M-37017

United States Department ofthe Interior

OFFICE OF THE SOUCITOR

OCT 032008

Memorandum

To

From:

Subject:

Secretary

Solicitor

Guidance on the Applicability ofthe Endangered Species Act's

Consultation Requirements to Proposed Actions Involving the Emission of

Greenhouse Gases

On May 14, 2008, the U.S. Geological Survey (USGS) issued a memorandum entitled

"The Challenges ofLinking Carbon Emissions, Atmospheric Greenhouse Gas [GHG]

Concentrations, Global Warming, and Consequential Impacts." Based on a review of

''the best scientific and commercial data available," which is a requirement ofthe

Endangered Species Act (ESA),l the memorandum reached the following conclusion:

It is currently beyond the scope of existing science to identify a specific source of

C02 emissions and designate it as the cause ofspecific climate impacts at an exact

location.

In response, the U.S. Fish and Wildlife Service (FWS or Service) issued guidance laying

out an analytical framework within which the Service would be able to assist Federal

action agencies (including the Service itselfwhen intra-Service consultation is

appropriate) in achieving procedural and substantive compliance with the Act. In that

memorandum, the FWS Director stated:

GHG that are projected to be emitted from a facility would not, in and of

themselves, trigger section 7 consultation for a particular action unless it is

established that the emissions from the proposed action cause an indirect effect to

listed species or critical habitat. To constitute an indirect effect, the impact to the

species must be later in time, must be caused by the proposed action, and must be

reasonably certain to occur.2

I Endangered Species Act of 1973 § 7(a)(2), 16 U.S.C. § 1536(a)(2).

2 Memorandum from H. D. Hall, Director, U.S. Fish and Wildlife Service, on "Expectations for

Consultations on Actions that Would Emit Greenhouse Gases" to Regional Directors. May 14, 2008.

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Based on the above statement by USGS, I concur with the guidance provided by the FWS

and conclude, for the reasons explained below, that where the effects at issue result from

climate change potentially induced by GHGs, a proposed action that will involve the

emission ofGHG cannot pass the "may affect" test, and is not subject to consultation

under the ESA and its implementing regulations.3

I. The "May Affect" Test

Section 7(a)(2) ofthe ESA requires Federal agencies to ensure, in consultation with either

the Secretary ofthe Interior or the Secretary ofCommerce and based on ''the best

scientific and commercial data available," that their proposed actions will not be "likely

to jeopardize the continued existence of any [listed] species or result in the destruction or

adverse modification ofthe critical habitat ofsuch species." However, not all proposed

actions ofFederal agencies are subject to the consultation requirement. The section 7

regulations state that consultation is required only when a Federal agency determines that

its proposed action "may affect listed species or critical habitat." 50 C.F.R. § 402.l4(a).

The regulations do not establish any criteria for determining when the ''may affect" test is

satisfied. The Final ESA Section 7 Handbook describes "may affect" as:

The appropriate conclusion when a proposed action may pose any effects on listed

species or designated critical habitat.4

Based in part on this guidance, it is generally understood that a proposed action passes

the "may affect" test when an agency determines there is some likelihood the proposed

action will have an effect on listed species or designated critical habitat. Effects of a

proPQsed action on listed species or critical habitat that are "beneficial, discountable or

insignificant," are still considered to be effects ofthe action. Final ESA Section 7

Handbook, page xv.

In determining whether a proposed action "may affect" a listed species, or, conversely,

whether there will be "no effect," a Federal agency must go through a multi-step process.

First, the agency must determine what activities are encompassed by its proposed action.

Second, it must determine, in at least a preliminary way, what the effects ofthose

activities are likely to be on the environment. Third, the agency must determine whether

those effects will "pose any effects" on a listed species or critical habitat-i.e., whether

there are listed species or critical habitat within the reach ofthose effects.

3 The proposed action may, of course, involve activities other than the emission ofGHG that could have

effects that would trigger the consultation requirements. Such other effects are not the focus ofthis

memorandum.

4 Endangered Species Consultation Handbook, Glossary ofTerms used in Section 7 Consultation, at xvi,

issued by U.S. Fish and Wildlife Service and the National Marine Fisheries Service, March 1998. (Final

ESA Section 7 Handbook).

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A. Activities Encompassed by the Proposed Action

In detennining what activities are encompassed by a proposed action, agencies are

subject to the definition of"action" found in the regulations. The regulations define an

"action" as "all activities or programs of any kind ... carried out, in whole or in part, by

Federal agencies," and "all activities or programs ofany kind authorized [or] funded ...

in whole or in part by Federal agencies." 50 C.F.R. § 402.02. Activities "authorized or

funded" by Federal agencies will typically be carried out by persons or organizations

other than the agency itself.

