### 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 ConsultationRequirements 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 ''thebest scientific and commercial data available," which is a requirement ofthe Endangered Species Act (ESA), l the memorandum reached the following conclusion: It is currentlybeyond the scope ofexisting 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 wouldbe 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, mustbe causedby the proposed action, and mustbe 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. Page 1Based on the above statementby USGS, I concurwith the guidance providedby the FWS and conclude, for the reasons explained below, that where the effects at issue result from climate changepotentially induced by GHGs, a proposed action that will involve the emission ofGHG cannotpass the "may affect" test, and is not subject to consultation underthe ESA and its implementingregulations.3 I. The "May Affect" Test Section 7(a)(2) ofthe ESA requires Federal agencies to ensure, in consultation with either the Secretary ofthe Interiororthe Secretary ofCommerce andbased on ''the best scientific and commercial data available," that theirproposed actions will notbe "likely tojeopardize the continued existence ofany [listed] species orresult in the destruction or adverse modification ofthe critical habitat ofsuch species." However, not all proposed actions ofFederal agencies are subject to the consultationrequirement. The section 7 regulations state that consultation is required onlywhen a Federal agency determines that its proposed action "may affect listed species orcritical habitat." 50 C.F.R. § 402.l4(a). The regulations do not establish anycriteria for determining when the ''may affect" test is satisfied. The Final ESA Section 7 Handbook describes "may affect" as: The appropriate conclusion when aproposed action maypose any effects on listed species or designated critical habitat.4 Based inpart on this guidance, it is generally understood that aproposed action passes the "may affect" test when an agency determines there is some likelihood the proposed action will have an effect on listed species ordesignated critical habitat. Effects ofa proPQsed action on listed species orcritical habitatthat 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, whetherthere will be "no effect," a Federal agency must go through a multi-step process. First, the agencymust determine what activities are encompassedby 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 agencymust 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, ofcourse, involve activities other than the emission ofGHG that couldhave effects that would triggerthe consultationrequirements. Such other effects are not the focus ofthis memorandum.

4 EndangeredSpecies Consultation Handbook, Glossary ofTerms used in Section 7 Consultation, atxvi, issued by U.S. Fish and Wildlife Service and the National Marine Fisheries Service, March 1998. (Final ESA Section 7 Handbook). Page 2A. Activities Encompassed by the Proposed Action In detennining what activities are encompassedby aproposed action, agencies are subjectto the definition of"action" found in the regulations. The regulations define an "action" as "all activities orprograms ofanykind

... carried out, in whole orin part, by Federal agencies," and "all activities orprograms ofany kind authorized [or] funded

... in whole or in partby Federal agencies." 50 C.F.R. 

### § 402.02. Activities "authorized or funded" by Federal agencies will typicallybe carried outbypersons or organizations otherthan the agency itself. B. "Effects ofthe Action" In detennining what the effects ofaproposed action are likely to be, agencies are subject to the definition of"effects ofthe action" found in the regulations. Ourregulations define "effects ofthe action" as follows: Effects ofthe actions refers to the direct and indirect effects ofan action on the species orcritical habitat, togetherwith the effects ofother activities that are interrelated or interdependentwith that action, that will be added to the environmental baseline. The environmental baseline includes the past andpresent impacts ofall Federal, State, orprivate actions and otherhuman activities in the action area, the anticipated impacts ofall proposed Federal projects in the action area that have already undergone fonnal or early section 7 consultation, and the impact ofState orprivate 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 ofa larger action and depend on the larger action for theirjustification. Interdependent actions are those that have no independent utility apart from the action underconsideration. 50 C.F.R. § 402.02 There are thus two types ofeffects thatneed 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 orcritical habitat that will result from the carrying out bythe Federal agency ofthe proposed action itselfor from the carrying out bythirdparties 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. Page 3Direct 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 unitmay destroy the habitat ofan endangered mouse. Final ESA Section 7 Handbook at 4-25. 2. "Indirect Effects" "Indirect effects" are defined in the regulations as ''those that are causedby the proposed action and are laterin time, but still are reasonably certainto occur." 50 C.F.R. 

### § 402.02. Indirect effects may involve the subsequent actions ofothers parties, but must ultimately be causedby the proposed agency action. Like "direct effects," they must be "causedby" the proposed action, butbecause they are effects that are "laterin time," they are not necessarily inevitable. Thus, before concluding that an anticipated effect is an "indirect effect," the agency must determine notjustwhether it is "causedby" 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 havebeen determined, the agency must next determine whether a listed species orits critical habitat maybe affected by those effects. To do that, the agency must determine the "action area" ofits proposed action. Any listed species or critical habitatnot present in the "action area" will, by definition, not be affectedby 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 indirectlybythe Federal action and notmerelythe 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 "causedby" the proposed action. "Cumulative effects are those effects offuture State orprivate activities, not involving anyFederal activities, that are reasonably certain to occurwithin the action area ofthe Federal action." 50 C.F.R. 

### § 402.02 [emphasis added]. In otherwords, they are effects that would be "reasonably certain to occur" even ifthe proposed action was not taken. Underthe 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/orindirect 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 ofaproposed action will themselves have no effects on a listed species orcritical habitat, the effects ofotherunrelated actions in the action 

### areaPage 4i.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 administratorofthe Clean AirAct, 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 primarilybecause 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 attributableto the emissions ofGHGs from a single source, and we are not aware ofany 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. Thatbeing the case, it is proper to conclude, forpurposes ofthe "may affect" test, thatthere will be no "direct effect" in the form ofclimate change from such emissions. B. Indirect effects For climate change to be considered an "indirect effect" on a member ofa listed species or its habitat from a proposed action, the observed effect would have to be "caused by" the proposed action, occur laterin time than the "direct effects" ofthe proposed action,

6 Letter fromRobertJ. Meyers, Principal Deputy AssistantAdministrator, 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). PageSand 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 ifan 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 definedbythe direct and indirect effects. The statement from the Directorofthe USGS quoted at the outsetofthis memorandum indicates that the requisite causal connections cannotbe 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 currentlybe 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 mightbe produced by an action under consideration would manifest itselfin the location ofa listed species or its habitat. Similarly, any observed climate change effect on a member ofa particularlisted species or its critical habitat cannotbe attributed to the emissions from anyparticular source. Rather it would be the consequence ofthe collective greenhouse gas accumulation from natural sources and the world-wide anthropogenicallyproduced GHG emissions since at least the beginning ofthe industrial revolution. Moreover, even ifa 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 recentlymodeled 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 afterthe 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 ofa causal connectionbetween the proposed agency action and the.ultimate effect on a listed species has beenupheld consistentlyby the courts. The Ninth Circuitrecognized the need for a causal connectionbetween the proposed agency action and a specific impactto 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 inthe species' pre-action condition." Nat'l Wildlife Fedn v. Nat'lMarine 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 connectionbetweenthe agency action and those "effects." Arizona Cattle Growers'Association v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir. 2001). Page 6even assuming such an increase in temperature couldbe downscaled to aparticular location, it ''wouldbe too small to physicallymeasure 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 cannotpass the ''may affect" test and is not subject to consultation underthe ESA and its niplementing regulations.9

David Longly Bernhardt

I concur:

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# __________

-Dij. k Kempthorne

_____ retary of the Interior

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8Meyers Letter at 8.

9 Correspondence fromUSGS Directorto Solicitor, October 3, 2008. Page?