Attention: 1018-AT50,

Division of Policy and Directives Management

U.S. Fish and Wildlife Service

4401North Fairfax Drive, Suite 222

Arlington, VA 22203

Re: Proposed rule to Amend the Regulations Governing Interagency
Cooperation under the Endangered Species Act (ESA), 50 C.F.R. part 402,
published on August 15, 2008 at 73 Fed. Reg. 47,868 et seq.

On behalf of the Connecticut River Watershed Council (CRWC) and the
Vermont Natural Resources Council (VNRC) the Environmental and Natural
Resources Law Clinic at Vermont Law School (ENRLC) submits the following
comments in response to the captioned rulemaking. CRWC and VNRC object
to this proposal on procedural and substantive grounds. Procedurally,
this process is deeply flawed because it does not provide either
adequate information or reasonable time for the public to meaningfully
participate in a controversial decision with potentially grave
consequences for the nation's wildlife heritage and most imperiled
species. Substantively, the proposal represents an unjustified and
radical departure from the way the Section 7 consultation process---the
linchpin of the ESA---has been administered, interpreted and enforced by
the Secretaries of Interior and Commerce, as well as Federal courts,
over the past three decades.

As the Supreme Court said in *Tennessee Valley Authority v. Hill*,
Section 7 of the ESA represents "institutionalized caution" in federal
decision-making.[^1] Congress intended the consultation process to serve
as a critical check on mission-oriented agencies to insure that
protection of endangered species received the "first priority" in their
deliberations on programs and site specific actions that affect
protected species and their habitat.[^2] Congress has not seen fit to
alter this basic statutory command over the past 35 years, and the
Secretaries are not authorized to substitute their judgment for that of
the Congress by simply declaring that it is time to change the ground
rules and exempt action agencies from the duty to consult whenever they
deem it unnecessary.

For the following reasons, we urge the Secretaries to withdraw the
proposed rule and consider alternative approaches, examples of which are
provided below. The goal is not simply to relieve agencies of the
"burdens" of consultation. The goal is to make consultation a more
effective tool for addressing the grave threats to America's biological
heritage posed by climate change, habitat loss, and ecosystem
degradation caused by careless human activities.

**I.** **The Proposed Rule Violates the Procedural Requirements of the
Administrative Procedure Act (APA)**

A.  [The APA Requires Adequate Notice and a Meaningful Opportunity for
    Public Comment]{.underline}

The APA states that "the agency shall give interested persons an
opportunity to participate in the rule making through submission of
written data, views, or arguments."[^3] These requirements are more than
mere pro forma. The notice must provide enough information to enable the
public to evaluate the basis and purpose of a proposal; the comment
period must afford the public adequate time to respond with informed
comments and suggested alternatives; and the agency must give serious
consideration to the comments, provide thoughtful responses, and be
willing to modify proposals to address legitimate concerns.[^4] Courts
routinely require strict compliance with these procedural requirements
to insure that the public has a meaningful opportunity to participate in
government decisions having significant effects on public resources such
as endangered species.[^5] An agency has a "duty to identify and make
available technical studies and data that it has employed in reaching
the decisions to propose particular rules."[^6] Further, an agency
"commits serious procedural error when it fails to reveal portions of
the technical basis for a proposed rule in time to allow for meaningful
commentary.[^7] This proposed rule fails these fundamental requirements
for adequate participation by interested parties.

First, the comment period is too short. Recognizing that the initial
30-day comment period was patently unreasonable for a proposal of this
magnitude, the agencies have now extended the comment period for an
additional 30 days. This is still not adequate. The comment period
should be at least 90 days. No justification is offered for rushing this
process and shortchanging public participation in this fashion. Further,
this hasty approach is inconsistent with prior practices for public
participation in similar ESA rulemakings. For example, the comment
period for the proposed listing of the polar bear was 90 days and was
extended for an additional 15 days.[^8] The recently proposed rule to
delist the grizzly bear provided a 90 day comment period.[^9] The last
major rule affecting Section 7, adopted in 1986, initially had a 60-day
comment period, which was later extended to 90 days.[^10] The entire
rulemaking took two years. The changes proposed in this rule represent a
significant departure from the carefully crafted process that has been
in place for decades. In fact, the preamble to the proposed rule notes
that "there have been no comprehensive revisions to the implementing
Section 7 regulations since 1986."[^11] This fact counsels against a
rush to judgment. Though imperfect, the consultation process has reached
a point of equilibrium that ought not to be disturbed without careful
thought and broad participation by those affected. Unless done
carefully, there is a very real risk that the "solutions" being proposed
will create more problems than they solve. Redefining terms like
"indirect and cumulative effects" and introducing new concepts like
"essential cause" and "clear and substantial evidence" may well confuse
rather than clarify existing rules. The ill-advised proposal to
categorically exclude consideration of greenhouse gas (GHG) emissions
will inevitably lead to more litigation and uncertainty. Rather than
improve the process, the changes may in fact destabilize it and promote
the very "contentiousness" that the proposal seeks to reduce. The first
rule of medicine is to "do no harm." The Secretaries would do well to
heed this advice.

Second, the APA requires that the public be given more detailed
information to understand the reasons for the proposed change in policy
and the implications for both protected species and the regulated
community, so that interested parties are able to formulate thoughtful
comments and recommend alternatives to address clearly identified
problems with the existing rules. The information found in this proposed
rule is pitifully inadequate. No data is provided to enable the public
to independently assess how the consultation processes, both formal and
informal, have operated over time. No specific problems have been
identified other than generalized complaints about how "burdensome" the
process has become. No alternatives have been considered to address
perceived problems without eliminating the independent review required
by existing regulations. No information is provided on the benefits of
the existing process to species conservation and what will be lost as a
result of the proposed changes. Instead of facts and informed analysis,
the notice serves up a series of conclusory statements to the effect
that the time has come to take the shackles off the action agencies and
let them decide for themselves whether consultation is necessary, based
on criteria designed to unreasonably narrow the range of effects that
must be considered. Rather than provide objective, verifiable
information to inform the public and allow interested parties to make up
their own mind about the proposal, the notice seems designed to persuade
the public that the proposal is a modest tweak of the existing rules and
there is no cause for concern. The proposal uses a hatchet where a
scalpel is called for.

By contrast, the notice accompanying the 1986 rulemaking was filled with
useful information to provide a sound scientific and policy context for
the consideration of consultation procedures, along with a detailed
description of key terms such as indirect and cumulative effects that
trigger consultation.[^12] The information contained in the notice is
inadequate to explain exactly how the proposed rule will improve the
consultation process without having negative consequences for protected
species. The public cannot be expected to evaluate regulatory and policy
proposals in a vacuum.

> B**.** [Public Participation Is an Important Element of Sound
> Environmental Decision Making]{.underline}

The National Research Council (NRC) has just published an extensive
study of the role of public participation in environmental assessments
and decisions.[^13] The NRC found that "on average, public participation
is associated with better results, in terms of criteria of quality,
legitimacy, and capacity."[^14] The study also determined that in order
to be most effective, the agency must take the process seriously and
must make the process fair.[^15] The report defines "a fair decision" as
"one in which all those affected by a decision have an opportunity to
participate meaningfully . . . and in which those empowered to decide
take participants' views seriously."[^16] The report goes on to
specifically include in this definition "the opportunity to voice
opinions and concerns."[^17] The report noted that fairness is not only
a desirable goal for its own sake, but it also enhances public
satisfaction and increases acceptance of the decision.[^18]

The report notes the following key factors to facilitating effective
public participation:

> • ensuring transparency of decision-relevant information and analysis,
>
> • paying explicit attention to both facts and values,
>
> • promoting explicitness about assumptions and uncertainties,
>
> • including independent review of official analysis and/or engaging in
> a process
>
> of collaborative inquiry with interested and affected parties, and
>
> • allowing for iteration to reconsider past conclusions on the basis
> of new
>
> information.[^19]

The proposed rulemaking fails on each one of these factors. Accordingly,
it should be abandoned in favor of a more open process designed to
elicit more useful information.

> C. [The Proposed Rule Forecloses Meaningful Public Participation
> Because the Outcome of the Rulemaking Has Already Been
> Decided]{.underline}.

In announcing his decision to list the polar bear as a threatened
species on May 14, Secretary Kempthorne vowed to prevent the ESA from
being used to set climate policy.[^20] The proposed rule is one of the
means chosen by the Secretary to prevent the ESA from being used to
address the threat of climate change notwithstanding the Secretary's
acknowledgement that the accelerating melting of the Arctic caused by
greenhouse gases (GHG) threatens the very survival of the polar bear.
The Secretary also directed the Director of the U.S. Fish and Wildlife
Service to issue guidance to agency staff instructing them not to
consider the impacts of greenhouse gas emissions.[^21] In announcing
this proposed rulemaking on August 12, Secretary Kempthorne further
stated: "\[I\]t is not possible to draw a direct causal link between
greenhouse gas emissions and distant observations of impacts affecting
species."[^22]

This kind of categorical statement is not only wrong as matter of
law---the ESA does not require proof of a "direct causal link" before
preventive action must be taken---it also misrepresents the evolving
state of the science of climate science. Science is a process, not a
moment in time, and our understanding of climate impacts is growing
daily as data from field observations show an accelerating rate of
change in the Arctic and other ecosystems.[^23] Given Secretary
Kempthorne's pronouncements, it is clear that he has made up his mind
and is not open to opposing points of view or reasoned arguments why
this is not good policy under the ESA. Thus, the outcome of this
rulemaking has been fore-ordained: the rules are going to be changed so
that federal agencies can turn a blind eye to the consequences of their
decisions to authorize, fund, or carry out actions that increase
atmospheric loadings of GHG. This is not only irrational as a matter of
sound science and public policy, it flatly contradicts the statutory
command that the consultation process must incorporate the "best
scientific and commercial data [available]{.underline}" at the time
decisions are being made.[^24] The Secretary is not authorized to freeze
science by administrative fiat.

Taken together these statements and actions disclose a clear
predisposition to adopt the proposed changes to the existing regulations
regardless of what the public thinks about it. This kind of governmental
bias, based more on politics than on science and law, makes a mockery of
the public participation process and forecloses any meaningful
consideration of opposing points of view or alternatives.

