From Chapter 8, "Land Use Activities and the Section 9 Take Prohibition" by Stephen P. Quarles and Thomas R. Lundquist

The Endangered Species Act (ESA) declares that it is unlawful to "take" any endangered species of fish or wildlife anywhere in the United States, defining "take" to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." The ESA and various regulatory provisions also make it unlawful to take most threatened species of fish or wildlife. In areas inhabited by such wildlife, landowners are often uncertain whether their land use actions will be viewed as take. A landowner who wishes to be protected from take liability has several options.

A landowner could decline to undertake any activity that has any possibility of causing a take, but this would be unwelcome since it denies productive economic uses of land. Alternatively, landowners can secure immunity from potential take liability in three ways. First, they can prepare conservation plans (often called habitat conservation plans) for listed wildlife species on their lands and seek "incidental take permits," which allow land use activities to proceed under the plan's terms. Second, where the activities involve a federal agency action (such as permitting), landowners can be beneficiaries of incidental take statements issued under the ESA following consultations between the federal agency and the Fish and Wildlife Service (FWS), which is chiefly responsible for the ESA. Third, FWS's general "safe harbor" policy would encourage landowners to grow habitats preferred by listed wildlife species and, in return, allow incidental takings so long as the current or baseline population of the listed species is maintained on those lands.

Two other (rarely employed) alternatives provide landowners with greater certainty on allowed and prohibited activities. First, there is a special rule on lawful and unlawful land use activities that might affect a particular threatened (but not endangered) species. Second, the FWS could informally announce that it will not prosecute some types of land use activities that constitute potential takes of listed wildlife. Though such review is not explicitly authorized by the ESA, neither is it prohibited. As long as the guidance is limited to asserting that "if the landowner adopts specified measures, the FWS will not prosecute the following types of land use actions," and does not stray into insisting that "this particular land use action is a 'take,'" the guidance might not create the type of legal norm that requires a rulemaking under the Administrative Procedure Act or run the risk of violating established limitations on take.

Of the two alternatives (and others not mentioned), proceeding by a rulemaking provides greater security for landowners. FWS's informal view might not prevent an ESA citizen suit by an environmental group alleging a violation of the harm regulation, or even a change of mind by FWS itself. However, if FWS does state in a final rule that certain types of activities are exempt from take, this should bind FWS and all other litigants.

Is a Source of Greenhouse Gas Emissions an Enjoinable Cause of Take of a Polar Bear?

In May 2008, FWS listed the polar bear as a threatened species. This is the first, perhaps of many, species to be listed primarily due to concerns that the species is threatened by current or projected global climate change. The implications for the ESA of global climate change, and vice versa, will no doubt be significant issues in the future. One emerging issue is whether a proposed power plant or other project that emits greenhouse gases (GHG) can be enjoined because it allegedly takes or harms a polar bear. The answer appears to be no.

Contemporaneous with the ESA listing of the polar bear as a threatened species, FWS exercised its discretionary authority to not fully extend the take prohibition to a threatened species. The special rule provides that any arguable incidental take associated with an "otherwise lawful activity within any area subject to the jurisdiction of the United States except Alaska" is not a violation of the ESA. Under this rule, any suit should be dismissed that alleges that the GHG emissions associated with, for example, an oil refinery or highway in Texas would take a polar bear.

This rule was adopted as part of Interior Secretary Dirk Kempthorne's policy that the ESA not be misused as a back-door mechanism to regulate GHG emissions. The legality of the rule and of other aspects of the polar bear listing are being challenged in lawsuits brought by environmental groups, the State of Alaska, and regulated groups.

Even in the absence of this rule, the theory that a proposed project in the lower 48 states is the proximate cause of the death or injury of a particular member of a listed species seems to be impossible to prove. As the director of the Center for Biological Diversity has reportedly stated, "any bid to fight the construction of a power plant by arguing that emissions might harm a species would probably be thrown out of court, because such climate-change effects remain speculative." We would add that because there are billions of sources of GHG emissions (past, present, and future) worldwide, a plaintiff seemingly cannot sustain its burdens of (1) proving that the death or injury to a particular member of a listed species will occur to a reasonable certainty; and (2) attributing that harm to a defendant's proposed project, as opposed to other sources of GHGs.

Excerpted From:

Endangered Species Act: Law, Policy, and Perspectives, Second Edition

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Product Code: 5350185B Editors: Donald C. Baur, Wm. Robert Irvin Publication Date: November 10, 2009 ISBN: 978-1-60442-580-2 Page Count: 468 Trim Size: 7 x 10 - Paperback Sponsoring Entities: Section of Environment, Energy, and Resources Topics: Environmental Law Format: Pricing: $139.95 (Regular) $119.95 (Section of Environment, Energy, and Resources) Join Now and receive your discount!