One of my happiest marital duties is being a guest speaker for my wife’s AP Government classes.  As part of her students’ preparation for the annual AP exam, she asks me to give a presentation focused on the role of the executive branch in relation to the other two main branches of government.  “The kids love stories to explain how the theory of checks and balances really works,” she reminds me each year.  With that expert advice, I call on my past government experience as a political appointee and as a career trial attorney to attempt to bring the general concept of checks and balances to life.

I gave my presentation a couple of weeks ago, but I was too early to use probably the best and most recent example of how an agency’s discretion influences how (or if) legislation is enforced, and the role that Congress may play in overseeing an agency’s exercise of discretion.

On April 26, the U.S. Fish & Wildlife Service issued guidance to its Regional Directors concerning the trigger for an “incidental take permit” (or ITP) under Section 10(a)(1)(B) of the ESA in cases where private action modifies occupied or potentially occupied habitat of listed species.  This guidance fostered some controversy, with allegations from certain environmental groups that it sends a strong message to FWS field staff that the ESA will not be enforced to promote or to protect the habitats of threatened or endangered species.  Some background is in order.

Among the many internal directives and policies from the last administration that have been reversed by new leadership at the Interior Department includes those designed to encourage habitat conservation as a means of enforcing the ESA.  Perhaps best reflected in private party/governmental cooperation to address the sage grouse in many western states, these policies drew the scorn of many in the energy and mineral industries.  They argued that these policies reflected an overly aggressive agency interpretation of its role in enforcing the ESA.  Habitat conservation measures, while laudable, should not be imposed on the development of private lands unless there was actual “harm” to a protected species.

This new guidance clearly reacts to those objections and goes further by expressly instructing what FWS staff should instruct parties regarding their obligations under the law.  The language is striking and is worth quoting in full:

“The Habitat Conservation Plan (HCP) process is applicant-driven, and that includes the threshold determination of whether to develop an HCP and apply for a permit.  That threshold determination ultimately rests with the project proponent.  Project proponents can take Service input into account and proceed in a number of ways, based upon their own risk assessment.  They may proceed (at their own risk) as planned without a permit, modify their project and proceed without a permit, or prepare and submit a permit application.”

The remainder of the guidance recounts the development of the law of incidental takes and harm, as interpreted by the agency and courts.  In the end, it suggests that an incidental take permit “is only needed when an activity (or the results of the activity) is likely to result in the take of listed wildlife and that it is the potential applicant’s decision whether to apply for an ITP.”

The implications of this guidance are significant.  In years past, I would strongly recommend that parties planning major infrastructure development with potential impacts to listed species habitat engage in “pre-application” review with local FWS officials.  This consultation could often result in an agreement on how to avoid the need for an ITP or use good planning principles for habitat conservation to gain agency support.  The process was sometimes cumbersome, but given the agency’s ESA enforcement policies, it was often the best approach to expedite project approval.

Now, I am not so sure.  If FWS staff are being directly instructed that a project proponent may proceed “at its own risk,” and that they cannot suggest that a permit is “required,” what message does that send?  If an applicant makes a good faith effort to assess its project and determines (with the assistance of experts) that no significant degradation to habitat will occur, or in fact changes its project specifically to address potential habitat impacts, what are the odds that the FWS will demand a permit?  Even if the FWS staff has not been involved in that planning, and the project is brought to their attention by interested outside parties, will they take a different position from the project applicant?

Listen up, Ms. Wagner’s AP Government classes.  Agency enforcement of existing laws is one of the most important consequences of political regime change.  Current policy, as reflected in Interior’s recent guidance, reflects deference to private action and less of an enforcement priority.  The law hasn’t changed.  How the agency will enforce that law has.  Congress plays its role in oversight of the agency.  If it feels that its laws are not being enforced as written, or that policy directives have gone too far (one direction or the other), it can call hearings to demand that agency leadership explain its actions.  If dissatisfied, Congress can further clarify its intention through legislation or budgetary decisions.  Hence, when pundits talk about the importance of the mid-term elections, the role of oversight under Democrat or Republican leadership is one of the biggest issues.

In the context of the ESA, one other governmental branch plays an oversized role.  Citizen suits under the ESA against private actors may see a large uptick in light of this new guidance.  If wildlife advocacy groups interpret the guidance as a strong message to FWS staff that enforcement of the statute for failure to get a permit will not be a future priority, they will clearly fill that breach.

I don’t know if this post will get students a “5” on the AP exam, but I hope it gives clients a window on the future of the ESA under the current administration.