**II. The Proposed Rule Fails to Provide the "Reasoned Analysis"
Required by U.S. Supreme Court Precedent to Justify a Change in
Longstanding Agency Policy and Regulatory Interpretation**

A.  [The Court's Decision in *Motor Vehicle Manufacturers Ass'n v. State
    Farm Mutual* Sets a High Bar When Agencies Decide to Change
    Course.]{.underline}[^25]

In the *State Farm* case, the Supreme Court invalidated a rule[^26] on
several grounds that are pertinent here. First, the Court ruled that the
agency's failure to adequately explain its reasons for repealing a rule
adopted by a previous administration rendered its decision arbitrary and
capricious.[^27] The Court stated:

> An agency's view of what is in the public interest may change, either
> with or without a change in circumstances . . . . But an agency
> changing its course must supply a reasoned analysis. We . . . conclude
> that the agency has failed to supply the requisite "reasoned analysis"
> in this case.[^28]

Second, the Court ruled that the agency's failure to provide evidence to
support its rationale for changing direction rendered its decision
arbitrary and capricious. The Court stated: "\[T\]he agency must examine
the relevant data and articulate a satisfactory connection between the
facts found and the choice made."[^29] The Court also said that an
agency may not rely on factors that Congress had not intended it to
consider; and that it must "cogently explain why it has exercised its
discretion in a given manner."[^30]

Third, the Court ruled that failure to consider reasonable alternatives
to the proposed rule rendered the agency's decision arbitrary and
capricious.[^31] The Court noted that even though an agency may have
grounds for modifying an existing rule, it was not entitled to jettison
the entire rule without explaining why a more measured approach should
not be followed.[^32] The Court citied *Burlington Truck Lines, Inc. v.
United States* for the principle that "\[t\]he agency must make findings
that support its decision and those findings must be supported by
substantial evidence."[^33] No such findings or evidence have been
presented here.

B.  [The Proposed Rule Does Not Meet the *State Farm*
    Standards]{.underline}

The preamble to the proposed rule contains a laundry list of reasons to
support the proposed rule change, none of which survive scrutiny. First,
the preamble notes that "there have been no comprehensive revisions to
the implementing Section 7 regulations since 1986."[^34] However, the
mere passage of time is not a reason to change course. Indeed the fact
that the consultation process has been functioning for a long time
suggests a certain degree of stability and predictability that ought to
be carefully weighed before changes are made. Change for the sake of
change is not rational. No process is perfect and improvements, if
carefully crafted to achieve statutory purposes, should always be
welcome. But wholesale changes designed to limit the scope of the
consultation requirement and exclude entire categories of activities
from independent review by the Services demand more justification than a
simplistic "it's time for a change."

Second, the preamble states that "the Services have gained considerable
experience implementing the Act as have other federal agencies."[^35]
Again, this statement of the obvious does not supply a reasoned basis
for change. The maxim "If it ain't broke, don't fix it" comes to mind.
Nowhere does the notice describe exactly what is broken much less
explain how the proposed changes will improve the conservation
objectives of the ESA. Rhetoric is not a substitute for rational
explanation. The fact that the agencies have considerable experience
with the existing process is actually a good reason [not]{.underline} to
make major changes, especially changes such as redefining terms of art
like "indirect and cumulative effects" that have a substantial body of
settled law and policy behind them. To the extent the proposal is based
on the notion that the action agencies no longer need input from the
Services because they can be trusted to do the right thing by
themselves, it belies the reality that courts are continuously called
upon to correct repeated violations of the Act by recalcitrant
agencies.[^36] Moreover, it represents a judgment directly at odds with
the one Congress has made. Congress did not mandate consultation "until
such time as the Secretary of Interior deems it unnecessary." The
Secretary has not been given unfettered discretion to decide when
consultation is required and what effects will be considered. Further, a
long line of Secretaries have already exercised discretion as embodied
in rules that have been on the books at least since 1986.[^37] The
teaching of *State Farm* and many other Supreme Court cases[^38] is that
agencies are not entitled to change longstanding polices and
interpretations unless there are good reasons for doing so supported by
substantial evidence in the record.

Third, the proposal relies heavily on a 2004 report by the Government
Accountability Office to justify the need for overhauling the
consultation process.[^39] The preamble lifts selective quotes from the
GAO report selectively quotes to observe that, despite improvements, the
consultation process remains "contentious"[^40] and that action agencies
find it "burdensome."[^41] However, the preamble fails to mention the
fact that in a follow-up report and testimony before Congress, GAO had
this to say:

\[W\]ith regard to the consultation process, while FWS and NMFS have
continued to take steps to expand their collaboration processes, the
agencies did not believe that disagreements about the consultation
process require additional steps.  They believe that current training
and guidance is sufficient to address questions about the process.[^42]

The omission of this critical piece of information raises troubling
questions regarding the transparency and integrity of this rulemaking.
There is simply no evidence to support the position that the problems
with the existing process are so severe that it is necessary to exempt
action agencies from the consultation requirements altogether for an
undefined but potentially huge number of activities that have
historically been subject to the requirement. The GAO report does not
recommend any such radical changes and in fact acknowledges the benefits
to species from having the Service's undiluted expert advice and
recommendations factored into agency decisions. In its 2004 report GAO
concluded:

> Clearly, there is no boilerplate approach to handling consultations.
> The nature of different species' biologies, dynamic ecosystems, and
> the multitude of activities performed and their various levels of
> effects, makes the consultation process a difficult task that is
> dependent on understanding specific conditions and exercising a
> healthy dose of best professional judgment. Hence, even with a perfect
> process, there will always be disagreements.[^43]

Moreover, Congress understood that requiring consultation would require
"mission-oriented" agencies to change the way they did business. Indeed,
that is the whole point of consultation. Congress did not view this as
imposing unnecessary "burdens" on the agencies. Rather Congress made the
policy decision that saving species from extinction required federal
agencies to make more thoughtful decisions and give higher priority to
species conservation when evaluating alternative courses of action. Over
the years Congress has considered various proposals to "reform" the
consultation process, but to date has not seen fit to alter the basic
mandates of Section 7. Further, it is unfair and misleading to suggest
that the Services are responsible for whatever "contentiousness" may
exist in the consultation process. The history of the consultation
process under Section 7 suggests that the problems encountered have more
to do with the failure of the agencies to [comply]{.underline} with the
Act and the regulations rather than with the regulations
themselves.[^44] Only a cynic would argue that the way to rectify
problems in a relationship is to simply eliminate one of the parties. By
design, the consultation process involves a degree of creative tension.
Collaboration is always preferable to confrontation, but there is only
so much a regulation can do to promote cooperation. It is up to agency
managers and professionals to work out their differences in a
cooperative and productive manner. That does not happen by
administrative fiat; it takes leadership and example to make any program
run smoothly.

Fourth, the preamble cites the need to promote more "efficiency" in the
consultation process.[^45] But efficiency is not an end in itself;
rather, insuring protection of endangered species is the paramount
objective mandated by the statute. Improving efficiency is a worthy goal
so long as it does not come at the expense of protecting species. The
preamble states:

> \[T\]he Services believe it is not an efficient use of limited
> resources to review literally thousands of proposed Federal agency
> actions in which take is not anticipated and the potential effects are
> either insignificant, incapable of being meaningfully evaluated,
> wholly beneficial, or pose only a remote risk of causing jeopardy or
> adverse modification or destruction of critical habitat.[^46]

This bald assertion begs the question whether a proposed agency action
will in fact have any of the negative consequences mentioned. Section 7
covers a broad array of activities authorized, funded or carried out by
federal agencies. It is not possible to judge the significance of the
effects of these actions on protected species in the abstract. The whole
point of consultation is to infuse the expertise of the Services into
the process of determining [whether]{.underline} a given activity will
or will not adversely affect one or more listed species or their
critical habitats. Such determinations require a great deal of knowledge
about the life histories and habitat requirements of different species,
as well as professional judgment developed over years of study and
actual field experience dealing with the affected species. With rare
exception this kind of expertise can only be found in the Services. It
often takes a team of experts to evaluate risks and make sound
decisions, especially when dealing with species hovering on the brink of
extinction, where mistakes can be irreversible.

Finally, the preamble notes the need for "common sense modifications" to
the Section 7 regulations to provide "greater clarity and certainty" in
order to deal with the impacts of climate change.[^47] However, the
preamble fails to identify where the existing regulations are unclear
and uncertain. In fact, the language of the current regulations is
remarkably clear and specific in defining key terms such as "effects,"
"indirect effects" and "cumulative effects."[^48] These terms have been
in use for over a quarter century. They are the object of numerous
agency guidance documents and have been analyzed in many court
decisions. The problem is not lack of clarity; rather, the problem seems
to be that the existing regulations would require consideration of
effects that the current administration, as expressed in the
aforementioned statements of Secretary Kempthorne, objects to being
considered under the ESA. In fact, as described below, the proposed rule
introduces far more confusion, uncertainty and problematic terminology
into the regulations than currently exists. Again, the Secretary is not
free to substitute his policy judgment for that of the Congress. As the
Court said in *Federal Communications* *Commission v. RCA,* "Congress
did not purport to transfer its legislative power to the unbounded
discretion of the regulatory body."[^49] Congress has not seen fit to
carve out a "climate change exception" to the procedural and substantive
requirements of the ESA. Unless and until it does, there is no statutory
basis for creating an administrative exception for certain kinds of
scientifically established effects such as the impact of GHG emissions
on climate and ecosystems.

**III**. **The Failure to Consider Reasonable Alternatives to Streamline
the Consultation Process Without Compromising the Conservation Goals of
the Act Renders the Proposed Rule Arbitrary and Capricious**.

As mentioned, the *State Farm* case stands for the principle that in
considering changes to regulations, agencies should exercise care and
restraint to avoid throwing the baby out with the bathwater. The
preamble does not consider any alternatives to the proposed rule and
does not even invite the public to submit recommendations, providing
further proof that the notice and comment process is pro forma. Assuming
there is a need to improve the consultation process in order to deal
with the challenging and complex causes and consequences posed by
climate change, there are a number of alternatives that deserve
consideration before a new rulemaking proposal is launched. The
following list is provided as examples of measures that could be
considered.