B. "Effects ofthe Action"

In detennining what the effects of a proposed action are likely to be, agencies are subject

to the definition of"effects ofthe action" found in the regulations. Our regulations

define "effects ofthe action" as follows:

Effects ofthe actions refers to the direct and indirect effects of an action on the

species or critical habitat, together with the effects ofother activities that are

interrelated or interdependent with that action, that will be added to the

environmental baseline. The environmental baseline includes the past and present

impacts of all Federal, State, or private actions and other human activities in the

action area, the anticipated impacts of all proposed Federal projects in the action

area that have already undergone fonnal or early section 7 consultation, and the

impact ofState or private actions which are contemporaneous with the

consultation in process. Indirect effects are those that are caused by the proposed

action and are later in time, but still are reasonably certain to occur. Interrelated

actions are those that are part of a larger action and depend on the larger action for

theirjustification. Interdependent actions are those that have no independent

utility apart from the action under consideration. 50 C.F.R. § 402.02

There are thus two types ofeffects that need to be identified and evaluated to detennine if

a proposed action will "pose any effects" to a listed species or critical habitat: direct and

indirect.s

1. "Direct Effects"

While "direct effects" are not defined in the regulations, they are commonly understood

to be the immediate effects on a listed species or critical habitat that will result from the

carrying out by the Federal agency ofthe proposed action itselfor from the carrying out

by third parties ofthe activities authorized or funded by the Federal agency. In other

words, ifthe agency does what it is proposing to do, the "direct effects" are the effects

that are the immediate and natural consequences ofthe taking ofthe proposed action.

The Final ESA Section 7 Handbook states:

S This analysis would include the evaluation ofdirect and·indirect effects ofinterrelated and interdependent

actions.

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Direct effect: the direct or immediate effects ofthe project on the species or its

habitat, e.g., driving an offroad vehicle through the nesting habitat ofpiping

plover may destroy its ground nest; building a housing unit may destroy the

habitat of an endangered mouse. Final ESA Section 7 Handbook at 4-25.

2. "Indirect Effects"

"Indirect effects" are defined in the regulations as ''those that are caused by the proposed

action and are later in time, but still are reasonably certain to occur." 50 C.F.R. § 402.02.

Indirect effects may involve the subsequent actions ofothers parties, but must ultimately

be caused by the proposed agency action. Like "direct effects," they must be "caused by"

the proposed action, but because they are effects that are "later in time," they are not

necessarily inevitable. Thus, before concluding that an anticipated effect is an "indirect

effect," the agency must determine not just whether it is "caused by" the proposed action,

but also whether it is "reasonably certain to occur."

C. "Action Area"

Once the direct and indirect effects from the proposed action have been determined, the

agency must next determine whether a listed species or its critical habitat may be affected

by those effects. To do that, the agency must determine the "action area" ofits proposed

action. Any listed species or critical habitat not present in the "action area" will, by

definition, not be affected by the proposed action. See, e.g., 50 C.F.R. § 402.12(c) and

(d).

"Action area" is defined in the regulations as all "areas to be affected directly or

indirectly by the Federal action and not merely the immediate area involved in the

action." 50 C.F.R. § 402.02.

D. "Cumulative Effects"

It is important to note that "cumulative effects," as defined in the regulations, are not

considered at the ''may affect" stage as they are not "effects ofthe action" because they

are not "caused by" the proposed action. "Cumulative effects are those effects offuture

State or private activities, not involving any Federal activities, that are reasonably certain

to occur within the action area ofthe Federal action." 50 C.F.R. § 402.02 [emphasis

added]. In other words, they are effects that would be "reasonably certain to occur" even

ifthe proposed action was not taken.

Under the regulations, "cumulative effects" are taken into account at the formal

consultation stage, which, in turn, is triggered as a result ofan agency's threshold

determination that the direct and/or indirect effects ofits proposed action may have an

effect on listed species or critical habitat. 50 C.F.R. § 402.14(c) and (g)(4). Thus, ifthe

direct and/or indirect effects of a proposed action will themselves have no effects on a

listed species or critical habitat, the effects of other unrelated actions in the action areaPage 4
i.e., the cumulative effects-are ofno relevance in detennining whether a proposed

action "may affect listed species or critical habitat."

II. The "May Affect" Test and GHG Emissions

As the primary administrator ofthe Clean Air Act, the Environmental Protection Agency

(EPA) has developed considerable expertise in current global climate change research

and has substantial expertise in using the available models to analyze the fate ofGHG

emissions. Before applying the legal framework discussed above to a proposed action

that will involve the emission ofGHGs, we note as background the following statement

that was recently made by the EPA:

To date, research on how emissions ofCO2 and other GHGs influence global

climate change and associated effects has focused on the overall impact of

emissions from aggregate regional or global sources. This is primarily because

GHG emissions from single sources are small relative to aggregate emissions, and

GHGs, once emitted from a given source, become well mixed in the global

atmosphere and have a long atmospheric lifetime. The climate change research

community has not yet developed tools specifically intended for evaluating or

quantifying end-point impacts attributable to the emissions ofGHGs from a single

source, and we are not aware of any scientific literature to draw from regarding

the climate effects ofindividual, facility-level GHG emissions.6

A. Direct effects

For climate change to be considered a "direct effect" ofa proposed action involving the

emission ofGHGs, it would have to be an immediate effect that will result from that

emission. As noted above, at the "may affect" stage, the direct effects ofthe proposed

action are considered and define the action area along with the indirect effects. While the

emission ofGHGs from a single source may ultimately constitute an extremely small

constituent ofthe aggregate global concentration ofGHGs, such an emission by itself

does not have a direct or immediate climate change effect. That being the case, it is

proper to conclude, for purposes ofthe "may affect" test, that there will be no "direct

effect" in the form of climate change from such emissions.

