# United States Departmentofthe Interior

FISH AND WILDLIFE SERVICE Washington, D.C. 20240



### In Reply Refer To: FWS/AES/DCHRS/036 143 

### MAY 

## 14 2008

Memorandum

To: Regional Directors,Regions 1

-8

From: Director

Subject: Expectationsfor Consultations on Actions that Would Emit Greenhouse Gases

Recently. questionshave been raised regarding compliance with section 7 of the Endangered Species Act 

### concerning emissions ofgreenhouse gases (GHG), how these emissions contributeto global 

### climate change, and any effects they may cause to listed species and designated critical habitats These questions became evident as we analyzedthe climate change information relevant t o the

### polar hear listing determination. Based on our review of the information and 

### issues considered duringthe 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 itselfwhen 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 actionsto the requirementsof section

### 7 and its responsibility to make the initial determinationas 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 onthe attached memorandum to me from the Director of the 

### U.S. Geological Survey, however, the Servicedoes not anticipate that the mere fact that a Federal agency authorizes

### a projectthat is likely to emit GHG will requirethe initiation of section 7 consultation. Consultationis requiredfor proposed Federal actionsthat may affect a listed species. The determinationof 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 orcritical habitat. 

### T o constitutean 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



### r2 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

-tothe 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 ofthe 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 ofpetroleum 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 Serviceto executeits implementationofthe Act's provisions ensuringconsistency with the statute's best availableinformation standard. Regional Directorsare expected to briefthe Directoras thesenew models and sources of information ripen at the appropriate scaleprior to incorporationinto implementing the Act.

Any questionsregarding thisconsultationshould be directed to Bryan Arroyo, Assistant Director, Endangered Species, at (202) 208

-4646.