> •Programmatic Consultations: This technique has been used in a number
> of areas to streamline the consultation process where federal agencies
> are engaged in ongoing programs with a large number of individual
> actions to consider. Examples of programmatic consultation agreements
> include the U.S. Department of Transportation on highway
> projects;[^50] Environmental Protection Agency on the implementation
> of regulatory programs under the Clean Water Act;[^51] and the Army
> Corps of Engineers (Corps) and Bureau of Reclamation on the operation
> of dams and hydropower projects.[^52]
>
> • Development of a de minimus threshold for consideration of
> greenhouse gas emissions from small sources. The concept of de minimus
> exception is used in a variety of regulatory programs---for example
> under the Clean Water Act's anti-degradation policy,[^53] and under
> the Clean Air Act's New Source Performance Standards.[^54]
>
> • Use of NEPA's significant effects threshold as a surrogate for
> Section 7 consultation on projects involving GHG emissions. In other
> words, consultation is triggered whenever a federal action is subject
> to NEPA requirements.
>
> • Use of offsets as reasonable and prudent alternatives to actions
> that result in increased GHG emissions. Offsets must meet certain
> standards for "additionality" and verifiability, but they are an
> integral strategy to nearly every climate change proposal. Congress is
> currently considering bills such as Lieberman-Warner to authorize a
> cap and trade program including offset provisions. Regional cap and
> trade programs, such as the Regional Greenhouse Gas Initiative in the
> Northeast, already provide a framework for offset credits.
>
> • Use of programmatic incidental take statements. Though this must be
> done thoughtfully and with due regard for cumulative and synergistic
> effects of many seemingly small "takes," it may have potential to
> streamline the consultation process where small contributions of GHG
> are involved.

In addition to the foregoing administrative alternatives, there is the
alternative of going back to Congress with a well-thought-out proposal
for amendments that would strengthen the Act and provide better tools to
deal with the unprecedented challenges of climate change.

**IV. The Proposed Rule Violates the National Environmental Policy Act
(NEPA)**.

NEPA applies to all "major federal actions significantly affecting the
quality of the human environment."[^55] The term "major federal action"
includes the "\[a\]doption of official policy, such as rules,
regulations, and interpretations adopted pursuant to the Administrative
Procedure Act. . . ."[^56] In general, NEPA applies to ESA decisions
that may significantly affect the environment.[^57] Where doubt exists
regarding the significance of environmental impacts stemming from a
federal action, the Council on Environmental Quality Regulations require
preparation of an Environmental Assessment (EA).[^58] Courts have held
that adoption of regulations limiting an agency's ability to take
account of environmental impacts requires compliance with NEPA.[^59]

As the court in *Citizens for Better Forestry v. U.S. Department of
Agriculture* stated: "NEPA does indeed contemplate preparation of EAs
and EISs in the case of programmatic rules and changes."[^60] In a case
strikingly similar to this one, conservation organizations challenged
promulgation of a Bush administration rule replacing a longstanding rule
governing planning on the National Forests. Plaintiffs alleged that the
Forest Service violated NEPA by failing to prepare a "programmatic
environmental impact statement." The Forest Service argued that NEPA did
not apply because the rule was purely procedural and would have "no
physical impacts on the ground."[^61] The court rejected this argument
noting that "EAs and EISs have been prepared in the case of programmatic
and policy changes;" and that "\[t\]here is no reason that the same
requirements should not apply to a *nationwide* programmatic change such
as the promulgation of the 2005 Rule."[^62]

Similarly, here we are dealing with a nationwide programmatic change in
the consultation process that is likely to have significant impacts on
the environment beyond the impacts on protected species. In fact, the
proposal makes clear that the types of effects that would be required to
be considered under NEPA will [not]{.underline} be taken into
account.[^63] At a minimum, the Secretaries must prepare an EA and a
record which discloses to the public the consequences of this narrowing
of environmental impacts to be considered in the consultation
process.[^64]

**V. The Proposed Rule Violates the Affirmative Duty to Conserve under
Section 7(a)(1)**.

Section 7 (a) (1) mandates that: "The Secretary shall review other
programs administered by him and shall utilize such programs in
furtherance of the purposes of this Act.[^65] This provision further
provides that "all \[\] federal agencies shall, in consultation with and
with the assistance of the Secretary, utilize their authorities in
furtherance of the purposes of this chapter by carrying out programs for
the conservation of endangered species and threatened species. . . ."
Together, these twin commands create mandatory duties enforceable
through the ESA citizen suit provision.[^66] The duty to conserve is
ongoing and is triggered whenever the Secretary or other agencies
contemplate changes in programs affecting protected species.[^67]

Courts have also held the affirmative conservation duty applies to the
Secretaries in carrying out their responsibilities under the ESA.[^68]
The proposed rule violates this conservation duty and compounds the harm
by purporting to relieve other agencies of their duty to consult with
the Secretaries on conservation of individual species. There is no
question that species will receive less protection under the proposed
rule due to the constraints placed on consideration of indirect and
cumulative impacts.

**VI. The Proposed Rule Fails to Comply with the Requirements of
Executive Orders 12,866 and 12,988 and the Presidential Memorandum of
June 1, 1998**.

Executive Order 12,866 sought to promote efficiency and clarity in the
regulatory process. Section 1(12) requires that "\[e\]ach agency shall
draft its regulations to be simple and easy to understand, with the goal
of minimizing the potential for uncertainty and litigation arising from
such uncertainty.[^69] Similarly, Executive Order 12,988 Section 3
(a)(2)--(3) requires that "(2) The agency's proposed legislation and
regulations shall be written to minimize litigation; and (3) The
agency's proposed legislation and regulations shall provide a clear
legal standard for affected conduct rather than a general standard, and
shall promote simplification and burden reduction."[^70] The
Presidential Memorandum of June 1, 1998, entitled "Plain Language in
Government Writing," requests that agencies use clear logic and
organization and plain English in rules and regulations to facilitate
better understanding by the general public.[^71]

The proposed rule introduces new terms such as "clear and
substantial,"[^72] "wholly beneficial,"[^73] and "remote."[^74] Without
more precise definitions and some context, these terms are meaningless
jargon. Similarly, there are puzzling statements to the effect that
"\[f\]ederal action agencies understand that there are significant
consequences if they were to take an action that resulted in prohibited
take without an exemption through the Section 7 process."[^75] It is not
clear what this is supposed to mean. If the point is that consultation
is unnecessary because fear of liability will insure that the action
agency does the right thing that is a flimsy rationale for policy
making. It goes without saying that action agencies remain liable for
noncompliance with the ESA. But the point is that Congress imposed both
procedural and substantive duties under Section 7. Specifically,
Congress intended the consultation process to be pro-active, to foster
the kind of precautionary, enlightened decision making that would both
avoid prohibited impacts and seek out affirmative ways of conserving
species and improve their chances for survival and recovery.

The proposed rule overlooks the fact that action agencies do not always
know what the right thing to do is, or simply choose to pursue harmful
options. Indeed, it was problems of this kind that led to the Tellico
Dam fiasco where the Tennessee Valley Authority continued building in
the face of objections by the Fish and Wildlife Service (FWS) until the
case finally reached the Supreme Court which issued an injunction
touching off a political firestorm. Ultimately, Congress adopted
amendments to the Act to strengthen the consultation process and
prohibit agencies from making "irretrievable commitments" that might
foreclose conservation alternatives. The proposed rule seems to suggest
that all that is in the past and that all federal agencies are now on
the same page when it comes to understanding and following the
requirements of the ESA. But all one needs to do is review the judicial
decisions over the past few years to see that this Panglossian view does
not match reality.[^76] The point is that the Congress chose the
consultation process as the means for insuring that all federal agencies
meet both the letter and the spirit of the law, and the Secretaries are
not free to simply "opt out."

Additionally, the proposed rule is internally inconsistent. For example,
in the discussion about what constitutes an "indirect effect," the rule
states that "\[w\]e proposed to use the term 'essential' to denote that
the action is necessary for that effect to occur. That is, the effect
would not occur 'but for' the action under consultation . . ." [^77]
However, in the very next paragraph, the rule states "\[w\]e propose to
add the word 'essential' to capture the requirement that in some
instances there needs to be more than a technical 'but for'
connection."[^78] These two statements seem to pull in opposite
directions, and the reader is left wondering when the "but for" test
applies and when the "essential" test applies. As discussed below, there
is a further problem with the requirement that an action must be the
"essential cause" of an indirect effect, namely that it conflicts with
the established law on this point.

**VII. The Proposed Rule Would Unlawfully Delegate the Services'
Consultation Obligations to Other Agencies**.

A.  [The Act does not Authorize Agencies to Engage in
    Self-Consultation]{.underline}

There is a reason Section 7 is titled "Interagency Cooperation" and not
"[Intra-]{.underline}agency Cooperation." The purpose is to infuse the
decision making processes of the mission-oriented agencies with the
expertise and advice of the wildlife agencies. Congress deliberately
chose this formulation to create a system of checks and balances. The
current regulations require consultation on "[all]{.underline} actions
in which there is discretionary Federal involvement or control."[^79]
The only time that agencies are allowed to forego consultation is when
they determine there is no adverse effects on species or habitat from
such actions and the appropriate Service [concurs in
writing]{.underline}.[^80] This process is usually done through informal
consultation.[^81] Agencies are not authorized to make a unilateral
determination that an action is "not likely to adversely affect" a
species.[^82]

Under the proposed rule, however, agencies would be allowed to decide
for themselves whether the "effects" of their actions (as redefined by
the proposed rule) were sufficiently serious to trigger
consultation.[^83] Leaving aside, for the moment, the problem with the
way the proposal redefines "effects," the first problem with the is
self-consultation concept is that it has been emphatically rejected by
the courts. In *Washington Toxics Coalition*, the district court struck
down "counterpart regulations" adopted by the Environmental Protection
Agency (EPA) to govern consultation on the registration of pesticides
under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).
The court held that FWS could not delegate its consultation
responsibilities to EPA.[^84] Judge Coughenour found that, without
consultation, FWS could not "insure" that pesticides would not
jeopardize listed species.[^85] Addressing the dangers of
self-consultation Judge Coughenour stated:

> However, the Court *does* find that the uncorrected deficiencies
> pointed out in EPA\'s process beg the question of how the Services
> justified a finding that EPA\'s risk assessment *sans* Service
> concurrence would be as protective to listed species as the risk
> assessment accompanied by Service concurrence. EPA\'s risk assessment
> process is not only less protective than Service determinations, there
> is overwhelming evidence on the record that *without a Service check*,
> EPA risk assessments (leading to pesticide registrations) would
> actually result in harm to listed species.[^86]

On appeal, the Ninth Circuit upheld the lower court's decision that the
EPA had a mandatory obligation to consult.[^87] The Ninth Circuit
rejected EPA's argument that the ESA did not impose any duties
independent of FIFRA.