B. Indirect effects

For climate change to be considered an "indirect effect" on a member of a listed species

or its habitat from a proposed action, the observed effect would have to be "caused by"

the proposed action, occur later in time than the "direct effects" ofthe proposed action,

6 Letter from Robert J. Meyers, Principal Deputy Assistant Administrator, Office ofAir and Radiation,

EPA, to H. Dale Hall, Director, U.S. Fish and Wildlife Service, and James Lecky, Director ofProtected

Resources, National Marine Fisheries Service, on "Endangered Species Act and GHG Emitting Activities"

(October 3, 2008) (Meyers Letter).

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and be "reasonably certain to occur."? When these three tests are met, an agency

considers the indirect effects ofthe proposed action and uses those effects, along with the

direct effects, to define the action area. As with "direct effects," however, "indirect

effects" are considered in detennining if an agency action "may affect a listed species or

critical habitat" while "cumulative effects," that are not a part ofthe agency action are

evaluated in the subsequent formal consultation, once the ''may effect" determination has

been made. Again, the "cumulative effects" are effects from independent actions that are

''reasonably certain to occur" within the action area defined by the direct and indirect

effects.

The statement from the Director ofthe USGS quoted at the outset ofthis memorandum

indicates that the requisite causal connections cannot be made between the emissions of

GHGs from a proposed agency action and specific localized climate change as it impacts

listed species or critical habitat. Given the nature ofthe complex and independent

processes active in the atmosphere and the ocean acting on GHGs, the causal link simply

cannot currently be made between emissions from a proposed action and specific effects

on a listed species or its critical habitat. Specifically, science cannot say that a tiny

incremental global temperature rise that might be produced by an action under

consideration would manifest itselfin the location of a listed species or its habitat.

Similarly, any observed climate change effect on a member of a particular listed species

or its critical habitat cannot be attributed to the emissions from any particular source.

Rather it would be the consequence ofthe collective greenhouse gas accumulation from

natural sources and the world-wide anthropogenically produced GHG emissions since at

least the beginning ofthe industrial revolution.

Moreover, even if a theoretical link between emissions and effects is hypothesized, a

question arises as to the magnitude ofthe effect that might occur from that emission at

the location ofthe listed species. The EPA has recently modeled global climate change

impacts from a model source emitting 20% more GHGs than a 1500 MW coal-fired

steam electric generating plant. It estimated a hypothetical maximum mean global

temperature value increase resulting from such a project. The results ranged from

0.00022 and 0.00035 degrees Celsius occurring approximately 50 years after the facility

begins operation. These values provide a way ofunderstanding the scale ofthe issues

involved. Not only are these modeled changes extremely small, the downsizing ofthese

results to interpolate local applications would be a novel and untested application ofthe

model, with even greater uncertainly in the predicted outcomes. The EPA concluded that

7 The regulatory requirement of a causal connection between the proposed agency action and the .ultimate

effect on a listed species has been upheld consistently by the courts. The Ninth Circuit recognized the need

for a causal connection between the proposed agency action and a specific impact to a specific species or

critical habitat when it held that an "Agency action can only 'jeopardize' a species' existence ifthat agency

action causes some deterioration in the species' pre-action condition." Nat'l Wildlife Fedn v. Nat'l Marine

Fisheries Serv., 524 F.3d 917, 930 (9th Cir. 2008). In an earlier decision, the Ninth Circuit concluded that

the Service could not speculate about effects or the causal connection between the agency action and those

"effects." Arizona Cattle Growers' Association v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir.

2001).

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even assuming such an increase in temperature could be downscaled to a particular

location, it ''would be too small to physically measure or detect.,,8

Ill. Conclusion

Based on the USGS statement, and its continued scientific validity, we conclude that

where the effect at issue is climate change in the form ofincreased temperatures, a

proposed action that will involve the emission ofGHG cannot pass the ''may affect" test

and is not subject to consultation under the ESA and its niplementing regulations.9

David Longly Bernhardt

I concur: ~_...~~~-~w~.,. ~~. __________ -Dij. k Kempthorne _____

retary of the Interior

I "

8Meyers Letter at 8.

9 Correspondence from USGS Director to Solicitor, October 3, 2008.

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