Title: Conservation Law
1Conservation Law
15 Sept 2009
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3What do this bear and conservation law have in
common?
4(click)
5Frequency
Average size
6Frequency
Average size
7Frequency
Average size
8Frequency
Average size
9Frequency
Average size
10How do we assign the Burden of Proof
?
Frequency
Average size
11What was Hardins position?
The social arrangements that produce
responsibility are arrangements that create
coercion. . . . . . I recommend mutual coercion,
mutually agreed upon by the majority of the
people affected.
12Major U.S. Environmental Laws
- National Environmental Policy Act (NEPA)
- http//ceq.hss.doe.gov/nepa/nepanet.htm
- Endangered Species Act (ESA)
- http//www.earthjustice.org/library/reports/Citize
ns_Guide_ESA.pdf
For complete details on any U.S. law, go to
http//www.law.cornell.edu/
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15National Environmental Policy Act(NEPA, 1970)
- Objective (NEPA 101 or 42 U.S.C. 4331(a))
- The Congress, recognizing the profound impact of
mans activity on the . . . natural environment,
declares that it will . . . use all practicable
means and measures to create and maintain
conditions under which man and nature can exist
in productive harmony.
16NEPA How It Works
- The Trigger
- Proposals for legislation and other major
Federal actions significantly affecting the
quality of the . . . environment
What constitutes major Federal action?
17Categories of Major Federal Action(Council on
Environmental Quality 1508.18)
- Plans to use Federal resources (including Federal
lands or Federal money). - cattle grazing leases
- Specific projects, including actions approved by
permit, as well as federal and federally assisted
activities. - dam construction (US Army Corps or TVA)
- waste treatment discharge permits
- federal grants to build waste treatment
facilities - Official policies and programs.
- TED requirement for shrimp nets
18NEPA How It Works
- The Result a detailed statement on
- environmental impacts
- unavoidable, adverse environmental effects
- alternative actions
- relationship between local, short-term benefits
long-term productivity - irreversible/irretrievable commitments of
resources
19The NEPA Process
(NEPA 102)
Environmental Assessment
Major Federal Action Proposed
(CEQ 1502.4, 1508.18)
Public Comment
Categorial Exclusion?
(CEQ 1501.3, 1508.9)
sufficient?
(CEQ 1508.4)
Yes
No
Yes
No
FONSI
EIS
Done
(CEQ 1501.4)
(CEQ 1508.13)
20The NEPA Process Creating an EIS
Notice of Availability
Notice of Intent
(CEQ 1508.22)
Public Comment
Interdisciplinary Review Team
(CEQ 1502.19, 1503.1-4)
Internal Review
(CEQ 1502.6)
Final EIS
(CEQ 1502.8-16)
Scoping Meetings
(CEQ 1501.7, 1508.25)
Record of Decision
Draft EIS
(CEQ 1505.2)
(CEQ 1502.8-16)
21NEPA Major Benefits
- Proactive approach to environmental regulation.
- Explicitly addresses non-economic objectives
(e.g. assure safe, healthful, productive, and
esthetically and culturally pleasing
surroundings). - Direct channel and funding for public
participation.
22NEPA Major Shortcomings
- Addresses only Federal action.
- Intensive focus on EIS compliance promotes
litigation (at the expense of conservation
activity ecological research).
23(For the most recent NEPA activity, go to
www.nepa.gov.)
24www.ecr.gov
(Udall Scholarship video)
25Endangered Species Act(ESA, 1973)
http//www.fws.gov/endangered/
http//www.nmfs.noaa.gov/pr/laws/esa/
26ESA Overview
- Determination of endangered and/or threatened
status - listing and delisting decisions (ESA 4)
- Protective measures
- cooperation with States (ESA 6)
- interagency (Federal) cooperation (ESA 7)
- prohibited acts enforcement (ESA 9, 11)
- exceptions (ESA 10)
27ESA How It Works
- Criteria for listing
- Formal listing petition must be presented to the
Secretary of Interior 90 day review. - Imperiled condition must be associated with
anthropogenic (human) effects ( 4(a)(1)). - Listing decisions must be based on the best
scientific and commercial data available (
4(b)(1)(A)).