Consultation can be a complicated procedure, and even if action agencies
have a lot of experience with the consultation process from which to
draw, it is not their primary function or area of expertise. The
Services, on the other hand, have specialized expertise and unique
knowledge of each species, as well as decades of experience with the
consultation process. FWS, for example, has produced a 307-page handbook
providing guidance for the consultation procedure in great detail.[^88]

B.  [Prior Attempts to Delegate Consultation to Action Agencies Have
    Failed]{.underline}

In 2003, the Secretaries adopted "joint counterpart regulations" for
consultation under the Endangered Species Act to streamline the process
for proposed projects that supported the National Fire Plan as part of
the Bush administration's "Healthy Forests" initiative.[^89] The stated
purpose of the plan was to accelerate "fuel reduction" projects (i.e.
logging) on public lands to reduce catastrophic wildfires and promote
"ecosystem restoration." The regulations authorize the U.S. Forest
Service and the Bureau of Land Management to determine that qualified
projects are "not likely to have an adverse effect" (NLAA) on listed
species without the concurrence of the Service, thereby circumventing
the interagency consultation process.[^90]

In a review of the first year of the program published in January, 2008,
the Services found that the Forest Service and the Bureau of Land
Management failed to meet the agreed-upon criteria on over half of their
projects.[^91] The report documents that in project after project, the
NLAA determinations were based on inadequate information, or faulty
analysis, or failure to explain conclusions, or some combination of all
of the above. A fifty percent failure rate would be unacceptable in most
circumstances, but when dealing with imperiled species it is
particularly troublesome.[^92]

As mentioned, counterpart regulations on EPA's pesticide registration
program[^93] were struck down by the court in the *Washington Toxics
Coalition* case discussed further below. The poor track record of these
experiments in self-consultation raises serious questions about the
wisdom of extending the idea to the entire federal government.

Finally, requiring each federal agency to duplicate the expertise that
already exists with the Services is inefficient and illogical. It is not
the job of the action agencies to keep track of the locations and
movements, let alone individual life histories and biological statuses,
of over 1700 species that are currently on the list. That is the job of
the Services. Furthermore, when it comes to determining whether a "take"
might occur, the issues are a good deal more complex than the proposal
would lead one to believe. The definition of take includes more than the
obvious problems of killing or directly injuring a listed species. It
involves complex analyses of whether actions "harm" a species through
habitat modification or "harass" it to the extent that the activity
substantially interferes with essential behavioral characteristics like
breeding, feeding and sheltering.[^94] Action agencies cannot be
expected, or in some cases even trusted, to take a hard look at their
actions to determine whether a take may occur. Congress understood this
and structured the consultation process to guard against harm to species
whether deliberate or inadvertent.

**VIII. The Proposed Rule Seeks to Unreasonably Narrow the Scope of
Effects to be Considered**.

A.  [The Proposed Definitions of Effects and Causation Are Confusing and
    Tautological]{.underline}.

It is often unclear what the rule means because the language is
circular. In one place, it proposes "to exclude from consultation
actions that are 'insignificant contributor\[s\]' to any effect on
listed species or critical habitat."[^95] Yet in another place, the
proposal suggests that "it may be appropriate to address \[a remote
effect\] as it relates to the baseline or cumulative effects
analysis."[^96] These statements cause confusion over when and how
effects are to be considered.

The preamble only adds to the confusion by attempting to explain what
the terms "caused by" and "reasonably certain to occur" are intended to
mean. In an attempt to clarify the phrase "reasonably certain to occur,"
the proposed rule suggests it means "more than just likely to
occur."[^97] It is not clear what this new language adds to the existing
language. What is the difference between something that is "reasonably
certain to occur" and something that is "more than just likely to
occur?"

The test for when consultation is required is also confusing. The
proposed rule first exempts from consultation any agency action where
"no take is anticipated."[^98] However, whether a take should be
"anticipated" is not that easy to determine, and no evidence is
presented showing that agencies are capable of making correct
determinations without the expert assistance of the Services. Indeed, as
pointed out above, the track record on self-consultation points to the
opposite conclusion. The proposed rule seeks to justify this
self-consultation by arguing that "an evaluation of the current
regulations make it clear that no consultation was contemplated for
these situations...."[^99] However, the text of the existing regulations
contains no such exemption; nor have the regulations been interpreted
that way over the past quarter century. Obviously, consultation is not
required when a proposed action will have no effect on listed species or
habitat, but saying that an action will have no effect does not make it
so. As mentioned, no court has ever sanctioned a unilateral "no effect"
determination by the action agencies.

The proposed rule seeks to add a bevy of possible exceptions to the
consultation requirement, including when the agency determines that an
action is "an insignificant contributor,"[^100] or when the action
agency finds that "the effects of such action on a listed species or
critical habitat . . . are wholly beneficial."[^101] These exceptions
are often poorly explained, to the extent that they could not be
consistently applied (as in the case of the phrase "insignificant
contributor"), and in some cases, the rule makes no attempt to define or
clarify the exception at all (e.g. the phrase "wholly beneficial"). This
is not only a problem of clarity with the proposed rule, but it also
undermines the substantive protections of the ESA.

By creating a broad and vague list of exceptions to the actions to which
Section 7 applies, the proposed rule shifts the burden to third parties
to show that an action will affect a species. This flies in the face of
the language of the statute which places the burden on each federal
agency to "insure that [any]{.underline} action authorized, funded, or
carried out by such agency...is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in
the destruction or adverse modification of habitat of such species . .
."[^102]

B.  [The Proposed Rule Imposes an Unlawfully Stringent Standard for
    Determining Causation]{.underline}.

The proposed rule goes to great lengths to limit what kinds of actions
and effects trigger consultation. The preamble states that indirect
effects can only be considered when the federal action is the "essential
cause." The preamble adds further gloss by stating that it is not enough
for the action to be a "but for cause;" it must also be "indispensable
to the effect."[^103] Further, only "clear and substantial" evidence may
be used to establish causation. There is no precedent for this cramped,
convoluted definition of causation under the ESA. It raises the bar far
too high and defies basic science and common sense. Ecological effects
are by their very nature complex and multi-dimensional. Rarely is there
just one factor involved in causing an impact on species or increasing
the risk of extinction. The current regulations requiring consideration
of indirect, cumulative and synergistic effects were developed with
careful attention to the subtle ways in which species and habitat
disappear little by little, and how short-sighted federal decisions have
unnecessary and unintended consequences.

This "indispensable" standard not only lacks any basis in the statute or
current regulations, it also contradicts longstanding court decisions
interpreting the scope of effects that must be considered under the ESA.
The seminal case on indirect effects is *National Wildlife Federation v.
Coleman*, dealing with the effects of building an interstate highway
through habitat of the Mississippi sandhill crane.[^104] In ruling that
the Department of Transportation (DOT) must take into account the
indirect effects of development around the highway interchanges, even
though they were not part of the federal project, the court said:
"Principal among the indirect effects of the highway on the crane is the
residential and commercial development that *can be expected* to result
from the construction of the highway."[^105] The court went on to say
that "\[t\]he fact that \[additional development encouraged by the
agency action\] does not result from direct federal action does not
lessen the \[DOT's\] duty under \[Section\] 7."[^106] Similarly, in
*Riverside Irrigation District v. Andrews*, the court held that the
Corps of Engineers was required to consider the indirect effects of a
water project even though the effects were three hundred miles
downstream, noting: "To require \[the Corps\] to ignore the indirect
effects that result from its actions would be to require it to wear
blinders that Congress has not chosen to impose."[^107] Thus, under
controlling caselaw, there is no requirement that an action be the
"essential cause" let alone an "indispensable cause" in order to trigger
the requirement to consider indirect effects. The preamble fails to
acknowledge these judicial precedents or cite any countervailing
authority for its novel interpretation of indirect effects.

C.  [The "Clear and Substantial Information" Test Conflicts with the
    ESA's "Best Available Information" Standard]{.underline}**.**

The preamble states: "A conclusion that an effect is reasonably certain
to occur must be based on clear and substantial information."[^108]
There is no basis for this "clear and substantial" language in the ESA,
the existing regulations, or the caselaw. In fact, Section 7 (a)(2)
clearly states that "\[i\]n fulfilling the requirements of this
paragraph each agency *shall use the best scientific and commercial data
available*."[^109] Since the statute specifically designates a standard
for the information upon which decisions must be made, it is
inappropriate to substitute a new standard with no basis in law. In
fact, the controlling law is the opposite. In *Defenders of Wildlife v.
Babbitt*, the court held that a decision not to list the Canada lynx was
arbitrary and capricious because the FWS required "convincing evidence"
of endangerment.[^110] The court explained that the proper test was the
"best scientific and commercial data available" standard:

> The statutory standard, requiring that agency decisions be made on the
> "best scientific and commercial data available", rather than absolute
> scientific certainty, is in keeping with congressional intent in
> crafting the ESA. Congress repeatedly explained that it intended to
> require the FWS to take preventive measures *before* a species is
> "conclusively" headed for extinction.[^111]

Other courts have applied similar reasoning. In *Connor v. Burford*, the
Ninth Circuit held that an agency must consider the best information
available, and give the "benefit of the doubt to the species" where
information is incomplete.[^112]

More recently, the U.S. Supreme Court has recognized the growing
scientific consensus around the dangers of human-caused global warming
and its effects on species survival and ecosystem integrity. In
*Massachusetts v. E.P.A.*, the Court noted the scientific evidence of
the risks of "Number range CHAPTERsevere and irreversible changes to
natural ecosystems" posed by climate change. [^113] The Court went on to
criticize the Environmental Protection Agency for substituting its
policy preferences for those of the Congress[^114] and for not following
the plain text of the statute.[^115] This proposed rule commits the same
error. By disregarding the plain command that every federal agency must
consult on "[any]{.underline} action" and limiting consultation to those
actions proven by "clear and substantial evidence" to be the "essential
and indispensable cause" of the effect on species, the proposed rule
outruns the statute.

