United States Department of the Interior 

FISH AND WILDLIFE SERVICE 

Washington, D.C. 20240 

In Reply Refer To: 

F WS/AES/DCHRS/036 143 

MAY 14 2008 

Memorandum 

To: Regional Directors, Regions 1-8 

From: Director 

Subject: Expectations for Consultations on Actions that Would Emit Greenhouse Gases 

Recently. questions have been raised regarding compliance with section 7 of the Endangered 

Species Act concerning emissions of greenhouse gases (GHG), how these emissions contribute to 

globalclimatechange, and any effects they may cause to listed species and designated critical 

habitats These questions became evident as we analyzed the climate change information 

relevant t o thepolar hear listing determination. Based on our review of the information and 

issues considered during the analysis of the polar bear's status, I am writing to establish an 

analyticalframework within which the Service will be able to assist Federal action agencies 

(including the Service itself when intra-Service consultation is appropriate) in achieving 

procedural and substantive compliance with the Act. 

We recognize the primacy of a Federal action agency's role in determining how to conformits 

proposed actions to the requirements of section 7 and its responsibility to make the initial 

determination as to whether consultation is required on its action. As part of its ESA 

responsibilities, an action agency must examine the effects of its action in order to determine if 

consultation is necessary. Based on the attached memorandum to me from the Director of the 

U.S. Geological Survey, however, the Service does not anticipate that the mere fact that a Federal 

agency authorizes a projectthat is likely to emit GHG will require the initiation of section 7 

consultation. Consultationis required for proposed Federal actions that may affect a listed 

species. The determination of whether consultation is triggered requires an examination of 

whether the direct and indirect effects of a particular action reach the regulatory threshold of 

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

themselves trigger section 7 consultation for a pa ticular action unless it is established that the 

emissions from the proposed action cause an indirect effect to listed species or critical habitat. 

T o constitute an indirect effect, the impact to the species must be later in time, must be caused b y

the proposed action, and must be reasonably certain to occur. The best scientific data available 

today do not allow us us to draw a causal connection between GHG emissions from a given facility 
2 

and effects posed to listed species or their habitats, nor are there sufficient data to establish that 

such impacts are reasonably certain to occur. Without sufficient data to establish the required 

causal connection-to the level of reasonable certainty-between a new facility's GHG 

emissions and impacts to listed species or critical habitat, section 7 consultation would not be 

required to address impacts of a facility's GHG emissions. 

A question has also been raised regarding the possible application of section 7 to effects that may 

arise from oil and gas development activities conducted within the habitat of listed species. It is 

clear that any direct effects of oil and gas development operations, such as drilling activities, 

vehicular traffic to and from drill sites, and other on-site operational support activities that pose 

adverse effects to listed species and their critical habitat would need to be evaluated through the 

section 7 consultation process. It is also clear that any indirect effects from oil and gas 

development activities, such as impacts from the spread of contaminants (accidental oil spills, or 

the unintentional release of other contaminants) that are caused by the oil and gas development 

activities under consultation and that are reasonably certain to occur, (e.g., that are outside of the 

footprint of the action and spread into habitat areas used by listed species) would also need to be 

evaluated through the section 7 consultation process. 

However, the future effects of any emissions that may result from the consumption of petroleum 

products refined from crude oil pumped from a particular drilling site would not constitute 

indirect effects and therefore would not be considered during section 7 consultations. The best 

scientific data available to the Service today do not provide the degree of precision needed to 

draw a causal connection between the oil produced at a particular drilling site, the GHG 

emissions that rnay eventually result from the consumption of the refined petroleum product, and 

a particular impact to listed species or their habitats. At present there is a lack of scientific or 

technical knowledge to determine a relationship between oil and gas leasing, development, or 

production activity and the effects of the ultimate consumption of petroleum products (GHG 

emissions). There are discernible limits to the establishment of a causal connection, such as 

uncertainties regarding the amount of production from a field; whether any or all of that 

production will be refined for plastics or other products that will not be burned; what mix of 

vehicles or factories might use the product; and what mitigation measures might offset 

consumption. Furthermore, there is no traceable nexus between the ultimate consumption of the 

petroleum product and any particular effect to listed species or their habitats. In short, the 

emissions effects resulting from the consumption of petroleum derived from an oil field would 

not constitute an indirect effect of any Federal agency action to approve the development of that 

field. 

As we move into and adapt to this new field of consultations, we must recognize the needs of our 

fellow agencies for assistance and consultation in the broadest sense. While the foregoing 

discussion describes our expectations with regard to certain types of Federal actions, you need to 

be prepared to respond to any Federal agency that believes it may have a compliance duty under 

section 7 for its programs or actions affecting the production of GHGs. As new information and 

knowledge about emissions and specific impacts to species and their habitats is developed, we 

will adapt our framework for consultations accordingly. This is particularly important as more 
regionally-based models are developed and refined to the level of specificity and 

reliability needed for the Service to execute its implementation of the Act's provisions 

ensuring consistency with the statute's best available information standard. Regional 

Directors are expected to brief the Director as these new models and sources of 

information ripen at the appropriate scale prior to incorporation into implementing the 

Act. 

Any questions regarding this consultation should be directed to Bryan Arroyo, Assistant 

Director, Endangered Species, at (202) 208-4646.