Strange Litigation Bedfellows Push Supreme Court for Transparency in Endangered Species Consultation

This is from the AFRC newsletter: definitely checks the  “things people agree on” box.

Section 7 of the ESA requires federal agencies to consult with the FWS and/or National Marine Fisheries Service to ensure that agency actions do not “jeopardize the continued existence” of a listed species or “adversely modify” or destroy designated critical habitat. Even under the best of circumstances, the consultation is somewhat of a “black box” for action agencies like the Forest Service or BLM, and even more so for timber purchasers, permittees, and others who rely on the consultation process.

On August 3, AFRC and industry partners National Association of Home Builders, American Farm Bureau Federation, and NFIB Small Business Legal Center filed an amicus brief with the Supreme Court urging the Court to rule in favor of transparency in the consultation process. The case, called U.S. Fish & Wildlife Service v. Sierra Club, addresses what parts of consultation are part of the “deliberative process” so that documents are privileged from release under the Freedom of Information Act.

The case involves a consultation by EPA where the Services prepared jeopardy biological opinions on a proposed rule for cooling water intake structures. Once EPA learned it was going to get jeopardy opinions, it stopped consultation on the initial version of the rule, rewrote the rule, and re-submitted to consultation, eventually getting no-jeopardy opinions. The Services refused to release the jeopardy BiOps, claiming they were “drafts” and therefore “deliberative.” The Ninth Circuit ruled against the Services, but the Supreme Court took the case in March.

Our brief describes how the Services’ actions can impose significant economic consequences without having to explain the scientific rationale. This case highlights a factual scenario that we have encountered where an agency will assert that it cannot select a particular alternative in planning or a project because it would not pass muster in consultation. Understanding the line between jeopardy and no-jeopardy is important for the regulated community to obtain the best outcomes when working with agencies on the ground.

Although AFRC and our partners are not often on the same side of a case as the Sierra Club, the ACLU, and The New York Times, this is an instance where a wide variety of stakeholders agree that transparency will be beneficial to the public interest. Other briefs along the same lines were filed by environmental organizations, former agency officials, and an array of media and civil liberties groups. The Court has set the case for argument on November 2, and will likely issue a decision by next June.

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