**IX. The Proposed Rule Imposes Arbitrary Time Limits on Informal
Consultation.**

One of the main concerns of the March, 2004 GAO report was the timing of
consultation.[^116] While the report notes that there is no time limit
for informal consultation, the policy is 30 days.[^117] The report
stated that informal consultation often exceeded this limit, but rarely
exceeded 60 days, and exceeded 120 days in only a few cases.[^118] The
proposed rule seeks to formally establish these time limits with a 60
day limit that can be extended to 120 days.[^119] GAO does not make a
recommendation to specifically set deadlines, but the more relevant
concern is whether the time limits are necessary and whether they will
be helpful in resolving the problems of timeliness in informal
consultation.

Since the vast majority of informal consultations are completed within
120 days, there is little reason to set a rigid limit of 120 days,
except to create a trap door to end consultation by default, even where
there may be perfectly rational reasons why the process cannot be
completed within 120 days. Instead, regulations should examine whether
there are underlying causes for delay in informal consultation. One
reason might be that the Services have not received enough information
from the action agency. Another could be that the situation is just too
complicated and more time is needed. In these cases, the time limit
confounds the purpose of the ESA by ending informal consultation and
precluding formal consultation in a situation where it might be greatly
needed.

**X**. **The Proposed Rule May Force Private Parties to Obtain
Incidental Take Permits Rather than Less Costly Incidental Take
Statements through the Consultation Process**

The proposed rule may have the unintended effect of limiting access to
Section 7 consultation for those developers who have a more limited
federal "hook" but consent to application of the consultation to the
full project. For example, consider a development project of 100
residential units in California that would involve the dredging and
filling of a 0.4 acre wetland under a Clean Water Act permit from the
U.S. Army Corps of Engineers and would also result in take of the
endangered vernal pool tadpole shrimp from that wetland. Upland portions
of the property may support kit fox, but none have been sited on the
property. In the past, ESA Section 7 would allow the Corps of Engineers
to consult with the Services on the full project's impacts to the shrimp
and the fox and require mitigation for both in order to issue the
permit. If the proposed rule were enacted, the Corps of Engineers would
be limited to consulting solely on the wetland fill. The project would
have no ESA take coverage for the kit fox. Excluding the full project
from Section 7 forces private developers to either pursue Habitat
Conservation Plans (HCPs) under Section 10 of the ESA, which involves a
much longer, more cumbersome and expensive process (and one that also
includes an internal Section 7 consultation) or decide to "risk it,"
potentially allowing projects to slip through the cracks. The proposed
rule states that its new causation standard will "simplify the
consultation process and make it less burdensome and
time-consuming,"[^120] but forcing development projects like the one
described above out of Section 7 will only increase the costs and
regulatory burdens, including increasing staff work load in preparing
HCPs, or result in projects that may not mitigate at all.

**XI. The Proposal to Categorically Exclude Consideration of Greenhouse
Gas Emissions Is Arbitrary and Capricious on its Face**.

The proposed rule states unequivocally: "These regulations would
reinforce the Services' current view that there is no requirement to
consult on greenhouse gas (GHG) emissions' contribution to global
warming and its associated impacts on listed species (e.g., polar
bears)."[^121] There are several problems with this kind of
head-in-the-sand statement of policy. First, there is no basis in law to
support it. This is the first time in the thirty five year history of
the ESA that the Secretary has announced, ex cathedra, that an entire
class of activities that are known to be endangering the polar bear,
coral reefs and countless numbers of species of plants and animals on
the planet will be excluded from consideration under the Act, regardless
of what is currently known or what may be known in the future as the
science of climate change evolves and circumstances change.[^122] This
is not a reasonable exercise of discretion; this is policy by fiat that
flies in the face of sound science and reasoned decision making. This
interpretation contravenes the precautionary principle embodied in the
ESA as reinforced by the Supreme Court in *Tennessee Valley Authority v.
Hill* and in other judicial decisions. As the D.C. Circuit famously
observed in construing the precautionary provisions of another federal
environmental statute, the Clean Air Act:

> Where a statute is precautionary in nature, the evidence difficult to
> come by, uncertain, or conflicting because it is on the frontiers of
> scientific knowledge, the regulations designed to protect the public
> health, and the decision that of an expert administrator, we will not
> demand rigorous step-by-step proof of cause and effect. Such proof may
> be impossible to obtain if the precautionary purpose of the statute is
> to be served.[^123]

Second, this policy statement defies what is already known about the
links between GHG emissions and the melting of the Arctic. Just last
month, on August 31, scientists revealed satellite images showing that
both the Northwest and the Northeast passages opened up for the first
time, making it possible to circumnavigate the North Pole.[^124]  "The
passages are open," said Professor Mark Serreze of the U.S. National
Snow and Ice Data Center. [^125] "It's a historic event. We are going to
see this more and more as the years go by."[^126] Until recently,
experts had not anticipated these passages opening until 2070.[^127] 
Now, many scientists feel the Arctic ice will melt completely during the
summer by 2030,[^128] and a study conducted this year by Professor
Wieslaw Maslowski at the Naval Postgraduate School in Monterey,
California, claimed all the ice will melt by 2013.[^129]  According to
researcher Walt Meier of the Center, "\[t\]o recover to the ice levels
of the 1980s would require many years in a row of cool conditions, and
that isn't going to happen under global warming conditions."[^130]

Third, the fact that no single source or category of sources of GHG is
responsible for climate change and the melting sea ice is beside the
point. The cutting down of one nest tree is not responsible for the
endangerment of the northern spotted owl. The operation of one dam is
not responsible for the decline of the Pacific salmon. The withdrawal of
one acre foot of water is not responsible for degrading the estuarine
habitat of the Delta smelt. The loss of one beach is not responsible for
endangering sea turtles. One ship strike is not responsible for the
precarious status of the Northern right whale. And so on. Extinction is
a process, not an event. Many factors are at work, some driven by
nature, others by humans. It is the cumulative effect of many
activities, large and small, that drives species towards extinction.
Success or failure is often measured in inches, not miles. Scientists
may not be able to link one specific event to climate change but they
can, and have, established the patterns of ecosystem disruption that
climate change is causing. As documented in the IPCC's Fourth
Assessment, the principal source of the problem is, to a ninety percent
certainty,[^131] anthropogenic sources of GHG,[^132] chiefly carbon
dioxide.[^133] Thus, every significant source of CO2 requires attention.
The ESA cannot do it all. No single law, or policy or technology can do
it all. There is no silver bullet; only "silver buckshot."[^134] We must
use every tool at our disposal including the ESA.

Fourth, the assertion that the ESA does not require consideration of GHG
smacks of the same rationale struck down by the Supreme Court in
*Massachusetts v. EPA*. There, as here, the agency argued that Congress
"did not intend" for the Clean Air Act to be used to address GHG
emissions.[^135] The Court gave short shrift to that argument, holding
that greenhouse gases were in fact "air pollutants" under the Act,[^136]
and that EPA must either regulate them or provide substantial reasons
for declining to do so.[^137] The Court was not impressed with arguments
that such regulations could prove contentious, costly, burdensome, and
might be ineffective when viewed in isolation.[^138] The Court noted
that even small, incremental progress was better than no progress at
all.[^139]

Fifth, the United States is responsible for the lion's share of the
global GHG emissions,[^140] and the Federal Government must begin now to
change its policies and programs in order to avert dire consequences for
all life on earth.[^141] Within the context of the ESA, federal agencies
"authorize, fund and carry out" a myriad of projects and programs that
are presently adding more GHG to the atmosphere each and every year. The
timeframe to turn this around is short. Scientists warn that we have
less than a decade[^142] to stabilize atmospheric concentrations of CO2
to avoid dangerous tipping points including melting of the ice caps, sea
level rise, loss of species and indigenous cultures, and many other
irreversible calamities.[^143] Change will not happen overnight but it
must begin now. In fact it should have begun long before now. The ESA is
one of the tools that can and must be employed.

Finally, no one claims this will be easy. There are a host of difficult
questions about how these GHG emissions ought to be factored into
consultations, and how to insure that time and effort are used
productively. But to declare upfront that nothing useful can come from
consultation, and to foreclose the use of the ESA to address GHG
emissions under any circumstances is reckless and irresponsible. Climate
change is an unprecedented threat to biodiversity and to humanity. To
prevail, humanity must do things that have never been done before and in
record time. The impossible must become the doable. The Secretary has it
exactly backwards: The ESA is not a backdoor policy on climate change;
rather it is in the eye of the storm.

**Conclusion**

For the foregoing reasons the undersigned organizations respectfully
request that the proposed rule be withdrawn and that the Secretaries
instead issue an advance notice of proposed rulemaking to solicit the
views of the public on ways to improve and strengthen the consultation
process to provide greater protections for species that are facing an
even more imminent threat of extinction from climate change.

Sincerely,

Patrick Parenteau

Professor of Law and Senior Counsel, Environmental and Natural Resources
Law Clinic

Lydia Fiedler, Clinician

David Deen, River Steward, Connecticut River Watershed Council

Jamey Fidel, Legal Counsel, Vermont Natural Resources Council

[^1]: Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194 (1978).

[^2]: *Id.* at 185.

[^3]: 5 U.S.C. § 553(c) (2006).

[^4]: *See, e.g.,* [Kenneth Culp Davis, Administrative Law]{.smallcaps}
    270 (1951) ("The mainstay of rule-making procedure...is party
    participation through such means as written comments upon tentative
    rules, consultations and conferences.").

[^5]: *See, e.g.,* Nat'l Wildlife Fed'n v. Norton, 386 F.Supp.2d 553,
    561 (D.Vt., 2005) ("Unfairness results unless persons are
    'sufficiently alerted to likely alternatives' so that they know
    whether their interests are 'at stake.'" (*citations omitted*));
    State of N.J., Dep't. of Envtl. Prot. v. U.S. Envtl. Prot. Agency,
    626 F.2d 1038, 1045--46 (D.C. Cir., 1980)("From this, it should be
    clear beyond contradiction or cavil that Congress expected, and the
    courts have held, that the various exceptions to the
    notice-and-comment provisions of section 553 will be narrowly
    construed and only reluctantly countenanced.").

