Protecting Species or Endangering Development? How Consultation Under the Endangered Species Act Affects Energy Projects on Public Lands

Throughout its forty-three-year history, the Endangered Species Act (“ESA”) has been one of the most celebrated environmental laws but also one of the most reviled. After passing with strong bi partisan support in 1973, the ESA has recently faced growing opposition, amid concerns that it has failed to adequately protect species, while unreasonably impeding economic development. Much of the criticism has been directed towards section 7 of the ESA, which requires federal agencies to ensure that actions they undertake or authorize do not jeopardize threatened or endangered species, by consulting with the U.S. Fish and Wildlife Service (“FWS”). Industry groups have argued that the consultation requirement frequently stops or delays much needed energy, transportation, water supply, and other projects.This study seeks to assess the impact of consultation, under section 7 of the ESA, on energy development on public land. To this end, the study analyzes 179 consultations undertaken between FY2010 and FY2014 with respect to oil, gas, solar, and wind energy projects on public land managed by the Department of Interior’s Bureau of Land Management (“BLM”). Basic information about each consultation, including a brief description of the project involved and a list of specie affected, was obtained from FWS’s Tracking and Integrated Logging System. We also reviewed the biological opinions and concurrence letters issued by FWS and, for a subset of consultations, interviewed agency staff and industry representatives involved.Key findings from the analysis include:1. A relatively small number of energy projects authorized on federal lands between FY2010 and FY2014 went through the consultation process. The majority (eighty percent) of consultations that were carried out involved oil and gas drilling projects. Fifteen percent of consultations related to solar energy projects and five percent to wind energy projects.2. Only a small proportion (ten percent) of all oil and gas drilling projects approved by BLM from FY2010 to FY2014 were subject to consultation. In contrast, eighty-two percent of BLM approved solar energy projects and seventy-one percent of BLM approved wind energy projects underwent consultation.3. Most of the energy project consultations undertaken between FY2010 and FY2014 were completed within the 135 day time limit set in the ESA. There was, however, often significant back and-forth between FWS, BLM, and the project proponent prior to the official start of consultation. This is a concern for industry, as pre-consultation discussions can add significant time to the review process and thereby lead to project delays.4. The need to consult can also give rise to significant uncertainty for industry. The assessment of project effects and the measures required to mitigate those effects often differs markedly between, and even within, FWS offices. Similar projects may, therefore, be assessed differently depending on the FWS staff handling the consultation.5. FWS has recently taken steps to address industry concerns regarding the potential for project delays and inconsistencies in the review process. To this end, FWS has issued a number of programmatic biological opinions, which cover multiple similar actions.6. Where a project is covered by a programmatic biological opinion, consultation tends to proceed more quickly, and there is less need for pre-consultation discussions. The existence of a programmatic biological opinion can also greatly reduce the complexity of consultation and generally leads to increased certainty for project developers.