281,331 currently listed species
250 petitioned listings awaiting review 100 in
wait gt10 yrs 73 in wait gt25 yrs Ecosystem-based
listing now being considered
29ESA How It Works
- Contents of a listing decision
- Threatened vs. Endangered status ( 4(d))
- Endangered In danger of extinction throughout
all or a significant portion of its range. (
3(6)) - Threatened Likely to become endangered within
the foreseeable future. ( 3(20)) - Critical Habitat designation ( 3(5)(A)
4(b)(6)(C)) - Recovery Plan with objective, measurable
criteria for delisting ( 4(f))
30ESA How It Works
- Contents of a listing decision
- Threatened vs. Endangered status ( 4(d))
- Endangered In danger of extinction throughout
all or a significant portion of its range. (
3(6)) - Threatened Likely to become endangered within
the foreseeable future. ( 3(20)) - Critical Habitat designation ( 3(5)(A)
4(b)(6)(C)) - Recovery Plan with objective, measurable
criteria for delisting ( 4(f))
31Critical Habitat- the Rio Grande Silvery Minnow -
Water video
Hatchery video
32ESA How It Works
- Contents of a listing decision
- Threatened vs. Endangered status ( 4(d))
- Endangered In danger of extinction throughout
all or a significant portion of its range. (
3(6)) - Threatened Likely to become endangered within
the foreseeable future. ( 3(20)) - Critical Habitat designation ( 3(5)(A)
4(b)(6)(C)) - Recovery Plan with objective, measurable
criteria for delisting ( 4(f))
33Recovery PlansYellowstone Grizzly
- 15 adult females (avg.) with cubs-of-year, for 6
consecutive yrs, within the recovery zone area
(ne 38 1997-2002). - 16 of 18 Bear Management Units occupied by
females w/ c-o-y, for 6 yrs, with no two adjacent
Units unoccupied (100 occupancy 1997-2002). - Human-caused mortality lt4 of total population
(2.5 mortality 1997-2002).
34ESA How It Works
- Protective measures
- Cooperation with States
- Cooperative agreements States retain authority
in TE species habitats, so long as State
habitat conservation plans are adequate ( 6(c)). - Federal funding States may receive Federal
funding to support State conservation plans (
6(d), (i)). - Federal vs. State laws State regulations can be
more restrictive than Federal regulations, but
not less ( 6(f)).
35ESA How It Works
- Protective measures
- Interagency (Federal) Consultation
- Consultation actions are not likely to
jeopardize the continued existence of any
endangered or threatened species, or result in
the destruction or adverse modification of its
critical habitat ( 7(a)(2)). - Based upon the best scientific and commercial
data available.
36ESA How It Works
- Protective measures
- Interagency (Federal) Consultation
- Biological Assessment Action Agencys plan to
ensure proposed actions do not jeopardize TE
species ( 7(c)). - Biological Opinion USFWS / NOAA reply, with
reasonable prudent alternatives ( 7(b)(3)(A)). - BiOps are legally binding (usually).
- Open to public comment.
37ESA How It Works
- Protective measures
- Prohibited Acts
- Take to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct ( 3(19)). - Penalties ( 11)
- Civil fines 25,000 per violation.
- Criminal fines 50,000 per violation, and/or
1 year imprisonment.
38ESA How It Works
- Protective measures
- Exceptions ( 10(a))
- Scientific research artificial propagation.
- Incidental take (permits).
- Undue economic hardship.
39ESA Major Benefits
- Assigns intrinsic value to species.
- Comprehensive coverage (Federal, State, local
jurisdictions). - Economic costs of conservation are irrelevant
(but see 7(h) cost-benefit). - Recognized as an international conservation model.
40ESA Major Shortcomings
- Species-specific.
- Reactive, rather than proactive (i.e., only
applies to imperiled species). - Shoot, shovel, shut-up mentality.
- Extreme frequency of litigation is
counterproductive. - All ESA procedures are subject to judicial review
( 7(n), 11(g)). - Courts may reimburse private litigation fees.
41Alternatives to Litigation
- Habitat Conservation Plans
- Safe Harbor Agreements
- Memoranda of Understanding/Agreement
- ----------------------------------------
--------------------------------------------------
--------- - All are Private-Federal partnerships
- All permit incidental take in exchange for
habitat conservation - All provide no surprises assurances
42Safe Harbor Agreements
(click)
43Memoranda of Understanding
The Robust Redhorse Conservation Committee
44Reading Assignments
- A Citizens Guide to the NEPA
- Citizens Guide to the Endangered Species Act