[^6]: Kern County Farm Bureau v. Allen*,* 450 F.3d 1072, 1076 (9th Cir.
    2006).

[^7]: *Id.*

[^8]: Endangered and Threatened Wildlife and Plants; 12-Month Petition
    Finding and Proposed Rule To List the Polar Bear (Ursus maritimus)
    as Threatened Throughout Its Range, 72 Fed. Reg. 1064, 1064 (Jan. 9,
    2007)(codified at 50 C.F.R. pt. 17); Endangered and Threatened
    Wildlife and Plants; 12-Month Petition Finding and Proposed Rule To
    List the Polar Bear (Ursus maritimus) as Threatened Throughout Its
    Range, 72 Fed. Reg. 56,979, 56,979 (Oct. 5, 2007)(codified at 50
    C.F.R. pt. 17).

[^9]: Endangered and Threatened Wildlife and Plants; Designating the
    Greater Yellowstone Ecosystem Population of Grizzly Bears as a
    Distinct Population Segment; Removing the Yellowstone Distinct
    Population Segment of Grizzly Bears From the Federal List of
    Endangered and Threatened Wildlife, 70 Fed. Reg. 69,854, 69,854
    (Nov. 17, 2005) (codified at 50 C.F.R. pt. 17).

[^10]: Interagency Cooperation\--Endangered Species Act of 1973, as
    Amended; Final Rule, 51 Fed. Reg. 19,926, 19,927 (June 3,
    1986)(codified at 50 C.F.R. pt. 402).

[^11]: Interagency Cooperation Under the Endangered Species Act, 73 Fed.
    Reg. 47,868, 47,868 (proposed Aug. 15, 2008) (to be codified at 50
    C.F.R. pt. 402).

[^12]: *See* Interagency Cooperation\--Endangered Species Act of 1973,
    as Amended; Final Rule, 51 Fed. Reg. at 19,958 (defining "cumulative
    effects" and "effects of the action").

[^13]: Panel on Public Participation in Environmental Assessment and
    Decision Making, National Research Council, Public Participation in
    Environmental Assessment and Decision Making vii (Thomas Dietz and
    Paul C. Stern, eds., 2008), *available at*
    http://www.nap.edu/catalog/12434.html.

[^14]: *Id.* at 3-2.

[^15]: *Id.* at 2-17, 2-21.

[^16]: *Id.* at 2-22.

[^17]: *Id.* at 2-22.

[^18]: *Id.* at 2-23.

[^19]: *Id.* at ES-3.

[^20]: *See* Press Release, U.S. Department of Interior, Secretary
    Kempthorne Announces Decision to Protect Polar Bears under
    Endangered Species Act (Mar. 14, 2008) *available at*
    http://www.doi.gov/news/08_News_Releases/080514a.html ("'Listing the
    polar bear as threatened can reduce avoidable losses of polar bears.
    But it should not open the door to use of the ESA to regulate
    greenhouse gas emissions from automobiles, power plants, and other
    sources,' said Kempthorne.").

[^21]: *Id.*

[^22]: Press Release, U.S. Department of Interior, Secretary Kempthorne
    Proposes Narrow Changes to ESA Consultation Process (Aug. 11, 2008)
    *available at*
    http://www.doi.gov/news/08_News_Releases/080811a.html.

[^23]: *See, e.g.,* Eric Hand, *Antarctic ice loss speeding up*, [Nature
    News]{.smallcaps}, Jan. 9, 2008,
    http://www.nature.com/news/2008/080113/full/news.2008.438.html
    (reporting on a study which found that Antarctic sea ice loss in
    2006 was 75% greater than a decade earlier); *NASA: Sea Ice Melt
    Opens the Northwest and Northeast Passage*,
    [mongabay.com]{.smallcaps}, Sept. 9, 2008,
    http://news.mongabay.com/2008/0909-sea_ice.html (noting arctic
    melting great enough to allow circumnavigation of the north pole);
    Peter N. Spotts, *Shrinking Arctic Ocean Sea Ice Signals Climate
    Change*, [The Christian Science Monitor]{.smallcaps}, Sept. 4, 2008,
    http://features.csmonitor.com/environment/2008/09/04/shrinking-arctic-ocean-sea-ice-signals-climate-change/
    (reporting on the breaking off of a chunk the size of Manhattan from
    the Canadian ice shelf in early August); Stephen Leahy, *Climate
    Change: Arctic Meltdown Signals Long-Term Trend*, [Inter Press
    Service]{.smallcaps}, Sept. 5, 2008,
    http://www.ipsnews.net/news.asp?idnews=43803 (noting the
    unprecedented loss of sea ice during the summer of 2008 and quoting
    experts as saying "I'd be surprised if there are any ice shelves
    left in 10 years"); David Ljunggren, *Massive Arctic Ice Shelf
    Breaks Away*, [Reuters.com]{.smallcaps}, Sept. 3, 2008,
    http://www.reuters.com/article/newsOne/idUSN0246073320080903 ("The
    \[total amount of ice lost\] is more than 10 times the amount of ice
    shelf cover that scientists estimated on July 30 would vanish from
    around the island this summer."); Nathanial Gronewold, *ARCTIC: The
    Ice Melts Quickly, Generating Polar Disputes that May Fester for
    Decades*, [ClimateWire]{.smallcaps}, Sept. 8, 2008,
    http://www.eenews.net/public/climatewire/2008/09/08/1 (describing
    potential international governance issues caused by melting sea
    ice).

[^24]: 16 U.S.C. 1536 (a)(2) (2006) (emphasis added).

[^25]: Motor Vehicle Mfgrs. Ass'n v. State Farm Mut., 463 U.S. 29, 49
    (1983).

[^26]: The rule rescinded a requirement to install passive restraints in
    all new cars.  The decision to rescind the rule was made primarily
    because of the way the automobile industry planned to comply with
    the rule rather than a finding that the rule itself was flawed.
     *Id.* at 38.

[^27]: The fact that the proposed rule is described as an amendment
    rather than repeal of the existing rule is immaterial. The thrust of
    the proposal is to exempt a large class of federal actions from the
    consultation requirements, which is functionally the same as
    repealing the requirement. The net result is that thousands of
    federal actions will not be independently reviewed by the wildlife
    agencies. *See* Interagency Cooperation Under the Endangered Species
    Act, 73 Fed. Reg. 47,868, 47,868 (proposed Aug. 15, 2008) (to be
    codified at 50 C.F.R. pt. 402)(listing as one of the goals for the
    proposed changes " to reduce the number of unnecessary
    consultations.").

[^28]: *State Farm,* 463 U.S. at 34.

[^29]: *Id.* at 43.

[^30]: *Id.* at 48.

[^31]: *Id.* at 53.

[^32]: *Id.* at 47--48.

[^33]: Burlington Truck Lines, Inc. v. U.S., 371 U.S. 158, 168.

[^34]: Interagency Cooperation Under the Endangered Species Act, 73 Fed.
    Reg. 47,868, 47,868 (proposed Aug. 15, 2008) (to be codified at 50
    C.F.R. pt. 402).

[^35]: *Id.*

[^36]: For example, see *Nat'l Wildlife Fed'n v. Nat'l. Marine Fisheries
    Service*, No. CV 01-640-RE, CV 05-23-RE, Number range CHAPTER2005 WL
    2488447 at \*2 (D. Ore., 2005), aff'd. 524 F.3d 917 (9th Cir. 2006),
    where Judge Redden , after detailing a ten year pattern of the
    agencies failure to correct violations of the ESA in the context of
    the operation of the federal hydropower system on the Columbia
    River, observed that:

    > If the Executive and Legislative Branches do not allow NOAA to
    > follow the law of the land, NOAA and the Action Agencies will fail
    > again to take the steps that are plainly necessary to do what the
    > ESA requires and what the listed species require in order to
    > survive and recover.

[^37]: See the rule promulgated in 1986 that changed the regulations
    related to Section 7 and note the substantial similarity to the
    language in that rule and the current regulations found at 50 C.F.R.
    §§402.02, 402.03, 402.13, and 402.14. Interagency
    Cooperation\--Endangered Species Act of 1973, as Amended; Final
    Rule, 51 Fed. Reg. 19926 (June 3, 1986) (codified at 50 C.F.R. pt.
    402).

[^38]: *Cf.* Skidmore v Swift, 323 U.S. 134, 140 (1941)

    > (Good administration of the Act and good judicial administration
    > alike require that the standards of public enforcement and those
    > for determining private rights shall be at variance only where
    > justified by very good reasons. . . . The weight of such a
    > judgment in a particular case will depend upon the thoroughness
    > evident in its consideration, the validity of its reasoning, its
    > consistency with earlier and later pronouncements, and all those
    > factors which give it power to persuade, if lacking power to
    > control.).

[^39]: Interagency Cooperation Under the Endangered Species Act , 73
    Fed. Reg. at 47,869.

[^40]: *Id.*

[^41]: *Id*.

[^42]: [United States Government Accountability Office, Endangered
    Species Act: Successes and Challenges in Agency Collaboration and
    the Use of Scientific Information in the Decision Making
    Process]{.smallcaps} (Testimony of Robin M. Nazzaro, Director of
    Natural Resources and Environment, Before the Subcommittee on
    Fisheries, Wildlife and Water, Committee on Environment and Public
    Works, United States Senate) 5 (2005) *available at*
    http://www.gao.gov/new.items/d05732t.pdf.

[^43]: [United States Government Accountability Office, ENDANGERED
    SPECIES: More Federal]{.smallcaps}

    [Management Attention Is Needed to Improve the Consultation Process
    (]{.smallcaps}Report to Congressional requesters) 58 (2004)
    *available at* http://www.gao.gov/new.items/d0493.pdf.

[^44]: *See, e.g.* Oliver A. Houck, *The Endangered Species Act and Its
    Implementation by the U.S. Departments of Interior and Commerce*, 64
    [U. Colo. L. Rev]{.smallcaps}. 277, 338 (1993) (noting the continued
    reluctance of BLM to cooperate with FWS' requests during
    consultation on timber sales).

