4(b), 16 U.S.C. § 1343(b).

17. 42 Fed. Reg. 4872, proposed 50 C.F.R. § 17.94(a).

18. 16 U.S.C. § 662(b), ELR 41801.

19. 16 U.S.C. § 661.

20. 42 Fed. Reg. 4872, proposed 50 C.F.R. § 17.93(g)(2).

21. National Wildlife Federation v. Coleman, 529 F.2d 359, 6 ELR 20344 (5th Cir. 1976), rev. denied, 45 U.S.L.W. 3399 (U.S. Nov. 24, 1976). See generally, Comment, Implementing § 7 of the Endangered Species Act of 1973: First Notices from the Courts, 6 ELR 10120 (June 1976).

22. See, e.g., Ragland v. Mueller, 460 F.2d 1196, 2 ELR 20320 (5th Cir. 1972); Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323, 2 ELR 20162 (4th Cir. 1972); Named Individual Members of the San Antonio Conservation Soc'y v. Texas Highway Dep't, 446 F.2d 1013, 1 ELR 20379 (5th Cir. 1971).

23. 40 C.F.R. § 1500.13, ELR 46009.

24. 42 Fed. Reg. 4871, proposed 50 C.F.R. § 17.92 (emphasis added).

25. In this event, the action might constitute a violation of the § 9 prohibition against "taking." See note 10 supra.

26. See note 5 supra.

27. Hill v. TVA, 419 F. Supp. 753, 6 ELR 20583 (E.D. Tenn. 1976).

28. Hill v. TVA, __ F.2d __, 7 ELR at 20174-75 (6th Cir. Jan. 31, 1977).

29. __ F.2d __, 7 ELR at 20174 (6th Cir. Jan. 31, 1977).

30. It is not unusual for the political process to interfere with a decision made by a government agency. By granting "scenic river" status to North Carolina's New River, Congress and the President essentially vacated a Federal Power Commission license to build a pumped storage facility that would have flooded the river. See Comment, President Signs Bill Protecting New River, 6 ELR 10219 (Oct. 1976).

31. The Trans-Alaska Oil Pipeline was specifically exempted from NEPA in an amendment to § 28 of the Mineral Leasing Act of 1920, 30 U.S.C. § 185(t). See P.L. 93-153, 87 Stat. 576. When a massive infestation of blackbirds and starlings interfered with military activities at Ft. Campbell on the Kentucky-Tennessee border, Congress enacted a measure exempting the control program from NEPA. P.L. 94-207 (Feb. 4, 1976).

32. This may be one possible solution alluded to by Judge Celebrezze when he noted that the injunction would continue until, as one possibility, the snail darter's critical habitat was "materially redefined." Hill v. TVA, __ F.2d at __, 7 ELR 20176 (6th Cir. Jan. 31, 1977).