Critical Habitat and the Challenge of Regulating Small Harms

This Article investigates how the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on “adverse modification” of “critical habitat.” That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 “biological opinions,” interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, this Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse modification prohibition to provide habitat protection. It also assesses the extent to which these groups are providing habitat protection by invoking other Endangered Species Act provisions. This Article concludes that although agency practice and some judicial decisions substantially depart from statutory requirements, with problematic results, the agencies are still providing substantial habitat protection through other means. It then considers the implications of these findings, first for ongoing debates about Endangered Species Act implementation and reform and then for broader discussions about legal strategies for responding to small environmental harms and the incremental degradation they cause. INTRODUCTION 142 I. THE STATUTORY REQUIREMENTS 149 A. The Critical Habitat Requirements 150 1. Definitions and Designation Procedures 150 2. Procedural and Substantive Protections 151 B. The Jeopardy Prohibition 152 C. The Take Prohibition 153 D. The Combination of Approaches 154 1. Adverse Modification and Jeopardy 155 2. Take and Adverse Modification 157 * Associate Professor, University of Maine School of Law. I thank Rachel Bouvier for statistical help; Dmitry Bam, Eric Biber, David Cluchey, Holly Doremus, J.B. Ruhl, Sarah Schindler, and Jennifer Wriggins for comments on earlier drafts; participants in the New England Junior Faculty Scholarship Workshop at Suffolk University for comments on the project concept; many Fish and Wildlife Service and National Marine Fisheries Service staff members for agreeing to be interviewed and for responding to my extensive FOIA requests; the Florida Law Review’s staff for their editorial work; and Shannon Carroll for exceptional research assistance. 1 Owen: Critical Habitat And The Challenge Of Regulating Small Harms Published by UF Law Scholarship Repository, 2012 142 FLORIDA LAW REVIEW [Vol. 64 II. METHODOLOGY 161 III. RESULTS: THE PROHIBITION IN PRACTICE 163 A. Jeopardy and Adverse Modification Determinations ...... 163 B. Project Modifications 170 1. The Prevalence of Take Findings and Conditions ..... 170 2. The Slight (but Evolving) Importance of Critical Habitat 172 C. Adverse Modification in the Courts 175 D. Summarizing Critical Habitat’s Role 180 IV. HABITAT PROTECTION AND THE NARRATIVES OF THE ESA ....... 181 A. The Persistence of Flexibility 182 B. The Absence of Capture 185 V. CRITICAL HABITAT AND THE CHALLENGES OF INCREMENTAL DEGRADATION 189 A. The Dilemma and the Critical Habitat Response 189 1. Low Thresholds and Offsite Mitigation 192 2. Planning and Standardized Threshold-Setting ......... 194 B. Praising the Complexity 197 CONCLUSION 198