    > It seems clear from the outset that Interior was intent on
    > triggering the exemption process, and that its participation in
    > consultation was characterized more by obstruction than by a
    > cooperative search for a jeopardy-avoiding course of action. Its
    > refusal to consult on its sales as a whole, its refusal to consult
    > on the draft biological opinions for the individual sales, its
    > insistence on immediate final opinions, and its refusal-before and
    > after these opinions-to consider non-jeopardy sales as
    > alternatives to jeopardy sales signal a 'rather-fight-than-switch'
    > attitude which is the very antithesis of what Congress intended
    > consultation to be. If this is a good faith search for
    > alternatives then it is hard to see what is not.

    *Id.*

[^45]: Interagency Cooperation under the Endangered Species Act, 73 Fed.
    Reg. 47,868, 47,869 (proposed Aug. 15, 2008) (to be codified at 50
    C.F.R. pt. 402).

[^46]: *Id.* at 47,871.

[^47]: *Id*. at 47,869.

[^48]: 50 CFR 402.02 (1986)

[^49]: Fed. Commc'ns Comm\'n v. RCA Commc'ns, Inc., 346 U.S. 86, 90
    (1953).

[^50]: United States Fish and Wildlife Service, Department of
    Transportation Programmatic Consultation Guidance,
    http://www.fws.gov/Endangered/consultations/DOT-guidance.html (last
    visited Sept. 18, 2008).

[^51]: Memorandum of Agreement Between the Environmental Protection
    Agency, Fish and Wildlife Service and National Marine Fisheries
    Service Regarding Enhanced Coordination Under the Clean Water Act
    and Endangered Species Act, 66 Fed. Reg. 11,202 (Feb. 22, 2001).

[^52]: *See, e.g.,* United States Army Corps of Engineers, Programmatic
    Consultation for Listed Salmon and Steelhead in Idaho,
    http://www.nww.usace.army.mil/html/offices/op/rf/SLOPES/Webprocedures.pdf
    (last visited Sept 18, 2008) (displaying an example of a
    programmatic consultation form with the Army Corps of Engineers and
    NMFS for permits in Idaho).

[^53]: *See* Kentucky Waterways Alliance v. Johnson, No. 06-5614, 2008
    WL 4057140, at \*13 (6th Cir. 2008) (noting:

    > \[The\] administrative law principle which allows an agency to
    > create unwritten exceptions to a statute or rule for insignificant
    > or 'de minimus' matters. Under this well-established principle, it
    > is 'permissible as an exercise of agency power, inherent in most
    > statutory schemes,' to create categorical exemptions 'to overlook
    > circumstances that in context may fairly be considered de
    > minimus.'

    (quoting Ala. Power Co. v. Costle, 636 F.2d 323, 360 (D.C.Cir.
    1979))).

[^54]: *See* New York v. Envtl. Prot. Ag., 443 F.3d 880, 884 (D.C. Cir.
    2006) (also citing "*Alabama Power Co. v. Costle*, which recognized
    EPA's discretion to exempt from NSR 'some emission increases on
    grounds of de minimis or administrative necessity . . . .'"(internal
    citation omitted)).

[^55]: 42 U.S.C. § 4332(C) (2006).

[^56]: 40 C.F.R. § 1508.18(b)(1) (2008).

[^57]: *See* Daniel R. Mandelker, [NEPA Law and Litigation]{.smallcaps},
    § 5:11.1 (2d. ed. 1992)("On balance, the cases holding that NEPA
    applies to the ESA are correct."); Flint Ridge Dev. Co. v. Scenic
    Rivers Ass'n of Okla., 426 U.S. 776, 787 (1976) (holding that,
    absent a clear statutory conflict, NEPA applies to all federal
    agency actions).

    > NEPA\'s instruction that all federal agencies comply with the
    > impact statement requirement and with all the other requirements
    > of s 102 "to the fullest extent possible," is neither accidental
    > nor hyperbolic. Rather, the phrase is a deliberate command that
    > the duty NEPA imposes upon the agencies to consider environmental
    > factors not be shunted aside in the bureaucratic shuffle.

    *Id.*(internal citation omitted); Calvert Cliffs\' Coordinating
    Committee v. Atomic Energy Commission, 449 F.2d 1109, 1115 (D.C.
    Cir. 1971)( \[T\]he Section 102 duties are not inherently flexible.
    They must be complied with to the fullest extent, unless there is a
    clear conflict of statutory authority."); Catron County Bd. of
    Comm\'rs, N.M. v. U.S. Fish & Wildlife Serv., 75 F.3d 1429, 1436
    (10^th^ Cir. 1996) ("In view of the focus of the ESA critical
    habitat designation, we do not believe that the NEPA inquiry has
    been duplicated, nor do we believe the statutes are mutually
    exclusive."); *but see* Douglas County v. Babbitt, 48 F.3d 1495,
    1502 (9th Cir. 1995)("\[W\]e hold that NEPA does not apply to the
    designation of a critical habitat.").

[^58]: *See* 40 C.F.R. §1501.4(b) (2008) ("If the proposed action is not
    covered by paragraph (a) of this section, prepare an environmental
    assessment.").

[^59]: Envtl. Def. Fund, Inc. v. Mathews, 410 F. Supp. 336, 338 (D.D.C.
    1976) ("This limitation of the agency\'s discretion to act in
    accordance with environmental considerations directly contravenes
    the mandate of NEPA to all Federal agencies to consider the
    environmental effects of their actions 'to the fullest extent
    possible.'").

[^60]: Citizens for Better Forestry v. U.S. Dept. of Agric., 481 F.Supp.
    2d 1059, 1085 (N.D. Calif. 2007); *see also*, California ex rel.
    Lockyer v. U.S. Dept. of Agric., 459 F.Supp. 2d 874, 910 (N.D.
    Calif. 2006) (stating that a programmatic rule requiring states to
    petition to designate roadless areas must comply with NEPA).

[^61]: *Citizens for Better Forestry*, 481 F. Supp. 2d at 1084.

[^62]: *Id.* at 1089.

[^63]: *See* Interagency Cooperation Under the Endangered Species Act,
    73 Fed. Reg. 47,868, 47,869 (proposed Aug. 15, 2008) (to be codified
    at 50 C.F.R. pt 402)

    > (We propose to amend the current regulatory definition of
    > cumulative effects to clarify that the definition of 'cumulative
    > effects' under section 7 of the Act is not the same as the use of
    > 'cumulative impacts' in the National Environmental Policy Act. The
    > current ESA regulatory definition of cumulative effects (and this
    > proposed definition) is narrower than the NEPA regulatory
    > definition of cumulative impacts. (internal citation omitted)).

[^64]: *See* *Citizens for Better Forestry*, 481 F. Supp. 2d at 1090
    ("The USDA, at a minimum, should have prepared an EA in this
    case.").

[^65]: 16 U.S.C. § 1536 (a)(1) (2006).

[^66]: *See* Sierra Club v. Glickman, 156 F.3d 606, 616 (5th Cir. 1998)

    > (Given the plain language of the statute and its legislative
    > history, we conclude that Congress intended to impose an
    > affirmative duty on each federal agency to conserve each of the
    > species listed pursuant to \[the Act\]. In order to achieve this
    > objective, the agencies must consult with \[the\] FWS as to each
    > of the listed species, not just undertake a generalized
    > consultation.).

[^67]: *See* Florida Key Deer v. Paulison, 522 F.3d 1133, 1146 (11th
    Cir. 2008) ("\[S\]ection 7(a)(1) imposes a judicially reviewable
    obligation upon all agencies to carry out programs for the
    conservation of endangered and threatened species.").

[^68]: *Cf.* Nat'l Wildlife Fed'n v. Norton, Number range CHAPTER386
    F.Supp 2d. 553, 567 (D. Vt. 2005)("It is inconsistent with the ESA
    to exempt the FWS from conservation efforts, and therefore, §
    7(a)(1) applies to defendants.").

[^69]: Executive Order 12,866: Regulatory Planning and Review, 58 Fed.
    Reg. 51, 735 (Sept. 30, 1993).

[^70]: Executive Order 12,988: Civil Justice Reform, 61 Fed. Reg. 4729
    (Feb. 5, 1996).

[^71]: Memorandum: Plain Language in Government Writing, 63 Fed. Reg.
    31,885 (June 1, 1998).

[^72]: Interagency Cooperation Under the Endangered Species Act, 73 Fed.
    Reg. 47,868, 47,869 (proposed Aug. 15, 2008) (to be codified at 50
    C.F.R. pt. 402).

[^73]: *Id.* at 47,871.

[^74]: *Id.*

[^75]: *Id.* at 47,871--72.

[^76]: *See, e.g*., Holly Doremus, *The Purposes, Effects, and Future of
    the Endangered Species Act's Best Available Science Mandate,* [34
    Envtl. L.]{.smallcaps} 397, 431--32 nn.201, 202 & 205--207 (2004)
    (citing over a dozen cases from the last 20 years in which courts
    found error with the Services' interpretations of their duties under
    the ESA).

[^77]: Interagency Cooperation Under the Endangered Species Act, 73 Fed.
    Reg. 47,868, 47,870 (proposed Aug. 15, 2008) (to be codified at 50
    C.F.R. pt. 402).

[^78]: *Id.*

[^79]: 50 C.F.R. § 402.01 (2008)(emphasis added).

[^80]: 50 C.F.R. § 402.14 (2008).

[^81]: 50 C.F.R. § 402.13 (2008).

[^82]: *See* Bensman v. U.S. Forest Serv., 984 F.Supp.1242, 1249 (W.D.
    Mo. 1997) ("The Forest Service should have entered into formal
    consultation with the Fish and Wildlife Service.").

[^83]: Interagency Cooperation Under the Endangered Species Act, 73 Fed.
    Reg. at 47,870--71.

[^84]: Wash. Toxics Coal. v. U.S. Dept. of Interior, 457 F. Supp.2d
    1158, 1179--80 (W.D. Wash. 2006).

[^85]: *Id.* at 1182.

[^86]: *Id.* at 1184 (final emphasis added).

[^87]: Wash. Toxics Coal. v. Envtl. Prot. Ag., 413 F.3d 1024, 1032 (9th
    Cir. 2005).

[^88]: [Fish and Wildlife Service, Final ESA Section 7 Consultation
    Handbook]{.smallcaps}, (March 1998), *available at*
    http://www.fws.gov/endangered/consultations/s7hndbk/s7hndbk.htm.

[^89]: 50 C.F.R. § 402.30--34 (2008).

[^90]: 50 C.F.R. § 402.32 (a) (2008).

[^91]: *See* National Marine Fisheries Service, U.S. Fish and Wildlife
    Service, Forest Service and Bureau of Land Management, Use of the
    ESA Section 7 Counterpart Regulations for Projects that Support the
    National Fire Plan 22 (Jan. 11, 2008),
    http://www.nmfs.noaa.gov/pr/pdfs/laws/fireplanreview.pdf.
    (concluding that:

    > Based on the results of the FWS' and NMFS' evaluations, although
    > 18 of the 52 \[project documents\] evaluated met all the
    > evaluation criteria, more than half fell short in one or more
    > areas indicating that the FS and BLM need to improve the quality
    > of documentation supporting decisions made pursuant to the ESA
    > counterpart regulations to ensure they meet the requirements of
    > the \[criteria\] and are sufficient to fully support the decisions
    > reached, as stand-alone documents*.*).

[^92]: In *Defenders of Wildlife v. Kempthorne*, No. 04-1230 (GK), 2006
    WL 2844232 at \*19 (D. D.C. 2006), a case challenging the
    counterpart regulations for the National Fire Plan, the district
    court ruled that the ESA does not absolutely foreclose the use of
    Alternative Consultation Agreements (ACA) but emphasized that the
    Services must retain their oversight responsibilities under any such
    arrangement:

    > Given the involvement of the Services in the creation of an ACA
    > and the oversight they retain over Action Agencies working
    > pursuant to one, as well as their power to suspend or terminate a
    > poorly-administered ACA, the Services retain an important and
    > ongoing role in evaluating the environmental consequences of
    > National Fire Plan projects.

    *Id*. at \*19.

[^93]: Joint Counterpart Endangered Species Act Section 7 Consultation
    Regulations, 69 Fed. Reg. 47,732 (Aug. 5, 2004) (codified at 50
    C.F.R. pt. 402).

[^94]: *See* Babbitt v. Sweet Home Cmtys. for a Great Oregon, Number
    range CHAPTER515 U.S. 687, 708 (1995) ("The proper interpretation of
    a term such as "harm" involves a complex policy choice.").

[^95]: Interagency Cooperation Under the Endangered Species Act, 73 Fed.
    Reg. 47,868, 47,871 (proposed Aug. 15, 2008) (to be codified at 50
    C.F.R. pt. 402).

[^96]: *Id.* at 47,870.

[^97]: *Id.*

[^98]: *Id.*

[^99]: *Id.*

[^100]: *Id.* at 47,871.

[^101]: *Id.* at 47,874.

[^102]: 16 U.S.C. § 1536(a)(2) (2006)(emphasis added). Courts have ruled
    that the threshold for informal consultation is low. *See* Pacific
    Rivers Council v. Thomas*,* 30 F.3d 1050, 1054 n. 8 (9th Cir.1994)
    (noting that, at a minimum, informal consultation is required
    whenever an agency action "may affect" listed species).

[^103]: Interagency Cooperation Under the Endangered Species Act, 73
    Fed. Reg. at 47,870.

[^104]: Nat'l Wildlife Fed'n v. Coleman, 529 F.2d 359, 373 (5th Cir.
    1976), cert. denied, Boeteler v. Nat'l Wildlife Fed'n, 429 U.S. 979
    (1976).

[^105]: *Id.* at 373 (emphasis added).

[^106]: *Id.* at 374.

[^107]: Riverside Irrigation Dist. v. Andrews, 758 F.2d 508, 512 (10th
    Cir. 1985).

[^108]: Interagency Cooperation Under the Endangered Species Act, 73
    Fed. Reg. at 47,869.

[^109]: 16 U.S.C. § 1536(a)(2) (2006) (emphasis added).

[^110]: Defenders of Wildlife v. Babbitt, 958 F.Supp. 670, 679 (D.D.C.
    1997).

[^111]: *Id.* at 679--80.

[^112]: Connor v. Burford, 848 F.2d 1441, 1454 (9th Cir. 1988) (quoting
    H.R. Rep. No. 96-697 at 12 (1979)); *accord* Roosevelt Campobello
    Int'l Park Comm\'n v. U.S. Envtl. Prot. Ag. 684 F.2d 1041, 1048--49
    (1st Cir. 1982).

[^113]: Mass. v. Envtl. Prot. Ag., 127 S.Ct. 1438, 1456 (2007).

[^114]: *Id*. at 1460--61.

[^115]: *Id.* at 1462--63.

[^116]: [United States Government Accountability Office, ENDANGERED
    SPECIES: More Federal]{.smallcaps}

    [Management Attention Is Needed to Improve the Consultation Process
    (]{.smallcaps}Report to Congressional requesters) 14 (2004)
    *available at* http://www.gao.gov/new.items/d0493.pdf.

[^117]: *Id*.

[^118]: *Id.*

[^119]: Interagency Cooperation Under the Endangered Species Act, 73
    Fed. Reg. 47,868, 47,872 (proposed Aug. 15, 2008) (to be codified at
    50 C.F.R. pt. 402).

[^120]: *Id*. at 47,870.

[^121]: *Id.*

[^122]: *See* [Climate Change 2007: The Physical Science Basis
    237]{.smallcaps} (Susan Solomon et al. eds., 2007), *available at*
    http://www.ipcc.ch/ipccreports/ar4-wg1.htm ("The rate of warming
    over the last 50 years is almost double that over the last 100 years
    . . . ."); Chris D. Thomas et al., *Extinction Risk from Climate
    Change*, 427 [Nature]{.smallcaps} 145, 145 (2004) ("\[W\]e predict,
    on the basis of mid-range climate-warming scenarios for 2050, that
    15--37% of species in our sample of regions and taxa will be
    'committed to extinction.'").

[^123]: Ethyl Corp. v. Envtl. Prot. Ag., 541 F.2d 1, 28 (D.C. Cir.
    1976). The court further observed: "The Administrator may apply his
    expertise to draw conclusions from suspected, but not completely
    substantiated, relationships between facts, from trends among facts,
    from theoretical projections from imperfect data, from probative
    preliminary data not yet certifiable as 'fact,' and the like." *Id.*

[^124]: Geoffrey Lean, *For the First Time in Human History, the North
    Pole Can Be Circumnavigated*, [The Independent]{.smallcaps}, Aug. 31
    2008,
    http://www.independent.co.uk/environment/climate-change/for-the-first-time-in-human-history-the-north-pole-can-be-circumnavigated-913924.html.

[^125]: *Id.*

[^126]: *Id.*

[^127]: *Id.*

[^128]: *Id.*

[^129]: *Id.*

[^130]: Bill Scanlon, *North Pole to Remain Frozen*, [Rocky Mountain
    News]{.smallcaps}, Aug. 29, 2008,
    http://m.rockymountainnews.com/news/2008/aug/29/north-pole-remain-frozen/.

[^131]: *See* [Climate Change 2007: The Physical Science Basis
    23]{.smallcaps} (Susan Solomon et al. eds., 2007), *available at*
    http://www.ipcc.ch/ipccreports/ar4-wg1.htm (defining "very likely"
    as a greater than 90% probability).

[^132]: *See id.* at 62 ("The observed pattern of tropospheric warming
    and stratospheric cooling is very likely due to the influence of
    anthropogenic forcing, particularly that due to greenhouse gas
    increases and stratospheric ozone depletion.").

[^133]: *See id.* at 25 ("Increases in atmospheric CO2 since
    pre-industrial times are responsible for a radiative forcing of
    +1.66 ± 0.17 W m--2; a contribution which dominates all other
    radiative forcing agents considered in this report.").

[^134]: Bill McKibben, *Welcome to the Climate Crisis*, [Washington
    Post]{.smallcaps}, May 27, 2006, at A25.

[^135]: Mass. v. Envtl. Prot. Ag., 127 S.Ct. 1438, 1460 (2007).

[^136]: *Id.*

[^137]: *Id.* at 1462.

    > Under the clear terms of the Clean Air Act, EPA can avoid taking
    > further action only if it determines that greenhouse gases do not
    > contribute to climate change or if it provides some reasonable
    > explanation as to why it cannot or will not exercise its
    > discretion to determine whether they do.

    *Id.*

[^138]: *Id.* at 1460--63.

[^139]: *Id.* at 1457--58.

[^140]: Environmental and Energy Study Institute, Climate Change Fact
    Sheet, Based on Aug 14, 2006 testimony of Dr. James E. Hansen (Nov.
    2006),
    http://www.eesi.org/publications/Fact%20Sheets/EC_Fact_Sheets/hansen_climate_testimony_06.pdf.

[^141]: *See, e.g.*, [K.L. Ebi , et al., U.S. Climate Change Science
    Program and the Subcommittee on Global Change Research, U.S.
    Environmental Protection Agency, Analyses of the effects of global
    change on human health and welfare and human systems]{.smallcaps}
    ES-3 (J.L. Gamble ed., 2008), *available at*
    http://www.climatescience.gov/Library/sap/sap4-6/final-report/sap4-6-final-all.pdf.

    > (In the future, with continued global warming, heat waves and
    > heavy downpours are very likely to further increase in frequency
    > and intensity. Cold days and cold nights are very likely to become
    > much less frequent over North America. Substantial areas of North
    > America are likely to have more frequent droughts of greater
    > severity. Hurricane wind speeds, rainfall intensity, and storm
    > surge levels are likely to increase. Other changes include
    > measurable sea-level rise and increases in the occurrence of
    > coastal and riverine flooding.).

[^142]: *See* James E. Hansen, NASA Goddard Institute for Space Studies
    and Columbia University Earth Institute, Is There Still Time to
    Avoid 'Dangerous Anthropogenic Interference' with Global Climate 1
    (Dec. 6, 2005),
    http://www.columbia.edu/\~jeh1/2005/Keeling_20051206.pdf ("Action
    must be prompt, otherwise CO2-producing infrastructure that may be
    built within a decade will make it impractical to keep further
    global warming under 1°C.").

[^143]: *Id.*